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Canada Dec. 4, 2017

Father loses religious freedom case, but rights acknowledged

By Deborah Gyapong

Derek Ross (top), of the Christian Legal Fellowship, and Albertos Polizogopoulos (bottom), the lawyer for Steve Tourloukis, the father at the centre of a recent Supreme Court of Canada religious freedom case. (Photos by Deborah Gyapong / CCN)

OTTAWA (CCN)—A Greek Orthodox father seeking religious accommodation from a public school board has lost at the Ontario Court of Appeal, despite a majority opinion favouring parental rights.

On Nov. 22, the Ontario Court of Appeal’s three justices dismissed the appeal of Steve Tourloukis, referred to as E.T. in the decision, because he did not provide evidence his children were “forced to do something contrary to their religious beliefs or where they were denied the right to manifest or observe their religion as they wished.”

“Nor has he provided any evidence that his right to inculcate his children with his own religious views has been curtailed or infringed,” Justice Robert Sharpe wrote. The other two justices agreed.

The Hamilton-Wentworth District School Board had offered to accommodate Tourloukis by exempting his children from the “Healthy Living” human development and sexual health program but not to inform him when elements of its diversity and inclusion program were worked into other parts of the curriculum.

Tourloukis, however, had wanted to be notified in advance so he could exempt his children when a range of topics would be taught, including “moral relativism, ‘environmental worship,’ ‘instruction in sex education,’ and ‘discussion or portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable,’” the decision said. 
Two of the three justices, however, stressed the importance of parental rights in education.

“Dismissing this appeal does not, however, give the s. 169.1 [of Ontario’s Education Act] program a clean constitutional bill of health,” the majority decision written by Justice Peter Lauwers said. “Were there evidence that the s.169.1 program undermined a parent’s ability to transmit religious faith, together with a refusal to provide accommodation, the result might well be different …” 
While Tourloukis and his lawyer Albertos Polizogopoulos have declined to comment, Lou Iacobelli, a Toronto Catholic who chairs the Parental Rights in Education Defense Fund that has helped pay for the legal battle, called the decision “disappointing.”

“What was so disturbing about the decision was that you have to wait until a child is harmed, or you have to prove whatever’s happening in the classroom goes against your Christian faith,” he said. Instead, the courts could have relied on “the idea of an anticipatory breach,” he said. “We know what the curriculum is and we know that it contradicts the Greek Orthodox faith. There was enough evidence.”

Iacobelli said the school board’s lawyer told the court “teachers have a statutory obligation to celebrate LGBT identities and same-sex relationships.”

“For goodness sake, what better proof could these judges have asked for than an admission of guilt?” Iacobelli said.

“It is ridiculous to tell parents that they must first allow harm to be inflicted on their kids before they can apply for relief,” said Campaign Life Coalition’s Jeff Gunnarson in a news release.
Legal costs have run around $100,000, Iacobelli said, and the final bills are not in yet. The fund is soliciting donations to help defray the legal costs.

However, the Christian Legal Fellowship (CLF), the sole intervener in the case advocating for parental rights, said the opinion of the majority “leaves the door open” for a future appeal.

“The majority made it very clear that parents have primary authority for making decisions related to the well-being of their children, including their education,” said Derek Ross, executive director and general counsel for the CLF in an interview. “And that the state’s authority is secondary to that parental right. So that means, the authority of the state to educate children is a delegated authority, and the court made that clear that delegation comes from parents.”

“The majority said whenever we are looking at a religious freedom claim in context of education, it’s very serious because of the role of education in shaping the character of children,” Ross said. “It does therefore have the potential to undermine the parents’ ability to transmit their religious beliefs to their children.”

The majority justices, “recognized there was a plausible claim here,” though based on what was before them, “it was not clear that that had actually occurred in this particular case.”

“In my view, the decision has some very strong and welcome language affirming parental rights and emphasizing there are clear limits on what the government can do to interfere with those rights,” Ross said.

Campaign Life Coalition agreed. “The ruling seems to provide a roadmap to pursuing a constitutional challenge against section 169.1 of the Education Act,” said Jack Fonseca, Campaign Life’s senior political strategist.

Fonseca urged other parents to document evidence and to launch separate challenges.