JURIST Guest Columnist Diana Ginn of the Schulich School of Law at Dalhousie University says that a recent decision by the Supreme Court of Canada affirms the nation's multicultural heritage at the expense of its promise of religious freedom, and that both values could have been maintained by more carefully adhering to precedent...
On February 17, 2012, in SL v. Commission scholaire des Chenes, the Supreme Court of Canada handed down a significant ruling on the freedom of religion. At issue was whether a mandatory program for school children on Ethics and Religious Culture (ERC) infringed on the religious freedom of parents who objected to it. The Court concluded that the school board had not violated the appellant parents' rights by refusing to exempt their children from the program. While the parents' arguments were rejected by the full Court, two of the nine justices held that with fuller information regarding what was actually taught in the ERC program, it might be possible for these or other parents to prove a violation in the future. The case is significant for the way in which it applies and, arguably, narrows the test for determining whether freedom of religion has been violated. The case is also noteworthy for the emphasis which the majority places on the multicultural nature of Canada, an emphasis which may restrict the scope of freedom of religion.
The program on Ethics and Religious Culture was introduced in Quebec schools in 2008, in order to provide moral education and allow religion to be studied from a cultural perspective. The parents in SL objected to the program on the grounds that it was their duty (and not the school's) to educate their children about religion. Further, the parents argued that the program impeded their religious instruction of their children by introducing moral relativism, thus suggesting that all religions or philosophies are of equal value.
In Canada, freedom of religion is one of the rights and freedoms protected by the Charter of Rights and Freedoms. If it is proven that a Charter right has been violated by state action, then the government may attempt to show that the violation is a "reasonable limit prescribed by law ... [that] can be demonstrably justified in a free and democratic society." In SL, the Court focused entirely on whether freedom of religion had been infringed; having answered that in the negative, there was no need to consider whether such an infringement might be justified.
The test for determining whether religious freedom has been violated was set out eight years ago by the Supreme Court of Canada in Syndicat Northcrest v. Amselem. There, the majority held that
freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.In Amselem, a number of Orthodox Jews living in a condominium believed that celebrating the festival of Sukkot required them to build their own sukkahs on their balconies, in contravention of the bylaws of the condominium corporation. Despite evidence from a rabbi that Judaism does not require individual sukkahs, the Court found that the appellants' freedom of religion had been violated.
In SL, the Court accepted that the couple was sincere in their religious beliefs, but held that they had not shown, objectively, that their ability to pass on their Catholic faith was infringed by requiring their children to attend the ERC program. Reviewing the admittedly limited information available on the ERC program, the majority of the Supreme Court agreed with the trial judge that providing children with "a comprehensive presentation of various religions without forcing the children to join them" did not infringe freedom of religion. To hold otherwise would be a "rejection of the multicultural reality of Canadian society and ignores the Quebec government's obligation with regard to public education."
Arguably, in SL the Court takes a narrower view of freedom of religion than in Amselem. In Amselem, the appellants' belief that celebrating Sukkot required individual sukkahs was sufficient to found a freedom of religion claim once they were denied the right to construct such sukkahs. A parallel approach would suggest that once the Court in SL found that the parents were sincere in the belief that they were required not only to teach their children about Catholicism, but also to protect them from the confusion of exposure to teachings about other religions, this should be sufficient to ground a freedom of religion claim, since the ERC program would have inevitably exposed the children to such teachings. Of course, that does not necessarily mean that the parents were entitled to an exemption, but once a violation was shown, the onus would then shift to the state to justify the violation.
Instead of focusing on whether or not the ERC program was incompatible with the parents' religious beliefs, the Court instead focused on the state's duty of neutrality and on the multicultural character of Canadian society. Certainly, a government would be precluded from introducing educational material that favored one religion over another, or religion generally over non-religion (or, non-religion over religion.) However, the parents in SL were not demanding that their children's school teach Catholicism as the one true faith. Instead, they were asking that their children be exempted from a program that in their view interfered with them teaching their children about Catholicism as the one true faith. It is hard to see how an exemption from the program would have undermined the neutrality of the state.
Stronger arguments against granting an exemption might be grounded in multiculturalism; perhaps, as suggested in a statement of the Quebec Minister of Education quoted by the Court in SL, "All schools must teach students to respect different allegiances." If it could be shown that exempting children from courses such as the ERC program would likely foster enclaves of disrespect for the multicultural and multifaith nature of Canada, then mandatory attendance in such course might well be a legitimate limitation. However, under the Amselem approach, these would be arguments to be weighed at the second stage of determining whether the violation of a constitutional right can be justified, rather than at the first stage of determining whether such a violation has occurred.
The Court's commitment to upholding multiculturalism runs strongly throughout the decision. This commitment is both laudable and in keeping with Section 29 of the Charter, which states that "the Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians." However, by using multiculturalism as the lens through which to determine whether freedom of religion has been infringed, rather than as a strong argument at the justification stage, the Court runs the risk of diluting constitutional protection for freedom of religion. Certainly if protection of certain religious beliefs might harm others in the exercise of their rights, that would be a reason to find a restriction on religious freedom justified under Section 1 of the Charter. However, to judge the validity of religious beliefs at the first stage of analysis, by measuring the ability of those beliefs to accommodate a multicultural and multifaith perspective, raises a concern that those whose beliefs do not fit within prevailing societal norms are less likely to have their freedom of religion recognized. Arguably, constitutional recognition is most needed for those whose beliefs run counter to mainstream thought. This is not to validate, in a moral sense, religious beliefs that are insular or even hostile to other faiths, but instead to argue that such beliefs should not be rejected as unworthy of constitutional protection at the first stage of the legal analysis. Constitutional protection should be withheld only if it can be shown that state intrusion is demonstrably justified in a free and democratic state.
Diana Ginn is an Associate Professor at Dalhousie University's Schulich School of Law, where she focuses her research on issues involving law and religion, aboriginal self-government, health law and administrative law, among others. Prior to her academic career, Ginn conducted legal research for the Law Reform Commission of Nova Scotia, and served as legislative counsel for the Government of the Northwest Territories.
Suggested citation: Diana Ginn, Balancing Religious Freedom with Multicultural Values, JURIST - Forum, Mar. 9, 2012, http://jurist.org/forum/2012/03/diana-ginn-religious-freedom.
This article was prepared for publication by Caleb Pittman, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com