No justice for religious schools.

In January 1996, two groups of Ontario parents, whose children attend independent Jewish schools or Reform Protestant schools of the Ontario Alliance of Christian Schools, took their case for funding to the Supreme Court of Canada. The state impedes them, they maintained, from doing what they are required to do: educate their children in their religious traditions.

In addition, their disabled children are being denied in-school health services available to children in public and separate schools, they argued. So they concluded that the Education Act violated their rights to freedom of religion and equality under the law.

Supreme Court

The appeal (from the Ontario Court of Appeal) was dismissed on all points by the majority of the Court last November. Two of the nine Justices found that there had been an infringement of rights; both recommended alterations in the Health Insurance Act, and one, Mme. Justice L'Heureux-Dube, was prepared to declare the Education Act unconstitutional.

But the majority of the Court was unmoved by arguments founded on the conscientious exercise of religious conviction. The most charitable reading of their judgement is that they are typical secular modernists to whom the religious conscience is incomprehensible. Between the lines, their message is that religious conviction is eccentric, annoying, and even dangerous.

Of the 48 pages of majority reasons, 23 are devoted to establishing the constitutional status of the secular common school system in Ontario. These pages show that the majority of the Justices have accepted the claim of the 1985 Shapiro Report (Commission on Private Schools in Ontario) that "the public school context represents. . . the most promising potential for realizing a more fully tolerant society."

This is a myth; that is, an idea without evidence. Yet it sounds so rational that it seems unnecessary to prove it. Hence Justice McLachlin found the virtues of the public school so obvious to "common sense" that "scientific demonstration of cause and effect is not necessary." In other words: "Don't confuse me with the facts--my mind is made up."

Of course, if private religious schools are conducive to intolerance, so are publicly funded Catholic ones. The Court's acceptance of the constitutionally protected Catholic school system is grudging at best. Justice Iacobucci calls it "a child born of historical exigency," and a "privileged status" which we are forced to leave alone. Justice Sopinka sees mandated denominational schools as "a considerable impediment to reform designed to modernize the education system." They have become a "costly yoke," he said, which one province is even now seeking to "discard."

Fear of parental freedom

What really drives the Court's opposition to funding of independent schools is the fear that, given free choice and fair access, many Ontario citizens would prefer the "costly yoke," and this would mean the demise of the common school system. The Court made no attempt to disguise this. Justice McLachlin said: "If funding were provided . . . many of those who now send their children to secular schools would instead send [them] to independent religious schools."

Said Justice L'Heureux-Dube: full funding of religious schools would lead to "an outflow of students from the public school system of potentially so great a magnitude as to change that system in a fundamental manner." The objective of encouraging tolerance becomes linked to discouraging non-secular education.

Seven of the nine highest ranking justices in our land, therefore, discount the dictates of religious faith. And they are indifferent to the real nature of secular public education which, of course, is not neutral, not tolerant of diversity, but leagued to an ideology profoundly at odds with the teaching of all religions.

Implications

Mme. Justice L'Heureux-Dube stood alone in grasping the implications of this case. She rejected the opinion of Ontario Appeal Court Chief Justice Charles Dubin (now retired), who had testily insisted that the dictates of religion were merely "emotional" rather than "moral."

She understood that, far from protecting the religious freedoms of all citizens, the Education Act "gives a clear message to these parents that their beliefs and practices are less worthy of consideration and value than those of the majoritarian secular society."

This unhappy message to the Jewish and Protestant parents is part of the larger message that existing denominational education rights are a dispensable relic, hanging on by a thread of constitutional technicality. Unless Catholics fight for their schools and for the rights guaranteed them in the B.N.A. Act of 1867, they will find out just how eager their government is to snap that thread, and how unlikely it is that the courts will entertain any objections.