Debate over Trinity Western University's bid to open a new law school in B.C. has overshadowed the religious freedom fight faced by a 166-year-old Montreal high school.
Yet when the Supreme Court of Canada hears arguments next month in the dispute between Loyola High School and the government of Quebec, the implications will be at least as far reaching as TWU's bid to marry an evangelical Christian ethos with accreditation of our next generation of lawyers.
The private B.C. liberal arts college is embroiled in controversy, of course, for its intention to have law students sign the school's community covenant governing, among other things, sexual conduct. Some provincial law societies have warned they might refuse recognition of Trinity law degrees because the covenant is deemed discriminatory of married gay couples.
The Loyola case steers clear of the turbid waters of sexual politics, but could chart an equally decisive course for Canadian society. The school is challenging a Quebec government decree that one lower court judge called near-totalitarian in its arbitrariness. It is also asking the Supreme Court to declare, against the claim of Quebec's attorney general, that Charter guarantees of religious freedom apply corporately as well as individually.
The country's highest court has never specifically declared itself on the issue, though it has issued judgments that are read as making religious freedom a purely individual right, devoid of institutional, associational, or corporate analogue. In the Amselem case, for example, the Supreme Court ruled that a Jewish individual's sincere belief in what Judaism required of him trumped rabbinical expert testimony that the faith demanded no such thing.
Loyola will argue for a wider view: As a private Catholic Jesuit school, Loyola's inherent nature is to exist corporately for a religious purpose. If it is denied the freedom to fulfill that nature by carrying out its corporate religious purpose, it will naturally cease to exist. If denial of freedom causes it to cease to naturally exist, clearly its freedom has been violated.
That freedom had been understood since Loyola began teaching students in 1848. Graduates such as Georges and Jean Vanier, and federal Finance Minister Jim Flaherty could never have imagined otherwise. But in 1997 Quebec restructured its education system along linguistic, rather than confessional, lines. The change begat a world religions and secular ethics program, Ethics and Religious Culture, obligatory for all students—public, private, and home-schooled.
Parents contested ERC's content itself as an infringement of religious freedom, but the Supreme Court disagreed. Loyola, by contrast, insists only that it must be free to adapt ERC to a Catholic perspective using Jesuit pedagogy.
Such program adaptations are permitted under Quebec's education act—e.g. for sports and arts schools—but Loyola was denied because, as a confessional institution, it was considered untrustworthy to teach world religions or ethics except as specified.
A lower court found the denial unreasonable. Quebec's appeal court decided, however, that being forced to teach ERC raw for only a few hours weekly constituted minimal impairment. As the school's principal Paul Donovan argues, it was like telling Jews or Muslims to put just a little pork in the soup.
"It's like saying, 'Okay, we're going ban prayer for only one day a week, and that day happens to be Sunday. But it's okay because you can pray all you like the other six days a week,'" he says.
Just as the State cannot limit individuals of religious faith to being part-time religious believers, so institutions that embody their beliefs must not be forced to operate on a stop-start basis. Religious faith dwells within individual hearts, but it necessarily extends to the world. It belongs, where two or more are gathered, to a body; it becomes corporate.
Asking a Jesuit school to be less than full-time Catholic—or an evangelical Christian school to operate part-time against its own ethos—is no less a violation of religious freedom than ordering a Sikh to remove his turban to join the RCMP.
A Supreme Court affirmation of this reality could set off shock waves in a Canada accustomed to regarding religious belief as a purely private matter among individuals behind closed doors—very much the way Canadians were accustomed to regarding gays two generations ago.
A Loyola legal victory might even remind those trying to subvert Trinity Western's law school that protections for our historic freedoms are not limited to the actors in current sexual political debates. They apply to all who wish to be as we truly are.
