When I blogged last week about the Ontario government’s plans to compel Catholic schools to allow gay-straight alliances, a number of readers said, basically, “Tough nuts; if they take the state’s money, the state can tell them what to do.” As if the state having the right to do something is the only justification necessary. Anyway, a Canadian lawyer writes to clarify:
Ontario’s demand for GSAs in Catholic schools is more complicated legally than will be apparent to your U.S. readers.
Publicly-funded Separate (or “dissentient”) schools, which typically means Catholic schools, are guaranteed in the Canadian constitution, specifically in order to prevent domination of religious minorities by a local majority through the majority’s control of local public schools. The basic model was set in 1867, when the concern was domination of Catholics by local Protestant majorities, and vice versa in Quebec. A local (Protestant or Catholic) minority’s right to set up a school board separate from the public system and operate its schools according to its faith is part of the compromise that made Canada possible. (I attended state-supported Protestant Separate schools myself, in still another province.)
There have been comparatively recent amendments affecting Newfoundland and Quebec, and the details vary somewhat from province to province, depending on when the province entered Confederation, but that’s the general rule, which applies in Ontario.
In fact, in some provinces, there is legally no such thing as a public school that is secular in principle, because the constitutional documents that create those provinces grant a local majority exactly the same rights regarding religious education in Public schools as are granted to local religious minorities in Separate schools. (Nowadays majorities don’t exercise those rights. Heads would explode if they did, but it wouldn’t be illegal on grounds of either “equal protection” or freedom of religion, because the right is found in those provinces’ constitutions and are part of the Constitution of Canada.)
So, almost nothing follows from the fact that public money goes to minority religious schools, in terms of the state’s right to tell a religious minority what to teach their children on matters of faith and morals. Preventing the Ontario government from doing things like it now wants to do is pretty much the point of the constitutional guarantee.
I thank the Canadian lawyer for his helpful letter