OTTAWA, Canada — Hailed a triumph by gender-identity activists, a recent Supreme Court of Canada decision is being described by critics as a “severe blow” to religious freedom in Canada and throughout the West.
By a majority 7-2 decision June 15, Canada’s highest court upheld the right of two provincial law societies to bar graduates of a proposed law school at Trinity Western University from practicing the profession — because they would be required to adherence to the private evangelical Protestant university’s code of traditional Christian sexual ethics.
According to the decision, religious-freedom rights that are formally enshrined in the Canadian Constitution are subordinated to the need to protect the rights of students who might seek a legal education at TWU to not be forced “to deny who they are for three years to receive a legal education.”
“The decision by the court effectively means that provincial law societies can discriminate against lawyers on the basis of their religious affiliation and moral values,” the Canadian Conference of Catholic Bishops said in a June 20 press release responding to the Supreme Court decision. “Furthermore, any organization is now at risk for its views on equality, diversity and inclusion if it depends on a regulatory body with a mandate to act in the ‘public interest.’”
At the heart of the law-school dispute is a “Community Covenant” that students and staff at Trinity Western, which is located near Vancouver in the province of British Columbia, agree to sign while studying at the school. Those signing the covenant pledge to uphold TWU’s Christian character and “to practice actions identified in the Bible as virtues, and to avoid those portrayed as destructive.”
The five-page document encourages cultivation of attributes including “patience, kindness, goodness, faithfulness, gentleness, self-control, compassion,” while voluntarily abstaining from actions including prejudice, drunkenness, smoking on campus, using illegal drugs or partaking in pornography or “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
How It Started
It is these last six words referring to marriage that compelled Vancouver lawyer Barbara Findlay, a self-described “cis-gendered lesbian lawyer who grew up working class and was raised Christian on the prairie,” to launch a battle in 2014 to revoke the Law Society of British Columbia’s recognition of the university’s law school on grounds that they are endorsing discrimination in violation of Canada’s Charter of Rights and Freedoms.
“On its face [the TWU covenant] discriminates,” Findlay said in an interview with the Register, “because it says that married heterosexual people can have sex; homosexual people can’t have sex, neither can common-law people.”
Even if these are consenting adults who sign the document and law students who do not assent are not impeded from seeking an education, the covenant treats married heterosexual couples “more advantageously than queer couples” and is “no different from a store refusing to serve a person because they are queer,” according to the lawyer, who is currently involved in a separate legal battle to remove gender markers from birth certificates.
Although TWU’s law school initially won approval from the British Columbia provincial government in 2013, the Law Society of Upper Canada and the Law Society of British Columbia subsequently both declared they would refuse to allow TWU graduates to practice law in their provinces, should the law school begin operation. But British Columbia’s Supreme Court later ruled in favor of TWU, overturning the province’s law society’s finding.
Public Interest vs. Religious Freedom
In its June 15 decision, however, Canada’s Supreme Court endorsed Findlay’s view by reinstating the Law Society of British Columbia’s decision. The law society’s refusal to recognize TWU law-school graduates “prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school,” the majority decision stated. “These individuals would have to deny who they are for three years to receive a legal education. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.”
The majority decision acknowledges that religious liberty is protected by Section 2(a) of the Canadian Charter of Rights and Freedom, which lists “freedom of conscience and religion” as the first of five “fundamental freedoms” that “everyone” in Canada possesses. The decision also notes that the British Columbia law society’s denial of approval constitutes “a serious limitation on the religious rights of members of the TWU community.”
But this limitation is justified by “the public interest,” the Supreme Court decision held, because by ruling against TWU’s law school, the provincial law society had prevented “concrete, not abstract, harms to LGBTQ people and to the public in general.”
In a scathing dissenting opinion, Justices Suzanne Côté and Russell Brown wrote that the majority decision “turns the protective shield of the charter into a sword.” Rather than having a duty to protect popular opinion, the dissent asserted, Canada’s Supreme Court has a duty to protect TWU “from majoritarian values, not to force conformance to those values.”
“What is really bad about the decision is that it’s turned the charter on its head,” agreed Howard Anglin, the executive director of the Canadian Constitution Foundation. “The charter exists to ensure that the state respects different views and accommodates them. It is supposed to protect diversity and accommodate unpopular minorities from majority coercion.”
Added Anglin, “What’s disturbing here is that all of the Supreme Court judges acknowledged openly that this was an infringement of charter rights to religious freedom, but the majority ruled that it was permissible in the service of some broader, undefined social goals.”
Consequently, an arm of the state such as a law society now is allowed to violate peoples’ religious freedom “so long as they are doing it in the name of protecting social values like equality or gender equity,” Anglin said.
Canadian constitutional specialist Iain Benson, the author of Religion, Liberty and the Jurisdictional Limits of Law, called the TWU ruling “judicial chicanery” and “a high-handed and bizarre departure from the way law has been understood in common practice for a very long time.”
By invoking a nebulous “public interest” in a case involving a private Christian university that receives no government funding, “this decision effectively eviscerates the public private charter distinction by applying to private entities what is traditionally only applied to public entities,” Benson said from Johannesburg, South Africa, where he is currently extraordinary professor of law at the University of Free State.
“Whether they realize it or not, the Supreme Court of Canada is demonstrating textbook secularism, which is increasing marginalization and privatization of religion in Canada … a project designed to make religion and religious irrelevant to culture.”
“This is the imposition of a new sexual and marital morality on society under the guise of legal interpretation,” Benson added.
Section 3 of the Marriage Civil Act of 2005, which legalized marriage between persons of the same sex in Canada, provided that no person or organization shall be deprived of their “freedom to the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”
“Those promises have proved empty,” Bob Kuhn, the president of TWU, wrote in a June 21 op-ed article in The Wall Street Journal. “Accrediting a school that upholds traditional Christian teachings on marriage could send the wrong message to Canadians who disagree with Trinity’s beliefs, we were told.”
“We’re analyzing the decision carefully,” Earl Phillips, the executive director of TWU’s proposed law school, told the Register. One possibility TWU officials are considering is simply removing the “mandatory” requirement of signing the covenant in hopes that would satisfy provincial law societies, although Phillips added, “Nobody was ever forced to attend; nobody is forced to make a choice they didn’t want to make.”
Ray Pennings, the executive vice president of Cardus, an Ottawa-based think tank created to present the Christian faith tradition in the public square, described the logical implications of the decision as “very scary,” because “the court has basically said that public expression of faith is not constitutional.”
“They have replaced religious catechisms with their own government-approved catechism.”
“It’s difficult to tell exactly where this will go,” said Pavel Reid, the senior director of ministries and outreach at the Catholic Archdiocese of Vancouver, which intervened in the case on behalf of TWU, as did the Canadian Conference of Catholic Bishops.
By choosing to elevate the rights of a small segment of society above God-given pre-existing rights, Reid said, the Supreme Court of Canada has “blasted a hole in the wall of protection that the charter placed between government interference and fundamental rights to freedom.”
“No one is sure exactly what these values the judges refer to are or what could come next. What would the decision have been if this had been a Jewish, Muslim or humanist university? Who is next? These are the questions that Canadians should be asking.”
“This is going to impinge on people’s rights in a way that some people haven’t thought through,” Reid added. “And that is not a good thing.”
Celeste McGovern writes from Berwick, Nova Scotia.