Religious Freedom, Secular Values

Two recent superior court decisions have stated that while religious institutions have the right to their beliefs, the propagation of those beliefs must be framed within secular standards.

In its decision regarding a Jesuit school in Quebec, the Supreme Court stated in March: “These shared values—equality, human rights and democracy—are values the state always has a legitimate interest in promoting and protecting. … Religious freedom must therefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights.”

That statement was quoted by the Ontario Divisional Court in its decision regarding a Christian university in British Columbia, in June.

Loyola High School, in Montreal, had challenged Quebec’s curriculum whose stated objectives are “recognition of others” and “pursuit of the common good” by teaching the beliefs and practices of various world religions. In lower courts Loyola had argued that since it was teaching religion already, it should do so from a Catholic perspective. In the Supreme Court appeal the school changed its argument. They agreed to teach a course in world religions in a neutral tone; but when it came to Catholicism they still wanted the right to teach their perspective.

The court accepted that argument. “Having found that Loyola’s belief in its religious obligation to teach Catholicism and ethics from a Catholic perspective is consistent with its organizational purpose and operation, it is evident that [the education ministry’s] denial of an exemption from the [curriculum]—which has the effect of requiring Loyola to teach its entire ethics and religion program from a neutral, secular perspective—infringes Loyola’s freedom of religion in violation of [section 2a] of the Charter.”

“There has been enough said in the court that reiterates what the Supreme Court panel decided,” says Richard Moon, professor of law at the University of Windsor. “Parents have the right to send their kids to a private school, and the state has the obligation, responsibility and certainly the right to oversee what occurs in private schools. And to establish various curriculum requirements.” Moon’s research focuses on freedom of expression and freedom of conscience and religion.

The good portion of the court’s decision was spent weighing the rights and obligations of the parties involved. “A secular state does not—and cannot—interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests. Nor can a secular state support or prefer the practices of one group over another. A secular state respects religious differences, it does not seek to extinguish them.”

Moon adds: “So in the larger context, religious institutions, like churches, get to operate according to their own normal practices as long as it’s accepted that membership in their community is essentially voluntary. The Presbyterian Church can hire and fire clergy on the basis of accepting Presbyterianism, so exempted in that sense from human rights code on grounds of religion. But there’s something different in an education environment where it’s seen as a larger community interest.”

The other case involves Trinity Western University’s law school, which has applied to provincial law societies for automatic accreditation of their graduates so they can proceed with the process for licensing. Like many educational institutions, TWU also demands all students sign a code of conduct. TWU’s Community Covenant includes promises not to engage in same-sex sexual activities.

The Law Society of Upper Canada denied TWU accreditation, arguing their covenant denied admission to members of the LGBT community.

The Divisional Court recognized that “harassment, shaming, ostracizing, contempt, humiliation, intimidation or insults are intolerable at TWU. Homophobic, disrespectful or discriminatory remarks or behaviour is strictly unacceptable.” And that TWU met the requirements to provide a legal education.

However, the court went on to note: “On one side, there is the right of [TWU] to freedom of religion including their right to operate a law school designed for persons who share a common religious belief. On the other side, there are the rights of the members of the [law society], both current and future, to equal access, on a merit basis, to membership that [TWU], consistent with its history, has a duty to protect.”

The court sided with the law society, noting, “The Community Covenant, by its own terms, constitutes a prejudicial treatment of different categories of people. It is, therefore, by its very nature, discriminatory.” Trinity Western University’s law graduates will not be granted automatic access to apply to the Law Society of Upper Canada for status within Ontario, as is available to graduates of other law schools across Canada. TWU graduates will be able to apply personally through the law society if they want to work in Ontario.

TWU won accreditation in Nova Scotia and lost in its home province of British Columbia. It will continue to seek recognition through the courts.

Moon points out there is an important distinction between “belief” and how that belief is acted out in society. “It is one thing to say homosexuals or same-sex relationships are sinful or immoral. And another to say I can’t be put in a position that shows that I support or affirm those relationships. For example, I shouldn’t have to provide flowers or rent a hall to a same-sex couple—even though the human rights code says I cannot discriminate on basis of sexual orientation.”

That in a way is what the Christian Medical and Dental Society of Canada wants to challenge.

In a letter to the College of Physicians and Surgeons of Ontario, CMDS argued: “Freedom of conscience is protected under the Canadian Charter of Rights and Freedoms. … It is not the CPSO’s role to ensure access to abortions. Even if it were, there would be an onus on the CPSO to prove that it cannot ensure access to abortions without infringing on the Charter rights of individual physicians.”

“The big issue before us now is physician-assisted suicide and euthanasia,” Larry Worthen, executive director of CMDS told the Record. “We want to heal not harm. What we’ve learned of how this is implemented in other jurisdictions is that the safety of vulnerable people once this is legalized, is not assured. Apparently one in four physicians (in Canada) are open to participating in assisted suicide. Others do not want to participate.”

CMDS may pursue a legal course in the future. If they do, the debate will begin again. As Prof. Moon explains, “The challenge for the courts is to find a way to fit this complex conception of religious commitment and its value (as a source of meaning, purpose and identity for the individual and group) into a constitutional framework that relies on a distinction between individual choices or commitments that should be protected as a matter of liberty, and individual attributes or traits that should be respected as a matter of equality. The constitutional framework (and perhaps more deeply, our conception of rights) imposes this distinction, between judgment and identity, on the rich and complex experience of religious commitment.”