Attorney Mark Philliips represented Loyola High School at the Supreme Court of Canada on Mar. 24. Photo by Deborah Gyapong

Gauging the rights of religious institutes

  • March 27, 2014

Religious and conscientious freedom is at the heart of several ongoing news stories. Some of the stories involve institutions and others individuals, but they all raise the troubling spectre that these rights may exist more in theory than in practice.

The Supreme Court of Canada heard the appeal of Loyola High School on March 24. The Montreal boys’ school is seeking the right to teach Quebec’s mandatory Ethics and Religious Culture (ERC) course from a Catholic standpoint. (A lower court upheld the school’s request, calling the province’s insistence on “neutrality” totalitarian, but the province appealed.) In essence, the school has been told to leave Catholicism at the door when teaching the program. The school argues that the demand is all but impossible and, in any case, unjustified in a Catholic environment.

The case highlights issues concerning both institutional and individual religious freedom in that it raises the question of whether institutions have rights and freedoms in the same sense that people do. The government’s imposition of the program challenges the rights of parents, teachers and students who choose the private school precisely because of its Catholic character. Due to the fundamental importance of this question, 10 interventions were approved by the Supreme Court, including one from Archbishop Christian Lépine of Montreal.

Many of the intervening parties, in addition to arguing in favour of multiculturalism, emphasized that religious institutions have religious freedom rights that are enshrined in both the Quebec and Canadian Charters of Rights and Freedoms. By requiring Loyola to teach and manifest a non-religious — albeit not anti-religious — world view, the government infringes on Loyola’s sincerely held religious beliefs and violates its freedom of religion.

A similar conflict has been playing out in the United States throughout the rollout of “Obamacare.” A government mandate requires employers’ insurance plans to cover medical services including abortion, contraception and sterilization even if the employer holds sincere religious beliefs opposed to such practices. To date, approximately 90 lawsuits have been brought over this matter. At stake is the right of a Catholic-run institution to refuse to pay for services it deems immoral. Representatives of other religions are watching carefully as the outcome will have a bearing on their constitutional rights as well.

The exercise of religious and conscientious freedom was also highlighted by the recent case of three Ottawa doctors who refused on religious grounds to prescribe artificial contraceptives, abortion and sterilization. In keeping with the policy of the College of Physicians and Surgeons of Ontario, the doctors posted their position so that patients were notified ahead of time and given alternatives to discuss these services. The policy is not a new one, but controversy erupted when a patient, claiming to be unaware of the policy, was refused a prescription for birth control pills and went online to complain.

In the exercise of balancing religious freedom with the rights of others, this should not have been a difficult issue to resolve. The patient was able to obtain the prescription elsewhere in a timely way and no one faced any real inconvenience. But when the patient went public on Facebook, and a radical feminist group started a comment board, opposition to the doctors’ stand was very strong and, frankly, intolerant. To cite just one example: “The only sane solution is to revoke his licence unless he agrees to perform the duties for which he is being paid,” because he had chosen “the wrong damned profession.” Similar sentiments were expressed on a call-in show.

Why the hostile reaction over a matter where a religious difference was accommodated with no hardship to anyone involved? In all likelihood the real issue was the doctor’s decision to invoke a religious belief that is out of step with “mainstream” media and other opinion-makers. If the controversy had involved a group of doctors trying to establish an abortion facility in a hospital owned by the Catholic Church I suspect public opinion may have gone differently.

Given the current issues in bioethics and the political push for euthanasia in many jurisdictions, the religious and conscientious freedom of medical professionals must be respected. The question of the future could easily be whether doctors have the right to refuse to participate in the killing of patients. That is one reason why their rights must be well-established now.

(McGarry is Executive Director of the Catholic Civil Rights League of Canada.)

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