Iain T. Benson, Executive Director, Centre for Cultural Renewal



Lauwers Brief for Leg. Committee on Bill C-38


Peter D. Lauwers, Miller, Thomson LLP
(905) 415-6470
June 8, 2005


The change in the definition of marriage proposed by Bill C-38 has many implications. This brief will address the implications of Bill C-38 for public education in Canada.

Jurisdiction over education is given to the provinces by s. 93 of the Constitution Act, 1867. The change in the definition of marriage would impact on the curriculum of public schools across Canada.

The Canadian Charter of Rights and Freedoms, taken together with Bill C-38, will compel public schools to teach their students that same-sex marriage is morally equivalent to heterosexual marriage, that same-sex sexual relations are morally equivalent to heterosexual sexual relations and behaviour and, to the extent that these concepts are explored from a mechanical perspective in health and physical education classes, the exploration must be equivalent. Any other approach, it will be argued, would be discriminatory and contrary to the equality rights under s. 15(1) of the Charter and the numerous court cases that have led to Bill C-38.[1]

There is little doubt that, given the relative lack of support for the change in the definition of marriage in the Canadian populace generally, this new reality would not be welcome. Canadian tolerance may support adult homosexual conduct in certain places at certain times, but it is not likely to support teachings in the local public schools that conflict radically with the moral values held by parents.

The reasons for these conclusions are explored below.

The Narrowing Consensus

The strategy in public education for dealing with social diversity has effectively been to relegate it to the private life of citizens and so to attempt to remove it from the public square. Traditionally only those matters on which there was a large measure of consensus in society would be taught in the public school system. The rest was left to the home, to the church or to other institutions.

The history can be seen as a series of three movements. First, there was Egerton Ryerson's concept of education as non-denominationally Christian. Then there was the gradual secularization of the system and the movement away from religiously-based values. Third, there was a growing expression of values in a secular manner as the full logic of secularization in our society progressed.

But the system's basic strategy has always been the same: matters of moral controversy are to be avoided, and public education is to take place on the common ground that is left. The critical problem is that this common ground is narrowing. And that narrowing is a real challenge for the public system and its governance.

Proposition 1: There is a right to publicly-funded education

Our Constitution refers to individual rights and collective rights but not to social rights—positive goods or basic necessities that we all have a right to expect from society no matter what our social status might be. The right to education is basic to our society, so basic that references to it in our Constitution assume rather than mandate it. Publicly-funded education is a social right and value, indeed a necessity, on which we are agreed as a society.

Article 26 of the U.N. Universal Declaration of Human Rights (1948) provides:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

There is really no dispute about the existence of this right.

Proposition 2: Public schools exist to transmit the knowledge and values of society from one generation to the next

This principle seems trite: The Supreme Court of Canada noted in Attis v. New Brunswick District No. 15 Board of Education, at para. 42, that:

"A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the Board of Inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it."[2]

Schools are effective, which explains why they are such a bone of contention. As Professor MacDougall notes:

"Educational institutions of course are thought of very much as movers and shapers of the future. They determine what society will be like in coming generations. They are the primary institutions which form and perpetuate values, especially with the waning influence of the religions themselves."[3]

His primary criticism of pubic schools is this:

"The most important factor in the perpetuation of homophobia and the marginalization of homosexuals, including self-hatred in homosexuals, is the intense indoctrination in heterosexism that children experience. A great deal of this indoctrination occurs in educational institutions. This heterosexism is part of the desire to prevent children from the effects of homosexuality (sic)."[4]

Proposition 3: - The parental role in education should be respected and supported
A long tradition recognizes the role of parents as the first teachers of their children.[5] The Universal Declaration of Human Rights (1948) provides in article 26(3):

"Parents have a prior right to choose the kind of education that shall be given to their children. "

The U.N. Declaration of the Rights of the Child (1959) in principle 7, para. 2 provides:

"The best interests of the child shall be the guiding principle of those responsible for his education and guidance; the responsibility lies in the first place with his parents."[ Emphasis added]

The courts have recognized this central role of the parents. In the Richard B. decision the Supreme Court of Canada noted:

"That constitutional freedom [of religion] includes the right to educate and rear their child in tenets of their faith. In effect, until the child reaches an age where she can make an independent decision regarding her own religious beliefs, parents may decide on her religion for her and raise her in accordance with that religion."[6]

In the case of Jones v. The Queen, the Supreme Court considered home schooling. The parent-home schooler, who was the pastor of a fundamentalist church, argued that any inspection by the local school authority to determine that the quality of education was sufficient in his home breached his freedom of religion. The Court disagreed. But Mr. Justice La Forest said:

"Those who administer the Province's educational requirements may not do so in a manner that unreasonably infringes on the right of the parents to teach their children in accordance with their religious convictions. The interference must be demonstrably justified." [7]

The principle is now in dispute, as will be noted below.

Proposition 4: The viewpoints in this debate are held in good faith

The sharp point of debate is in the fact that conduct that some believe is constitutive of their identity is seen by others as immoral.

Parents who take the latter view do not want their children exposed to teachings that are contrary to their own values. They do not want the moral authority of the school used to undermine the values that their children are taught at home.

There is also a question of timing. As the cases note, there is a real debate about age appropriate information. Is it appropriate to bring issues of sexuality into the classroom in the primary grades? Is it appropriate to expose adolescents who may be experiencing a rush of hormones and a degree of sexual confusion to practices and lifestyle choices that might tempt them? Is it reasonable to allow the moral weight of the school to be used in this way to undermine the faith and values that the parents teach at home?

For parents, the real issue is this: Is it the role of the school to support the family, or is it the role of the school to undermine the family?

These are not small issues.
It is fair to say, however, that many Canadian parents would be deeply concerned about teachings in public school that same-sex marriage is morally equivalent to heterosexual marriage, and that same-sex sexual relations are morally equivalent to heterosexual relations. they would object to any exposition of the mechanical aspects of these relations in health and physical education classes.

This prospect is raised in a new way by Bill C-38, because it seeks to define a fundamental institution in Canadian society that represents the foundation of family life for many Canadians.

Proposition 5: Charter values and the law must be reflected in public education

There is a real dispute about the nature and purpose of public education in a pluralist society like Canada. The advent of the Canadian Charter of Rights and Freedoms in 1982 was held by the courts to create a new framework for public education in Canada. This is evident from the result in the Zylberberg case in 1988, striking down the requirement that a public school open or close each school day with a religious exercise, and in the Elgin County case in 1990, striking down the requirement that in each public school two half-hour periods per week be devoted to religious education.[8]

Bill C-38, by re-defining marriage, will present the next challenge to the public education system.

What will the curriculum implications of Bill C-38 be for public schools?

A sense of what is to come can be seen in the decision of the Supreme Court of Canada in Chamberlain v. Surrey School District No. 36[9]. There the Court struck down the decision of a school board to refuse approval for three books presenting positive images of same-sex families for use in junior kindergarten and grade 1. The school board had refused to approve the books on the basis that a significant number of parents and others in the school district would consider them to be incompatible or inconsistent with their moral and religious beliefs on same-sex relationships.

The Public School

It is strongly asserted by some that the purpose of public education is the integration of children; this is seen as a necessary antidote to increasing cultural and religious heterogeneity. The central idea is that common schools, where children from different cultures, languages and religions are educated together, foster tolerance. The separation of children of different cultures, languages and religions would fragment society unacceptably, so the argument goes.

Some, perhaps many, supporters of the public system believe that the status quo is acceptable on ideological grounds – that secular humanism truly is the appropriate moral basis for public education. Dr. Shapiro noted evidence of this ideological bent in the submissions he received in 1984:

"That the public educational system does serve the needs of Ontario is suggested by a number of writers. Further, the values reflected by the boards of education are seen as the shared values of almost all Canadians, irrespective of their religious background. That is, the relatively secular, humanistic nature of the public schools is seen by some to truly reflect the current societal conditions in Ontario and Canada."[10]

In Adler v. The Queen [11] the majority in the Supreme Court of Canada found that the funding of education in religious schools is a political matter, not a matter of law or of constitutional entitlement.[12]

Justice McLachlin, dissenting in part, set out the ideological position in full:

[217] "The argument linking denial of funding for independent religious schools to the ultimate objective of a more tolerant society goes like this. By providing funding to secular schools where people of all religions are welcomed free of cost, the government encourages people of different cultures and creeds to educate their children together. If funding were provided for private religious schools many of those who now send their children to secular schools would instead send their children to independent religious schools. The public secular schools would lose some students from diverse backgrounds. These students, instead of being educated in public multicultural multi-religious schools, would be educated with homogeneous groups of people of similar beliefs. In short, secular schools might become less diverse and the number of students receiving parochial educations would increase. The overall effect would be to diminish the multicultural exposure of children in schools. This lack of exposure, in turn, would diminish the mutual tolerance and understanding of Ontarians of diverse cultures and religions for one another.
[219] ...The denial of funding to separate schools is rationally connected to the goal of a more tolerant society (page 459). "

The idea that the state is the legitimate protector of a particular way of life and that its function is to engender and to protect one way of being in preference to all others is at the root of the ideological basis of the secular common school. This is fundamentally illiberal.[13]

The Chamberlain decision of the Supreme Court of Canada marked a significant moment in the debate about parental rights in education. In the decision Justice Gonthier spent considerable time on developing the law and principles around parental rights and education. He concluded as follows:

117 "Why are parents guaranteed a paramount role in their children's education and moral development? As was quoted above from B. (R.), at para. 85, the primacy of parents is " . . . rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself." This reasoning strikes particularly true with regard to the facts in the case at bar. A parental determination of what is appropriate subject matter for their children's education involves an examination of the psychological age or maturity of their children, as well as a parental reflection upon what conscience-based guidance they seek to impart. As one parent's affidavit puts it: "As my children's mother, I feel I am in the best position to determine their ability to understand and deal with complex and contentious value-based issues involving human sexuality." This evaluation is individualized, and, in my view, preferable, when possible, to assumptions which root child readiness or capability in an undifferentiated chronological analysis."[14]

Justice Gonthier’s careful development of the principle of parental primacy in his dissent was answered by the majority. Chief Justice McLachlin said:

33. "Moreover, although parental involvement is important, it cannot come at the expense of respect of the values and practices of all members of the school community. The requirement of secularism in s. 76 of the School Act, the emphasis on tolerance in the Preamble, and the insistence of the curriculum on increasing awareness of a broad array of family types, all show, in my view, that parental concerns must be accommodated in a way that respects diversity. Parental views, however important, cannot override the imperative placed upon the British Columbia public schools to mirror the diversity of the community and teach tolerance and understanding of difference." (emphasis added)

In effect, therefore, it is parental views that are to be overridden by the state. Needless to say, if this view is given rigorous effect, parents whose views are thus overridden might not want to remain with the public system.
The purpose of Bill C-38 is plain and quite understandable, as explained by Professor Bruce MacDougall[15]:

"Homosexuals, today legally protected from discrimination in Canada, and entitled to the same benefits as heterosexuals, now demand the symbolic recognition of state encouragement or celebration of their status, their sexual orientation". (para. 1)

Certain activists, such as Professor MacDougall make a strong point in liberal terms about public education:

"Religious ideology cannot be used to determine what people who are not of that religion can do or how they should lead their lives" (para. 15)

To this, however, he added a qualifying footnote that shows one possible future for public education:

"In my opinion, it should not even be used to judge those who are of that religious persuasion. Even children being raised in a particular religious tradition should not be exposed to ideology that excludes and refuses to accommodate homosexuality in their education. The state has an interest in all education of the young and this ideal should prevail". (emphasis added)

It is submitted that this approach is illiberal. It effectively amounts to an abuse of state power that denies individual choice in favour of a state-enforced standard. The exercise of power in this way is inappropriate because it contradicts the basic values of personal autonomy, the rights of parents to choose the education of their children, and the appropriate way to accommodate diversity in our society.

Is there a remedy?

Justice Gonthier noted in Chamberlain.

[184]"If some parents seek to resist having their children exposed to the subject matter of homosexuality in a situation where there is a child in the class with parents in a same-sex relationship, then the situation where the children of such parents may be excused from the class for a short time may arise. I note that some school boards, cognizant that such a parental desire to have their children "opted out" of certain subject matter might arise, have mechanisms by which parents will be notified when sensitive or controversial subject matter is going to be raised. Such mechanisms are geared at respecting the constitutionally protected paramountcy of the parental role in the moral education of their children. Ultimately, as per Adler, supra, the ultimate parental response would be to remove children from the public school system. However, in my view, this should be seen as a last resort, and not as a natural alternative when there is an acceptable balance to be struck between local parental concerns and a broader program of tolerance. When such a balance is available, as in the case at bar, keeping the concerned children in the public school system can only further and strengthen the message of respect and tolerance that it wishes to inculcate.[16]

Justice Gonthier saw an opt-out right as necessary.

For her part, Chief Justice McLachlin was prepared to override parental rights entirely. She held:

64 "The argument based on cognitive dissonance essentially asserts that children should not be exposed to information and ideas with which their parents disagree. This claim stands in tension with the curriculum's objective of promoting an understanding of all types of families. The curriculum requires that all children be made aware of the array of family models that exist in our society and that all be able to discuss their particular family model in the classroom. "

65 "The number of different family models in the community means that some children will inevitably come from families of which certain parents disapprove. Giving these children an opportunity to discuss their family models may expose other children to some cognitive dissonance. But such dissonance is neither avoidable nor noxious. Children encounter it every day in the public school system as members of a diverse student body. They see their classmates, and perhaps also their teachers, eating foods at lunch that they themselves are not permitted to eat, whether because of their parents' religious strictures or because of other moral beliefs. They see their classmates wearing clothing with features or brand labels which their parents have forbidden them to wear. And they see their classmates engaging in behaviour on the playground that their parents have told them not to engage in. The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others. "

66 "Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself involves. As my colleague points out, the demand for tolerance cannot be interpreted as the demand to approve of another person's beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right. Learning about tolerance is therefore learning that other people's entitlement to respect from us does not depend on whether their views accord with our own. Children cannot learn this unless they are exposed to views that differ from those they are taught at home."[17]

Bill C-38 will throw the cat among the pigeons in public education, and the outcome will be determined ultimately by the Supreme Court of Canada, years from now.

Proposition 6: There is fundamental disagreement about the nature of pluralism in Canada

The concern about the implications of Bill C-38 for public education reflects a deeper dispute in Canadian society.

As Professor Charles Taylor notes, current views of liberalism are characterized by an emphasis on the absolute equality of individuals, their legal autonomy and state neutrality. "A liberal society must remain neutral on the good life, and restrict itself to ensuring that however they see things, citizens deal fairly with each other and the state equally with all." Such "a liberal society cannot accommodate publicly-espoused notions of the good”.[18]

Despite these words, the shift in the definition of marriage is not neutral. The state is taking sides. This fact raises a basic dilemma that has been lurking in our law and politics has not yet been frankly faced. What kind of pluralism should exist in a liberal democracy like Canada?

Recent thinking about pluralism and the nature of democratic liberalism suggests that there are two basic approaches. In one, as Prof. John Gray notes, pluralism and diversity are tolerated as a temporary stage in the evolution of society. Diversity will inevitably disappear as individuals come more and more to see the wisdom of a common set of values and a common form of liberalism. Prof. Gray calls this the pursuit of "rational consensus". We will, so goes the argument, achieve rational consensus over time as pluralism and diversity diminish. This is really convergence pluralism, which may be an oxymoronic expression.

The other approach holds that pluralism is a permanent feature of human life, and therefore of life in a liberal democracy. The idea is that diversity is a natural expression of human life and the way in which communities are formed. There are incommensurable ways of life that need not conflict. Any effort to suppress pluralism or to force commonality will inevitably lead to totalitarianism. We must strive for, as Prof. Gray puts it, the "modus vivendi":

"Liberalism contains two philosophies. In one, toleration is justified as a means to truth. In this view, toleration is an instrument of rational consensus, and a diversity of ways of life is endured in the faith that it is destined to disappear. In the other, toleration is valued as a condition of peace, and divergent ways of living are welcomed as marks of diversity in the good life. The first conception supports an ideal of ultimate convergence on values, the latter an ideal of modus vivendi. Liberalism's future lies in turning its face away from the ideal of rational consensus and looking instead to modus vivendi.

The predominant liberal view of toleration sees it as a means to a universal civilization. If we give up this view, and welcome a world that contains many ways of life and regimes, we will have to think afresh about human rights and democratic government. We will refashion these inheritances to serve a different liberal philosophy.

We will come to think of human rights as convenient articles of peace, whereby individuals and communities with conflicting values and interests may consent to coexist." [19]

Call this authentic pluralism.

The real fight is about the nature of pluralism in Canada. There is a drive towards “coerced ideological conformity.” [20] The battleground will be the public schools of Canada.

Concluding Comments
These are set out in the introduction.

[1] See Bruce MacDougall, "Celebration of Same-Sex Marriage" (2000-2001), 32 Ottawa L. Rev. 235-237; Bruce MacDougall, "The Separation of Church and Date: Destabilizing Traditional Religion-Based Legal Norms on Sexuality (2003) 36 U.B.C.L. Rev. 1-27; “Silence in the Classroom: Limits on Homosexual Expression and Visibility in Education and the Privileging of Homophobic Religious Ideology” (1998) 61 Sask. L. Rev. 41 and see Vincent J. Samar, “Autonomy, Gay Rights and Human Self-Fulfilment: An Argument for Modified Liberals in Public Education” (2004) 10 Wm. & Mary J. Women & L.137; Morris R. Dyson, “Safe Rules or Gays’ Schools? The Dilemma of Sexual Orientation Segregation in Public Education” (2004) 7 U.Pa.J. Const. L. 183.
[2] Attis v. New Brunswick District No. 15 Board of Education, [1996] 1 S.C.R. 825 (S.C.C.), at para. 42,
[3] MacDougall, 2003, para. 35.
[4] MacDougall, 1998, para. 1.
[5] In Chamberlain, supra, Justice Gonthier, in dissent, discussed this tradition under the title “The Paramount Role of Parents in the Education of Children, the Best Interests of Children and the Charter” at para. 102-118.
[6] Richard B., [1995] 1 S.C.R. 315 at pp. 434-5.
[7] Jones v. The Queen (1986), 31 D.L.R. (4th) 58.
[8] Canadian Civil Liberties Association v. Minister of Education, (1990), 71 OR. (2d) 341 (Ont. C.A.).
[9] Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710.
[10] Dr. Bernard Shapiro, supra, page 25.
[11] Adler v. The Queen (1994), 19 O.R. (3d) 1 (C.A.); appeal dismissed at (1996), 140 D.L.R. (4th) 385 (S.C.C.).
[12] Adler S.C.C. para. 48. The Court rejected the argument that freedom of religion in s.2(a) of the Charter required the Province of Ontario to provide funding for independent religious schools and also rejected the argument that by funding Roman Catholic schools and secular public schools while at the same time denying funding to independent religious schools was discriminatory on the basis of religion contrary to s. 15(1).
[13] See Proposition 6 below.
[14] Chamberlain, supra.
[15] Bruce MacDougall, "Celebration of Same-Sex Marriage" (2000-2001), 32 Ottawa L. Rev. 235-237.
[16] Another inhibiting factor has been the judgment of the Court of Appeal in Zylberberg that effectively outlawed opt-out rights as a way to accommodate other religions. The majority concluded that permitting students to request an exemption from participation in religious opening exercises was not a proper defence against the constitutional challenge, but was itself unconstitutional:

"The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices." (p.655)

"The requirement that pupils attend religious exercises, unless exempt, compels students and parents to make a religious statement. "(p.655)

"... the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion. "(p.656)

The Court specifically rejected as "insensitive" the idea that minority pupils might benefit from an understanding of their difference from the majority.

[17] It is ironic that her thoughts in this respect reflect the dissent of Mr. Justice Lacourciere in Zylbergerg, where he was suggesting that the requirement that a student or parent seek an exemption from religious education was not unconstitutional (page 676). He noted:

"... The state is under no duty to insulate children from cultural and religious differences. Thus, being compelled to choose whether or not to participate in religious exercises is not, in itself, constitutionally impermissible. "

"I also reject the proposition that the effect of the obligation to seek an exemption compels religious minorities to conform to the practices of the majority. ..." (p.680)

"Neither common experience nor the evidence in this case lend support to the conclusion that the obligation to seek an exemption imposes on religious minorities a compulsion to conform to the practices of the majority. " (p.683)

[18] Charles Taylor, “Shared and Divergent Values” in Watts and Brown, Options for a New Canada (1991) pp. 53, 69; Multiculturalism (1994) pp. 41, 42, 43.
[19] Prof. John Gray, Two Faces of Liberalism, (2000 – The New Press) p. 105.
[20] Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211 at p 343. emphasis added


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