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Supreme Court hears religious freedom arguments in Loyola case

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A number of interveners have joined in on the private school's side
By Deborah GyapongSt. Francis Xavier, St. Ignatius of Loyola and Blessed Peter Faber are shown in an icon. CNS photo / courtesy of Jesuit General Curia.St. Francis Xavier, St. Ignatius of Loyola and Blessed Peter Faber are shown in an icon. CNS photo / courtesy of Jesuit General Curia.

The Supreme Court of Canada heard arguments in the Loyola case March 24 on whether religious freedom is both an individual and a corporate or communal right.

An array of interveners, ranging from the Canadian Civil Liberties Association, the Archdiocese of Montreal, the Catholic Civil Rights League and the Evangelical Fellowship of Canada to the Christian Legal Fellowship and the World Sikh Organization, argued on the side of Loyola High School, a private Jesuit school, in its fight to teach an equivalent rather than Quebec's mandatory Ethics and Religious Culture program (ERC). No interveners argued on the side of the Attorney General of Quebec.

The court also heard arguments that the ERC took an approach that religions are "of equal value" and either "equally false" or that truth is irrelevant. One intervener warned Canada's reputation as a free and democratic society was at stake. Others argued Quebec's campaign to bring in the secularist Quebec Charter of Values is a sign of hostility towards religious expression.

Attorney Mark Phillips, arguing on behalf of Loyola, told the court Loyola was not seeking an exemption from the program, only the opportunity to teach its own world religions and ethics course.

While Loyola agreed with the objectives and content of the ERC, it objected to its requiring teachers to adopt a "neutral" stance while presenting material.

The problem is Loyola is "forced to disconnect from its own tradition when teaching its own faith and forced to take no position on ethics," he said.

"Loyola is not asking for the moon here," he said. "We want to be true to who we are," in our "group identity and we want that respected."

A Catholic school can and should teach other religions from a neutral standpoint, but it cannot adopt a neutral standpoint in relation to teaching about Catholicism, "otherwise it is not a Catholic school," Phillips said.

As for ethics, Phillips gave as an example a student he wished to be a playboy. Under the ERC's demands of neutrality, the teacher could say nothing about the Catholic ethical position but would have to act as a mere facilitator.

Arguing for the Attorney General of Quebec, Attorney Benoit Boucher said the ERC has a "completely different objective" from that of the course offered as an equivalent by Loyola. That objective is to encourage respect for differences and the common good. He rejected the idea the course infringed on Loyola's religious freedom.

"The objective is not to impose moral rules or study the doctrine," Boucher said. Instead, its object is to encourage reflection and dialog, and to do so, the teacher must show impartiality and avoid influencing the points of view of the students.

The Loyola program seeks to teach faith, the ERC aims to reflect on faith to show that regardless of religion everyone deserves respect, Phillips said. This relates to the very nature of the ERC.

Loyola would be free to teach Catholicism from a Catholic point of view at other times. Only for 250 hours during the high school years would the school be forced to adopt the neutrality stance for the ERC; the rest of the time it could be fully Catholic, Boucher argued.

Quebec has also argued a religious corporation cannot have a conscience or be said to have a religious belief.

The Canadian Civil Liberties Association (CCLA) intervened on behalf of the communal aspect of religious freedom. Jean-Phillipe Groleau argued against seeing religious liberty as merely an individual right and ignoring its "communal and associational aspects."

The Catholic Civil Rights League, in a joint-intervention with the Association of Catholic Parents of Quebec, Faith and Freedom Alliance and The Association of Coptic Christians of Montreal argued for the religious freedom of institutions.

In modern Canada, it is virtually impossible for religious groups to manifest without organizing through a legal corporation, said Ranjan Agarwal for the League et. al. "If a corporation is formed for the exercise of religious belief, then that corporation should enjoy the protection of the Charter."

"It's practically impossible for religious groups to operate without the protection of legal personality," he said. Without it, it's impossible to buy or lease land or buildings for holding worship services, engaging in charitable work or disseminating the faith through educational institutions.

Robert Reynolds, representing the Christian Legal Fellowship told the court international law "take seriously the right of parents to choose their children's moral and religious education."

He noted that one of the appellants, John Zucchi, who joined Loyola's case on behalf of his son who was a student at the school, wanted his son to be educated from a Catholic perspective. There was "no attempt to balance the rights of the appellant," Reynolds said. "The infringement here is unreasonable and cannot be justified."

Reynolds said the state has "taken upon itself to teach religious and ethics in the schools in Quebec."

"In order to do so, it has developed its own conception," he said. "It claims to be neutral but is fundamentally hostile to how most religions view themselves."

The state's doctrine of "normative pluralism," found in the ERC, sees religious faith as a "man-made phenomenon," and the approach is "deliberately agnostic."

"Teachers are forbidden to examine claims of religions on their own members or to delve into truth or falsity of these claims," he said. Instead the ERC puts an emphasis on "outward expression," on the superficial.

Children are assigned to create their own religion as if religion is man-made, he said.

The state's course clashes in a fundamental way with orthodox Christianity, both Catholic and Protestant, he said. The state "views all religions as equally valid because they all result from human efforts."

Christianity sees true religion not as a human invention but a response to divine revelation, he said.

All religious faith is a result in many cases of a search for truth in the ultimate sense, he said.

The ERC requires schools to "adopt the state's agnostic approach," and its message is that "all religions are of equal value, that all are equally false, or at the very least, truth is irrelevant."

Arguing for the Seventh-day Adventist Church of Canada et. al., Gerald Chipeur said, "Canada's reputation as a free and democratic society is on the line."

"Will we promote diversity or silence people?" he asked, noting there is case after case of teachers being prosecuted in other countries for what is said in other countries. In numerous instances, teachers are being silenced in country's that enforce blasphemy laws."

Chipeur said if the impact of the Minister of education's policy is "to silence confessional expression of a Catholic educator in a Catholic school, then that policy takes on a hostile edge."

The onus on the Quebec government is "to accommodate as soon as the need to accommodate was made plain," he said.

Attorney Albertos Polizogopoulos, arguing for the Evangelical Fellowship of Canada (EFC), pointed out the Supreme Court had been "unequivocal" in its support of "the right to manifest religious beliefs without state interference."

Loyola is a private, English language school in the Jesuit tradition in a major city of a predominantly francophone province with a history of Catholicism but a government that has "publicly expressed hostility to religion," said Polizogopoulos, noting the school's situation cannot be divorced from its context.

The Quebec government's "public campaign" to "remove public manifestations of religious symbols" and outwardly religious persons from the public service, shows the government is "hostile to religion in general in the public square," in a "society where they are a marginalized sector of society," he said.

Milton James Fernandes, arguing for the Corporation of the Archdiocese of Montreal, noted Loyola was founded in 1848, one year before the Archdiocese of Montreal incorporated. The legal incorporation did not take away the jurisdiction the Catholic Church had in terms of overseeing the Catholic faith.

The Archbishop of Montreal has an "obligation to survey" what constitutes a Catholic education and to be in relationship to Loyola and other Catholic institutions, he said.

The World Sikh Organization's lawyer Palbinder Shergill defended the communal nature of religions, noting "it is impossible to be a Sikh by oneself," but one must engage in mandated public worship. She also noted "minority religious groups are less able to protect their members" and are "more vulnerable to government intervention."

Zucchi, a McGill University historian, attended the hearings on the case launched with Loyola on behalf of his son. "I was very pleased how our lawyer Mark Phillips presented the case," Zucchi said. "I was pleased with the kinds of questions that came from the judges. They really took very seriously our concerns."

Zucchi noted the judges "took very seriously the question of religions as a corporate expression."

Last Updated on Wednesday, 26 March 2014 07:44  

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