A Referendum On Religious Freedom

What is the point of enshrining religious freedom in the Canadian Charter of Rights if you can call a referendum to take it away?  It would appear that the British Columbia Law Society—its benchers and membership—no longer see that irony in their animus against Trinity Western University’s Law School.

In its vocal displeasure of Christian morality as enshrined in the TWU Community Covenant, the Law Society proves that it is more interested in being politically in tune with legal academia, the media, and popular opinion than following the rule of law and protecting the religious freedom of a minority university community.

The B.C. Law Society’s mandate, as with all such bodies across the country, is to protect the “public interest.”  That interest appears to include the demand that there be no religious belief and practise of traditional marriage as one man and one woman for life.

For a long time we have been socially constructed to view traditional marriage as anachronism, sexist, and patriarchal.  Since 1968 Canada has been a world leader in reforming its law to allow for the easy dissolution of marriage, and in 2004-2005 redefined marriage for civil purposes to be “any two persons.”  Our media is rampant with anecdotes, drama, music, and the like that has belittled and derided those who continue to advocate traditional marriage.  Traditional marriage within religious institutions now appears to be in the crosshairs of our intellectual elite who, in their Orwellian doublespeak, claim to be fighting discrimination when they demand religious institutions follow their lead in implementing the “public” understanding of marriage.

Given that the law society’s decisions in Nova Scotia and Ontario to deny accreditation to TWU Law School are already before the courts, it was not necessary for the B.C. Law Society to force a referendum on its membership.  However, listening to the BC Benchers articulate their positions, it was evident that part of the motivation of implementing this referendum was to send a message to the Supreme Court of Canada.

I understand that part of the message to be sent to the supreme court of our country is this: “Religious belief and practise of traditional marriage in Canada must yield to equality rights.”

Not only is the Supreme Court of Canada hearing that message, but so too is the religious community.  We understand that when it comes to religious freedom, the legal profession—in some jurisdictions at any event—does not “have our back.”  They speak as if to support religious freedom; however, what they really mean is that we have the freedom to “believe” in traditional marriage but not the freedom to “act” on that belief.

The BC Law Society Benchers are not the only ones with that message. Consider the following argument of J. René Gallant, president of the Nova Scotia Barristers’ Society, who argues that the requirement to sign the Community Covenant in keeping with TWU religious beliefs is a step too far:

[TWU has the right to] hold those beliefs. They have the right to talk about those beliefs. They have a right to explain those beliefs and to be around people like themselves that [sic] believe in those principles and those values, but where we say it stops, and we think the law will support this, is that when you are going to require other people to sign a document that says that they will also follow those beliefs, as a condition of coming into the law school, we think that is wrong. And in particular, not only do they have to sign the document but if they are violating those beliefs while they are at law school, they can actually be disciplined, including being expelled from the law school. So it’s taking those beliefs and taking them into action the way they have done; that’s the real problem. But what we said is you can have those beliefs, we can balance religious freedom, just don’t make the law students sign the document, and then you will be fine and we will accept them here in Nova Scotia.[i]

The argument that Gallant and others are making is that the requirement to sign the covenant is in fact the “act” that justifies the law societies’ rejection of TWU Law School. That argument fails to acknowledge the similarity between the current requirement to sign the Community Covenant and the requirement to sign the “Community Standards” document that the Supreme Court of Canada had to deal with in 2001.[ii] In that case, the Court said, “the proper place to draw the line . . . is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.” However, the Court  did not make any reference to the “act” in signing the Community Standards as being an unacceptable act.

Indeed, one would suspect that the Court will say today that the “act” is not the requirement to sign the covenant, but whether the TWU graduates discriminate against the LGBTQ clients when they practise law. Since there will be no TWU law graduates until at least 2019, such evidence will be hard to come by.

Further, the argument belittles the promise of religious freedom as enunciated by Chief Justice Dickson: “The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.”[iii]

Religious freedom is more than beliefs; it demands a response, a carrying out of its precepts and principles in one’s daily life, or “practice,” as Dickson rightly noted. The Community Covenant is an outward expression and practice of the belief of marriage by a religious institution that is private, whose students voluntarily apply to attend. It is not a context where students are caught in an oppressive environment where they are forced to attend. They do not have to be there. As the Court noted in 2001:

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.[iv]

What appears to be driving this debate is the underlying discomfort—or, dare I say, disgust—the opposition feels toward TWU’s religious position on marriage. Law professor Richard Moon exemplified this sentiment when he said that public commitment to sexual orientation equality (in public schools) “will involve nothing less than a repudiation of the religious view that homosexuality is sinful.”[v]

This attitudinal bias against religion is overshadowing any commonsensical understanding of the right of a religious institution to maintain its beliefs and practices regarding religion, even though it is Charter protected. With respect to marriage, the opposition prefers religious freedom that is in form or theory only—without any substance.

As University of Victoria Law School professor, Mary Anne Waldron, recently noted, the opposition against TWU is motivated by “a desire to exclude and repress those who disagree . . . If you will not approve a wide range of sexual conduct as equally moral, then you must not receive accreditation to teach law . . . [T]he rights of those who adhere to a traditional religious vision are excluded from the conversation and, indeed, from full participation in society.”[vi]

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[i] Rachel Ward, “Insights,” Accessible Media Inc. (April 30, 2014), online: http://wpc.2269.edgecastcdn.net/002269/mps/Accessible_Media_Inc._VMS/622/139/INSIGHTS_-_Wednesday_April_30,_20141398807729280.mp3

[ii] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, at para. 36.

[iii] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at para. 94.

[iv] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, at para. 25.

[v] Richard Moon, “The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation in the Public Schools,” in David Rayside and Clyde Wilcox, eds., Faith, Politics, and Sexual Diversity in Canada and the United States (Vancouver, B.C.: UBC Press, 2011), 321 at 338.

[vi] Mary Anne Waldron, “Sacred and Secular Belief:  Can We Have Peace?” Comment (Fall 2014) (Hamilton: Cardus, 2014), pp. 21-27 at p. 26.