Tuesday, 28 April 2015

US Supreme Court - Same Sex Marriage arguments

In the case of Obergefell v. Hodges the US Supreme Court has been hearing final arguments regarding whether it should recognise Same-Sex Marriage as a "Right" under the US Constitution

The Court is considering 2 questions
(1)  “Does the 14th amendment require a state to license a marriage between two people of the same sex?”
(2)  “Does the 14th amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

The relevant part of the 14th Amendment says
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In addition to the 14th Amendment implicit in question(2) is Article IV, Section 1: of the US Constitution which says
"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

The US Supreme Court website  provides transcripts of the legal argument and also audio recordings so you can read the legal argument on Question 1 here and Question 2 here:  Or you can listen to an audio recording of the legal argument on Question 1here: and Question 2 here.

The SCOTUSblog provides a link to the (numerous) briefs and Amicus Curiae submissions made in the case HERE: as does the website of the American Bar Association

A fundamental argument frequently made by those who want the US Supreme Court to make Same-Sex marriage a Constitutional Right is the suggestion that banning Same-Sex marriage is similar to the earlier bans on Interacial Marriage which existed in many of the Southern States until these were overturned in the case of Loving v Virginia in 388 U.S. 1 (1967)

Interestingly at the outset of the legal argument between the parties US Chief Justice Roberts put his finger at the difference between this case and the Loving case when he said
"Well, you say join in the institution [ie Marriage].  The argument on the other side is that they're seeking to redefine the institution.  Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.  Obviously, if you succeed, that core definition will no longer be operable.......... you're not seeking to join the institution, you're seeking to change what the institution is.  The fundamental core of the institution is the opposite­sex relationship and you want to introduce into it a same­sex relationship"

Justice Kennedy similarly pointed the inherent problem of a decision of this significance being imposed on the United States by Judicial Fiat.
"This definition has been with us for millennia.  And it ­­ it's very difficult for the Court to say, oh, well, we ­­ we know better."

What the Supreme Court will decide is difficult to predict but my personal view is that it will answer Question (1): No, and Question (2): Yes, on the basis both of the 14th Amendment and the principle of reciprocity in Article 1V.  This answer will also avoid the danger of the Supreme Court being seen to impose its own subjective views and thereby overuling or sidelining the democratic process.

Wednesday, 1 April 2015

Religious Freedom and Education in Quebec - Loyola High School case

The Supreme Court of Canada has supported the Religious Freedom rights of a Catholic School in the Province of Quebec in a case which revolved around s2 of the Canadian Charter of Rights and Fundamental Freedoms  which is the section that protects Religious Freedom in Canada

The case of  Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII) was the culmination of a 5 year legal battle over the teaching of a compulsory curriculum on Ethics and Religious Culture as opposed to teaching the subject in conformity with the Catholic beliefs which were part of the inherent identity of the School

Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports had required all schools in Quebec to teach a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different world religions from a neutral and objective perspective.

 The stated objectives of the ERC Program are the “recognition of others” and the “pursuit of the common good” seeking to inculcate in students "openness to human rights, diversity and respect for others" (or to put it another way the usual meaningless PC claptrap which has inflitrated speech and political discourse in the English [and French] speaking world).

To fulfil these objectives, the ERC Program has three components: world religions and religious culture, ethics, and dialogue. The three components are intended to support and reinforce one another. The orientation of the Program is strictly secular and cultural and requires teachers to be objective and impartial. Teachers are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs, but to foster awareness of diverse values, beliefs and cultures. 

The course was compulsory in Provincial state schools but under s. 22 of the Regulation  the Minister can grant private independent schools an exemption from the specific requirements of the ERC Program if the School provides an alternative program which is deemed to be “equivalent”. Loyola wrote to the Minister to request an exemption from the Program, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics. The Minister denied the request based on the fact that Loyola’s whole proposed alternative program was to be taught from a Catholic perspective. It was not, as a result, deemed to be “equivalent” to the ERC Program.

Loyola brought an application for judicial review of the Minister’s decision. Loyola High School c. Courchesne, 2010 QCCS 2631 (CanLII)  where the Superior Court decided that the Minister’s refusal of an exemption infringed Loyola’s right to religious freedom under the Charter, quashed the Minister’s decision, and ordered an exemption. On appeal Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139 (CanLII)  the Quebec Court of Appeal  overuled the Superior Court and concluded that the Minister’s decision was reasonable and did not result in any breach of religious freedom. 

At the Supreme Court hearing Loyola modified its request to teach the whole ERC program from a Catholic perspective, and was prepared to teach about the doctrines and practices of other world religions neutrally but it still wanted to teach about the ethics of other religions from a Catholic perspective. The Minister’s position however remained the same namely that no part of the ERC program could be taught from a Catholic perspective.

The Supreme Court decided that the Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary and as a result, it did not reflect a proportionate balancing and should be set aside. The appeal was allowed and the matter remitted to the Minister for reconsideration.

The court held para 79 
"it is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue.  It does not, in my respectful view, because it rests on the assumption that a confessional program cannot achieve the objectives of the ERC Program."

A particularly important point of principle relating to the rights of Religious Organisations, including religious schools, was dealt with in paras 90 -91

[90]  The Attorney General of Quebec contends that Loyola enjoys no such constitutional protection because it is not a natural person, but merely a legal person:  religious freedom protects sincerely held beliefs, and a corporation is capable of neither sincerity nor belief.  This raises the question of whether religious organizations are protected by the guarantee of freedom of religion.

[91]  In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter.  The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola.  Canadian and international jurisprudence supports this conclusion.

The Court accepted therefore that Loyola’s teachers were permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. They agreed with the principle of the ERC course that Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way but accepted that where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.

An interesting point was raised in para 150 regarding the fact that a completely secular approach was not necessarily a neutral approach
150 By using as her starting point the premise that only a secular approach to teaching the ERC Program can suffice as equivalent, the protection contemplated by the s. 22 exemption provision was rendered illusory.

This mirrored to some extent similar points made by the European ourt of Human Rights in the Lautsi (Italian Crucifix) case in 2011

A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.

The case may well be too specific to Quebec legislation for it to have a wider influence but since s2 of the Canadian Charter is similar to Article 9 of the European Convention on Human Rights this case could be of value to UK Religious based Schools should they feel that parts of the National Curriculum are contrary to their religious nature and identity.  It may be particularly helpful as providing some guidance and reassurance for religious schools considering the difficult question of how they are to teach about same-sex marriage and same-sex relationships