On February 17, 2012 the Supreme Court of Canada ruled on the latest challenge by parents to religious freedom and education.
In S.L. and D.J. and Commission scolaire des Chênes and Attorney General of Quebec the Supreme Court of Canada was asked to decide whether or not the Province’s Ethics and Religious Culture (“ERC”) Program, which became mandatory in Quebec schools in 2008, infringed on S.L. and D.J.’s right to freedom of religion.
S.L. and D.J., two parents of school aged children attending a public school, sought to have their children made exempt from the ERC Program, because they believed that the ERC Program interfered with their obligation to pass on their Catholic faith to their children and caused their children to question their faith at an age when they should be following parental direction in matters of religion.
The Supreme Court of Canada applied a well established two part test to determine whether or not the Province infringed upon the parents’ right to freedom of religion. The first step of the test is subjective and requires the person to demonstrate they have a sincerely held religious belief. The second part of the test requires the person to demonstrate that this belief has been infringed by state action.
The Supreme Court of Canada accepted that S.L. and D.J. sincerely held religious beliefs. However, the Court was unanimous in its decision that there was no evidence that the ERC Program had interfered with those sincerely held beliefs. In other words, the parents did not prove that the ERC Program interfered with their obligation to pass on their Catholic faith to their children nor did they demonstrate that the ERC Program caused their children to question their faith at an age when they should be following parental direction in such matters.
The Supreme Court of Canada commented that the concept of state religious neutrality has grown out of the multicultural makeup of Canada and a need to protect minorities. The goal is to permit all religions to exist and practice their beliefs without being stymied by governmental institutions. The Court commented that such an objective is achieved when the state neither favours nor hinders any particular religious belief, when it shows respect for all religions as well as respect for the decision not to hold any religious beliefs, and takes into account competing rights.
The Supreme Court of Canada found that the ERC Program was neutral in its teachings about religion, morals and ethics and that the Program espoused universal truths. However, the parents who sought to have their children made exempt from the Program argued that the obligation to teach morals, ethics and universal truths, was their religious duty. They have since removed their children from the public school system and placed them in a private Catholic school, which has been exempted from the ERC Program.
The Supreme Court of Canada’s decision in S.L. and D.J. and Commission scolaire des Chênes and Attorney General of Quebec and specifically, its application of the second part of the legal test regarding infringement of freedom of religion as it applies to educational programming, might have a significant impact on education. For example, the Ontario Government’s Bill 13, Accepting Schools Act, and the Government’s previous attempts to create curriculum regarding sexual education have faced criticism on the basis of freedom of religion. The present case suggests that the Supreme Court of Canada will require significant evidence demonstrating interference with religious beliefs in order to find that the right to religious freedom has been impeded.