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Pluralism, Religion and Public Policy


Can there be any consensus in a pluralist society respecting the common good? Can notions such as 'the dignity of the human person' or 'equality of persons' or 'human rights' be articulated in such a way as to guide effectively our legislators, judges, and those charged with overseeing public welfare? What role should religion play in determining the content of these notions – or in shaping policies on economics, education, health care, scientific research, foreign affairs, or the global community? It is often said that ours is a 'secular' society, but what exactly does that imply? The Pluralism, Religion & Public Policy project is designed to bring together people from academia, law, politics and religious institutions to debate some of the fundamental issues that must be faced in addressing such questions.

Current Religion and Public Policy Issues:  The Loyola Case

On 18 June 2010 L'honorable Gérard Dugré delivered his much-anticipated judgment in the Ethics and Religious Culture case, Loyola High School and John Zucchi v. Michelle Courchesne, in her capacity as Minister of Education. He concluded inter alia that "the obligation imposed on Loyola to teach the ERC course in a secular manner is totalitarian in nature and essentially tantamount to the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus" (par. 331). The judgment is available in English. Here are the facta filed on appeal: Government Factum and Loyola Factum. Professor Farrow's Expert Report to the Court, which includes an analysis of 'normative pluralism' and the principles of Catholic education, is also available: Loyola Report.

Oral arguments were heard by the Court of Appeal on 7 May 2012, and on 4 December that Court overturned the decision of the Superior Court. Several crucial legal issues remain unresolved, including the question as to whether religious corporations such as Loyola can claim freedom of religion; also vital is the question as to whether mandating a teaching posture contrary to one's religious commitments infringes freedom of religion in a 'negligible' and justifiable manner, as the Court of Appeal seems to think, or whether it is (as the Superior Court claimed) a fundamental violation, beyond the proper remit of the State.

On 13 June 2013, the Supreme Court of Canada granted leave to appeal (memorandum_of_argument.pdf). For further commentary, see here, and here. Read Loyola's Supreme Court factum. The case was heard at the Supreme Court on 24 March 2014, and a judgment is expected by November.

'Ethics and Religious Culture - Why the Fuss?'  Listen at McGill Podcasts or download this CREOR lecture contextualizing the issue: creor_erc.pdf.

Excerpt:  “Stéphane Dion, who as Minister of Inter-governmental Affairs tabled the 1997 resolution to amend the Constitution Act so that Bill 109 could come into effect, observed at the time that ‘the right to religious instruction is still guaranteed under Section 41 of the Québec Charter of Human Rights and Freedoms, a document that has quasi-constitutional status according to the Supreme Court of Canada.’  But this guarantee proved worthless.  When Bill 95 was passed in June 2005, the Québec  Charter was amended – without public notice, meaningful debate, or a recorded vote.  Article 41 was extensively revised, removing the right of parents ‘to require that, in the public educational establishments, their children receive a religious or moral education in conformity with their convictions.’  That right was replaced with a right to give their children private religious instruction as long as it does not violate ‘their children's rights or interests.’  No clarification was offered as to who will decide what those rights and interests are.”

A Related Development:  The Supreme Court decision in the Drummondville case, which (unlike the Loyola case) concerned the right of parents to exempt their children altogether from State-mandated lessons in religion and ethics, was released on 17 February 2012. The Court concluded that the appellants had not proven that their religious liberty was violated by the Ministry’s refusal to exempt their children from the ERC program: "Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter." – Deschamps, J., S.L. v. Commission scolaire des Chênes, 2012 SCC 7, par. 40

This raises a host of questions:  Was such a suggestion really being made, or were the parents merely asking that the State not interfere with their children's private religious instruction by forcing upon them what they regard as an incompatible form of instruction under the guise of religious literacy? Who should be the judge of compatibility? What is the current relation between the (declining) rights and duties of parents and the (advancing) rights and duties of the State with respect to religious literacy? What kind of literacy is the State aiming at, and under what circumstances might its aims be construed as a violation of parental rights or of religious liberty? Does "the early exposure of children to realities that differ from those in their immediate family environment," which is no doubt "a fact of life," constitute grounds for the State to enforce certain kinds of exposure? Which kinds? And is it really possible for the State to neither favour nor hinder any particular belief or belief-system (ibid., par. 32), or for its neutrality to mean that "the State cannot formally take any position on the true and the good"? What then of the Charter of Rights and Freedoms itself, or of the State's determination to define and defend "the multicultural reality"? Do these not entail such commitments?  

The 2013 PRPP symposium on Religious Freedom in Education explored the Loyola case and related matters.

Current Religion and Public Policy Issues:  The Government Action Plan Against Homophobia

In December 2009 the Premier and the Justice Minister unveiled the Politique québécoise de lutte contre l'homophobie. The Government action plan against homophobia 2011-2016 followed on 20 May 2011 "as a joint undertaking by eleven government departments".  November 2011 saw "the creation of a university Research Chair on Homophobia," which was filled in the Department of Sexology at Université du Québec à Montréal (UQAM) as an important component of that action plan. The chair's current occupant is Line Chamberland, who participated in the process that led to the plan.

What are the implications of a 'research' chair designed for combat rather than consultation? Designed, that is, to support a State-approved ideology and ferret out resistance to it? What will be the impact of the action plan as a whole? Drafted in response to the first appearance of the Politique québécoise de lutte contre l'homophobie, The Government Declares War examines the policy and identifies the threat it poses to academic, civil, and religious freedom. 

Here is a more irenic article that considers some misunderstandings prevalent among both supporters and resisters of the 'anti-homophobia' movement. Here is the Anonymous Registry and a report on the Government's new ad campaign

Meanwhile, south of the border, the Windsor judgment, in which Justice Kennedy seemed to be channeling Jeremy Bentham, has postponed the fundamental decision about marriage law in the United States. This amicus curiae brief is worth pondering.

Current Religion and Public Policy Issues:  What is a secular state? 

Is a good 'secular' state a state that enforces what Richard John Neuhaus famously called 'the naked public square'? A state, to change the metaphor, that imposes The Yoke of Neutrality?  Who, it may be asked, is proselytizing whom?

The English Speaking Catholic Council submitted a brief_on_bill_60 that gets to the point.  Professor Farrow addressed the underlying challenge in Catholics and the Neutral State. A podcast is available at catholicstudies.ca.

Current Religion and Public Policy Issues:  Abortion

The National Post has recently published Hard truths about abortion. Another 'hard truth' deserves notice, namely that in Canada two religious ladies who have peacefully championed natural justice for the unborn, Linda Gibbons and Mary Wagner, have paid for it with jail sentences.  And in the UK it emerged in March 2014 that NHS hospitals were burning fetal remains, along with other organic "waste," to help heat their buildings. On Canada's lack of an abortion law see the commentary by (ret.) Justice Mitchell. Update: Wagner convicted but released.

Current Religion and Public Policy Issues:  Euthanasia (Bill 52)

Geoffrey Kelley, MNA, is among those who claim that "the principle goal of the proposed legislation is to improve access to palliative care." This is false. What the bill actually seeks to do is to redefine suicide and murder as natural death, indeed as a form of healthcare, which is why the pioneers and practitioners of palliative care such as Balfour Mount oppose the bill, as do many others (see for example  mcgill_professors_and_researchers_against_euthanasia.pdf and the statement of the Catholic bishops). Mr Kelley and friends also claim that, as amended, the bill accommodates conscientious objection, which is only partly true.  It still requires referral, which is complicity in murder. Practical opposition to the bill, if it survives constitutional challenge, will come into focus through civil disobedience at just this point. 

Update: Bill 52 passed 94–22 on 5 June 2014, a strong majority of the National Assembly endorsing the thesis of the PQ MNA, Véronique Hivon, that "Dying with dignity means dying with the least amount of suffering." What this absurd thesis does to the very concept of "dignity" few seem to have pondered. Or for that matter what it does to the concept of sacrificial suffering and death – ironically this was the eve of the 70th anniversary of D-Day. Nor should it be forgotten that it was with similar falsehoods that the Nazis embarked on the road on which we have now embarked: 

"Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude toward the nonrehabilitable sick.” (The New England Journal of Medicine, 14 July 1949: Major Leo Alexander Medical Science Under Dictatorship.pdf)