My first serious engagement in public policy matters occurred in 1997 when I was asked to join the Groupe de travail sur la place de la religion à l’école publique du Québec. Our mandate was to reflect on the place that religious teaching should have in Quebec’s public schools. Quebec was already in the process of eliminating religious school boards, but that administrative measure left untouched the content of religious teaching in Quebec’s public schools. Parents of a certain age will remember that for a number of years, they were required to tick off a box when signing their kids up for school indicating whether they wanted them to receive Catholic religious teaching, Protestant religious teaching, or non-confessional moral education.

That situation was clearly unstable. First, now that schools in the public system were no longer Catholic or Protestant, it required of each school that it provide three different kinds of course, a logistical nightmare for resource-strapped public schools. Second, because it granted privileges to Protestants and to Catholics that it did not grant to anyone else, it violated the equality guarantees under the Charter of non-Christians, and thus required the invocation every five years by the National Assembly of the notwithstanding clause. Our mandate was to find a way of integrating religion into the public school curriculum in a manner that would respond both to the practical and the constitutional quandary.

There were three options open to us. We could recommend that all religions receive the privileges that Catholics and Protestants now receive. We could at the other end of the spectrum of possibilities suggest that religion be removed from public schools entirely. Or, we could recommend that there be a single course of instruction for all of Quebec’s schoolchildren, one that taught religion in a non-confessional manner.

The first of these options, while it would have satisfied the constitutional requirement of treating religions equally, did nothing to address the practical problem of multiplying courses within public schools. The second would have satisfied both constitutional and practical concerns, but we felt, after months of deliberation, that it would have left Quebec’s future citizens epistemically impoverished by failing to provide them with a key to understanding the past and the present both of their own society and of the world. One needn’t be a believer (I am not) in order to appreciate the fact that an understanding of world religions is essential ingredient of basic civic competency.

We therefore recommended the abolition of confessional religious teaching from public schools, and the creation of a religious cultures course that would provide Quebec’s schoolchildren with a solid grasp of what has throughout history been a fundamental dimension of the human experience. Our defense of the abolition of confessional religious courses was moreover grounded not just in the practical difficulties that would undoubtedly have accompanied the proposal to provide all religions in Quebec with their own course of religious instruction. It was also based in a more fundamental concern with ensuring that schools contribute to the conditions for the decision-making autonomy of the future adults that were being partially shaped by Quebec’s schools. Religious (and non-religious) parents have uncontested dominion over the religious instruction that children receive at home and in places of worship. It seemed reasonable to us that children be protected from that dominion being transformed into a hegemony, and that religion therefore be presented in schools in a manner that differed from the way in which it was presented in homes, and in churches, mosques, synagogues, and the like.

Our report was published in 1999. It predictably attracted opprobrium both from Catholics, who felt that we were destroying an important part of Quebec’s heritage, and from secularists, who argued that public schools in a secular society should be entirely exempt from religion, whether presented in confessional or non-confessional spirit.

It took a while for the Quebec government to act on our recommendations. But in 2008, it introduced a course that could arguably be seen as stemming from the arguments of our report. The course is called Éthique et culture religieuse, and its goals are to introduce children to the religious traditions of the world in a non-confessional way, to teach them to engage critically with the difficult ethical issues that they might face both in their personal lives and as citizens of a modern democracy, and to develop aptitudes for engaging in dialogue with fellow citizens who might harbor conceptions of the good quite different from their own.

When the course was first mooted, I expressed the concern that it might give rise to a confusion in the minds of children, by making them believe that ethical thought and deliberation can only occur within the conceptual frameworks provided by religion. The very fact of combining “ethics” and “religious cultures” within the same course might be enough to give rise to this confusion, to say nothing of the way in which it might be taught as a result of this combination.

The implementation of the course has in large measure reassured me that this conflation would not in fact take place. I have three children who have either gone through or are in the process of going through the course, and it is quite clear from the way it has been taught to them in the three public schools that they have collectively attended that the ethics part of the course would be treated in complete isolation from the religious part.

(Shortly after the course was announced by the government, I was contacted by a Quebec publisher to ask whether I would be willing to write the ethics section of a schoolbook that would be used for the ECR course in high schools. I foolishly agreed – it was a nightmare! But the important point for present purposes was that I never had any contact with the person writing the “religion” part of the book. Ours were essentially two books stapled together, and so it seemed that the course would in fact be two courses bundled together into one for administrative rather than for substantive reasons).

It is important to keep this context in mind when reading the Loyola decision that was handed down by the Supreme Court of Canada last Thursday. As most readers of this blog will know, Loyola is a private Catholic school in Montreal that asked the Minister of Education to be able to avail itself of a provision of the law that created the new course, and that allowed private religious schools to propose equivalent alternatives to the course proposed by the Ministry, by offering a course that though “equivalent” to the mandatory ECR course, was more in keeping with the school’s Catholic identity and pedagogy. The Minister at the time, Michelle Courchesne, refused to grant the request, and the matter has been litigated all the way up to the Supreme Court. On Thursday, the Court apparently handed Loyola a big win, essentially saying that the imposition of an entirely secular curriculum upon Loyola limited the religious freedom of the institution to too great a degree. Both the majority and the minority opinions agreed that the goals of Quebec’s ECR course could be attained while allowing Loyola to modulate its contents in a manner that reflected its traditions and values.

But the majority opinion, penned by Justice Abella, circumscribes the victory in important and significant ways. Consider the three objectives of the ECR course: to provide Quebec schoolchildren with religious literacy, to develop their skills for moral reasoning, and to train their aptitude for dialogue. A total victory for Loyola would have allowed them to inflect their delivery of all of these objectives in a manner in keeping with Catholic teaching. The majority opinion does not even provide Loyola with a complete victory with respect to the first of these objectives. While it concedes that it is excessive relative to the objectives of the course to require a Catholic school to teach Catholicism in a neutral and objective way, it does require of Loyola (and by extension of the other private religious schools potentially affected by the judgement) that they prescind from teaching other religions from the point of view of the school’s religious traditions and beliefs . At paragraph 71, Justice Abella states, quite rightly in my view, that “it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way”.

This will require that Loyola walk something of a tightrope in the way in which it engages in religious instruction. It must if it is to comply affirm Catholic teaching while abstaining from the disparaging gaze that Catholicism has historically cast on other religions.

Can Loyola teach ethics from within a narrowly construed Catholic ethical framework? Again, the answer, delivered by the majority of the Court at paragraphs 72 to 78, is a resounding “no”. Paragraph 75 deserves to be cited in this context in extenso:

The alternative program that Loyola submitted to the Minister would teach other ethical frameworks primarily through the lens of Catholic ethics and morality. Even if Loyola’s teachers do so respectfully, this fundamentally transforms the ethics component of the ERC Program from a study of different ethical approaches into a class on Catholicism.  The resulting risk is that other religions would necessarily be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism.  This contradicts the ERC Program’s goals of ensuring respect for those whose religious beliefs are different, a goal no less worthy in a religious school than in a public one.

In teaching ethics, Loyola will thus have to take ethical frameworks quite different from its own seriously and respectfully into account. Rather than seeing them, from a Catholic perspective, as fumbling and incomplete attempts at discovering ethical truth, it will have to, as it were, give other frameworks equal airtime.

Thus, the majority decision, while it does clearly state that Minister Courchesne was unreasonable in requiring of Loyola that it teach all aspects of the ECR course in a secular and objective manner, limits Loyola’s prerogative to depart from the kind of even-handed stance embodied in the course only with respect to Catholic teaching. And even there, Catholic teaching is construed narrowly. Where Catholic doctrine implies a view of other religions, or where it has ethical implications, Loyola will have to repair to the kind of perspective required by the ECR course.

Where the majority judgement is in my view lacking is in its commission of precisely the confusion that I had feared when the ECR course was first announced close to a decade ago, and which the implementation of the course had thus far managed to avoid. Though Justice Abella and those Justices who joined her in her majority opinion clearly reject the idea that ethical reflection can proceed in schools from within a single religious framework, they do imply that objective or neutral consideration of ethical issues involves the balanced comparison of diverse religious frameworks. Consider the way in which the requirements laid upon Loyola is phrased in paragraph 78 of the judgment. Allow me again to cite in extenso:

I do not dispute that the belief systems Loyola’s teachers are required to explain to their students may not reflect their personal beliefs, or Loyola’s institutional allegiances.  But teaching about the ethics of other religions is largely a factual exercise. It need not be a clash of values.  Nor is asking Loyola’s teachers to teach other religions and ethical positions as objectively as possible a requirement that they shed their own beliefs.  It is, instead, a pedagogical tool utilized by good teachers for centuries — let the information, not the personal views of the teacher, guide the discussion.  The fact that those personal principles are not central when discussing the ethical principles of other religions does not mean that the Loyola teacher is silenced, or forced to forego his own beliefs, or even appears to be doing so.  It also does not mean that Loyola’s teachers are foreclosed from explaining the Catholic perspective and its differences from other faiths.

While this passage clearly does prohibit Loyola from teaching ethics from a narrowly confessional Catholic perspective, it implies that ethical discussion normally occurs from within religious perspectives, and that the kind of fairness and neutrality implied in the ECR involves being fair between the ethical frameworks contained in different religious traditions, rather than separating ethics and religion altogether. This is precisely the denial of the autonomy of ethics with respect to religion that I had seen as a risk when the course was first introduced. Now, it’s hard to know exactly what the implications of this conflation will be for the future of the ECR course in Quebec. As I said, the course has in fact been treated as a bicephalous creature by Quebec schools, and the textbooks that I have seen do so as well. So perhaps the course is already armed against the possibility of too much of a conflation between ethics and religion. Still, it is unfortunate that in this respect, the Supreme Court has forced us to address a problem that we had good reason to believe had been superseded by almost a decade of pedagogical practice.

I’ll end with an anecdote. I have debated the issues involved in this case for years now. I have in particular had the great good fortune of having been able to debate them productively and respectfully with Loyola’s Principal, Paul Donovan. After one of our debates, Paul asked me to sit in on one of the ethics classes at Loyola. It was excellent. I can’t remember what the exact issue was, but there was real engagement with the difficulties and ambiguities of the questions at hand. It was anything but the rehearsal of dogma. What’s more, the terms in which the debate was couched were ethical, rather than specifically religious. When I pointed out that the debate that I had just heard could easily have occurred in a non-religious setting, the response was that what distinguishes the Loyola approach from the approach suggested in the ECR program was that while the latter inclined pupils toward relativism (any answer is ok as long as you can argue for it), the Loyola approach is premised on the assumption that ethical issues admit of correct answers, and that reasoning should be geared toward the discovery of that right answer.

I disagree with the claim that relativism is the inevitable outgrowth of ethical reflection occurring outside of a religious framework. There are very few relativists among secular moral philosophers, and it seems clear to me that respectful, rational dialogue, which is the goal of the ECR program that did not get talked about very much either in the Loyola argument or in the Supreme Court decision, need not give rise to a “you’re ok, I’m ok” perspective. On the contrary, rational dialogue is corrosive of bad arguments and of unsubstantiated positions. Had Loyola and the Court attended to a greater degree than it did to the connection between ethics and dialogue, rather than focussing on the ethics/religion connection, many confusions and false dichotomies may have been avoided.