Respect for Individuals Versus Respect for Groups: Public Aid for Confessional Schools in the United States and Canada
This chapter identifies the fundamental norm or norms that underlie Canadian constitutional guarantees for confessional schools. It discusses the concept of a collective right, and addresses a number of philosophical and political objections. The chapter argues that in Canadian constituional law certain religious groups were collective right-holders in two respects: as claimants and as beneficiaries. State governments in the United States have tried to extend public aid to those attending confessional schools. Individual rights are asserted equally by everyone despite membership in certain ascertainable groups. Collective rights protect certain groups and not others. Justice Hercule realizes that the right to a confessional education is historically, practically, and intentionally a collective right. The interpretation of the right to confessional education in Canadian law as a collective right involves a twofold implication that religious groups can act as claimants and beneficiaries.