L’Etat, c’est nous

On June 15 the Supreme Court of Canada issued a ruling that may come to be recognized as the moment when the 36-year-old Canadian Charter of Rights and Freedoms was transformed from a shield to protect minorities into a sword to attack them. In denying Trinity Western University’s bid to open a law school, the highest court in the land ruled that the Charter guarantee of religious freedom and freedom of association – in this case Christian –  is subordinate to secular “Charter values,” the “public interest,” “diversity” and “equity.”

The case pitted Trinity Western (TWU), a small evangelical Christian university based near Langley in Metro Vancouver, against the Law Societies of British Columbia, Ontario and Nova Scotia. The Law Societies had refused to accredit TWU’s proposed 60-student law program because the school insists all its roughly 4,000 students sign a mandatory “community covenant” or code of conduct committing them to abstain from sex outside heterosexual marriage during their enrollment. Although the Societies acknowledged that the TWU program was academically sound and met all requirements for professional competence, they alleged that the covenant discriminated against same-sex LGBTQ couples. TWU had won at the Courts of Appeal of BC and Nova Scotia, and lost in Ontario, before the BC and Ontario decisions were appealed to the Supreme Court.

The Court broke new ground in ruling that a private, religious community  whose adult members voluntary agree to a code of conduct consistent with orthodox Christian teachings, cannot rely on the Charter when its fundamental freedoms are attacked by a government body, in this case the Law Societies. In its 7-2 decision, the Court acknowledged that its ruling infringed on the Charter’s guarantee of religious freedom, but was justified on the basis of an undefined “public interest,” vague and fuzzy “Charter values” and the fashionable political slogans of “equity” and “diversity.”  The Court did not engage in the more stringent analysis required by Charter section 1, which places the onus on government to demonstrate that its violation of Charter freedoms are justified in a “free and democratic” society.  In this case, the hypothetical gender right of LGBTQ law students at TWU to have sex trumped the school’s religious right to maintain a voluntary community that insists on unmarried people abstaining from sex.

TWU’s covenant also includes prohibitions against using profane language, viewing pornography, smoking marijuana, and getting drunk. It is probable that this deters the vast majority of young Canadians, gay or straight, from wanting to study there. Yet thousands do, none of them are forced to enroll, every one of them signs the covenant, and some of them are gay. The Court disregarded affidavit evidence from gay graduates of TWU who stated that the school provides a caring, supportive and non-judgmental environment in which it is safe to come out as gay. Instead, the Court accepted without question opposing claims from Out on Bay Street lawyers in Toronto, who had never set foot on TWU’s campus, and concluded that the school “violates essential human dignity” of LGBTQ students and harms their self-esteem.

The Court further asserted, falsely, that TWU’s code of conduct is focused on personal characteristics. In fact, the code is focused solely on conduct. Like other universities, TWU welcomes atheists, gays, Muslims, Christians and anyone else willing to obey the university’s rules.

The phrase “public interest” appears 104 times in the Court’s TWU decisions, usually in relation to upholding particular social objectives, notably “equity”, “diversity” and “equality”.  However, the Court does not identify upholding the Charter freedoms of unpopular minorities, such as evangelical Christians, as being in the “public interest”.

In trampling on the fundamental freedoms of religion, association and conscience in the name of the “public interest,” the Court ignores the very purpose of the Charter, which was originally conceived to protect the expression of unpopular opinions, the practice of unpopular minority religious beliefs, and the creation of unpopular voluntary associations, from trampling by the majority. Now-retired Chief Justice Beverley McLachlin, who sided with the TWU majority in her final judgement, once believed that. In her 1992 R. v. Zundel ruling, McLachlin wrote that the majority’s perception of the “public interest” should never smother the minority’s perception of it. “The view of the majority has no need of constitutional protection;” she wrote, “it is tolerated in any event.”

Trinity Western University Students watch the Canadian Supreme Court’s oral arguments.

The word “values” appears no less than 102 times in the TWU decisions. It is used almost interchangeably with the word “rights”, even though “values” appears nowhere in the original language of the Charter. The blurring of codified legal rights with subjective social values is a relatively new phenomenon in Canadian jurisprudence, but its ubiquity in TWU is one of the things that marks the judgement as a watershed. The ruling reads more like a progressive political dissertation than dry legal reasoning because, frankly, that’s what it is.

As Justices Russell Brown and Suzanne Côté wrote in their scathing dissent:

Charter ‘values’ — unlike Charter rights…are entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so. …One person’s values may be another person’s anathema. We see nothing troubling in this, so long as each person agrees to the other’s right to hold and act upon those values in a manner consistent with the limits of core minimal civil commitments which are necessary to secure civic order — none of which are implicated here. …What is troubling, however, is the imposition of judicially preferred ‘values’ to limit constitutionally protected rights, including the right to hold other values. … Charter values like ‘equality’, ‘justice’, and ‘dignity’ become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined ‘values’, over other values and over Charter rights themselves.”

The ruling has implications for every voluntary association that restricts membership to those who agree with its goals, beliefs or rules: Mosques that insist female congregants cover their heads; Gay Pride organizers who refuse to allow police or military personnel to march in their parades; synagogues who eject congregants who deny the Holocaust; the Liberal Party of Canada, which doesn’t allow pro-lifers to run under its banner.

Would the Court crack down on these discriminatory practices if it could invent a “public interest” to do so? Maybe, but one wonders if it would be as blunt in criticizing the miscreants as it was in TWU. The Court describes the university’s requirement of celibacy for the unmarried as “living a lie,” “denying a crucial component of one’s identity,” “denying who you are,” “degrading” and “disrespectful.”

Canada’s multicultural mosaic is comprised of thousands of charities, temples, mosques, cultural and ethnic associations, political groups, sports associations and community leagues. While outsiders may find the rules governing some of them repugnant, their freedom to set those rules is the very essence of our “free society”.

Unfree societies ruled by totalitarian ideologies may enforce very different values and public interests to attain social objectives as varied as a socialist workers’ paradise, the dominance of a master race, or State-enforced “inclusion”, “diversity” and “equity”. What they all have in common, however, is state imposition of ideology on individuals, families, and voluntary associations.

The majority on Canada’s Supreme Court seem oblivious to the echoes of recent history in their downgrading of religious freedom in TWU to what they consider “necessary” or “absolutely required” for religious adherents. Using logic equally flattering of a Communist diktat or a Monty Python satire, the Court ruled implicitly that since the Bible does not expressly command Christians to start a Christian law school, there is no need for Law Societies to respect the mere “preference” of TWU students who wish to study law while belonging to a voluntary Christian community which happens to reject (among other things) sex outside of marriage.

For the Court to “balance” TWU’s Charter freedoms against vague notions of “diversity,” “equity” and “public interest” is deeply disturbing, because in a free society there should not be any legal right to join an organization whose beliefs and rules one rejects, or to impose changes on a group that one disagrees with. There were no LGBTQ plaintiffs who wanted to attend TWU and were unable to do so. The Law Societies refused to accredit an academically sound law school solely because some Canadians, and perhaps most Canadians, feel offended by religious prohibitions on gay sex. Feeling upset about another’s beliefs or voluntary associations should never serve as a pretext for trampling on Charter freedoms. Yet this is precisely what the Court has done in TWU.

In an extraordinary news conference held a week after TWU was handed down, the new Supreme Court Chief Justice Richard Wagner responded to a question about the judgement by reiterating that the Charter must be interpreted in light of evolving social “values” rather than its actual language. He added that Canada may not be an economic or military superpower, but in a world where “some of our basic values, fundamental values and moral values, are seriously attacked by other countries or leaders of other countries, who pretend to be democratic”, Canada is “a power in terms of the rule of law, in terms of the moral values”.

Whatever he meant by the reference to the rule of law, and whoever he was gunning for among other leaders and countries (an easy guess), in wrapping himself in the cloak of progressive values, the Chief Justice sounded awfully like Prime Minister Justin Trudeau and some of his ministers in defending their changes to the Canada Summer Jobs program. The federal government now compels applicants to attest that they conform to the Liberal government’s “values” on reproductive choice and gender rights in order to obtain funding. The program is the subject of a legal challenge, and if it winds up in the Supreme Court, it will be interesting to see how Chief Justice Wagner and his colleagues handle this instance of compelled speech in support of “progressive” values.

Superficially, the TWU decision only threatens the fundamental freedoms of Canadians who adhere to traditional religious beliefs about sexuality, marriage and gender. But the logic of allowing governments to trample on Charter freedoms in the name of ill-defined “Charter values”, an undefined “public interest”, and left-wing slogans like “diversity” and “equity” should concern a gay atheist as much as any evangelical Christian or Orthodox Jew.

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