The Constitutional Promise of Religious Freedom Betrayed

https://youtu.be/Y7ESLUvcM9U

June 15, 2018, will go down in history as the day that the constitutional promise of religious freedom was betrayed.  In the next few minutes I will explain why.

The Supreme Court of Canada released two decisions against Trinity Western University’s bid to have a law school, one involving the Law Society of British Columbia and the other involving the Law Society of Ontario.  Simply put, they have disrupted our understanding of the accommodation of religion in a dramatic way.

Trinity requires students to sign a “Community Covenant” saying that they will respect the school’s religious teachings, including the requirement that sexual relations be kept within the traditional marriage relationship of one man and one woman.  That, the law societies said, was discriminatory, and they refused to accredit Trinity’s law school on that basis.  In its decisions, the Supreme Court ruled by a vote of 7 to 2 that the law societies’ decisions were reasonable.

However, I take the position that the Supreme Court’s decisions were themselves unreasonable and are a harbinger for serious religious disputes to come.

First, the law societies have no statutory authority to investigate the admissions policies of law schools.  This was pointed out by Justices Côté and Brown in their dissent.  They criticized the seven-member majority of the Court by noting that a law society is “not a roving, free-floating agent of the state.  It cannot take it upon itself to police such matters when they lie beyond its mandate.”

It is important to keep in mind that there has been no challenge to the academic calibre of TWU’s proposed program. The curriculum is exemplary and innovative, and its focus on charity law would have addressed a void in legal education. Plus, its practical emphasis on justice for the marginalized and impoverished seems a far cry from the critics’ depiction of TWU as harmful or degrading. As far as the program itself is concerned, there was and is no legitimate concern or objection to accrediting TWU’s law school.

But that did not worry the Court majority since, in their view, the law societies were operating in the “public interest.” The Court expanded on the term “public interest” to allow the law societies to pass judgment on the religious beliefs and practices of Trinity.  The Court said that being in the public interest, the law Societies were entitled to promote “equality” by ensuring equal access to the profession supporting diversity and by preventing harm to LGBTQ law students.

This was justified, said the Court, because when government administrative authorities carry out their work they must not only be concerned about Charter rights, but also Charter “values.”

Charter “values” have become a familiar term over recent months with the current Canadian Government’s Canada Summer Jobs program.  You will remember that the Government is requiring applicants to agree with the concept of Charter “values” in order to be granted funding.

In this case, the Supreme Court has now ruled that Charter “values” are, quote, “accepted principles of constitutional interpretation.”

This is a worrying development.  Here’s why.  Charter “values” are very subjective.  Justices Côté and Brown explain that Charter “values” have no source but the judge making the decision.  A Charter right is written in the Charter.  But the concept of “values” is undefined.  Here is what Côté and Brown say: Charter values are “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.”  And one judge will have a different set of values than another and those values may or may not be shared by all Canadians.  “This in and of itself,” said Côté and Brown, “should call into question the legitimacy of judges or other state actors pronouncing certain ‘values’ to be ‘shared.’”

These rulings are therefore a real problem.  With these decisions, government decision makers have acquired greater latitude to apply their own understanding of what Charter “values” mean.  But it gets worse.

As Côté and Brown explain, these so-called “values” limit “constitutionally protected rights.”  Now, notice the absurdity of what is happening.  Charter “values,” which are not constitutionally written anywhere but exist only in the mind of a judge, are used as justification to limit constitutionally protected rights.

Applied to this case, we see that Trinity has a constitutionally protected right to religious freedom.  This right allowed them to run their university in accordance with their religious beliefs.  In 2001, the Supreme Court of Canada agreed they had that right.  However, today the same Court has ruled that “Charter values” of equality are sufficient to limit that right.  To be clear, these decisions do not say that TWU has done anything unlawful. As Côté and Brown point out, the majority ruling is really a subjective “moral judgment” rather than a legal one.  It truly is a sad decision for the rule of law in this country.  This court did not like the religious practices of TWU when it comes to marriage – plain and simple – and then took away their right of religious freedom.  The Court is now sanctioning the use of the Charter as a sword rather than a shield.  The Court is now saying that the state can enforce its own views on the religious opinions of others.  As I will discuss later, this is now a case where the Court is sanctioning the state to go on a “secularising mission” to ensure that religious enterprises are in compliance with government views of “Charter values.”  We are entering unchartered territory.

Côté and Brown also noted that “Charter values” are “amorphous” and “undefined.”  Listen to what they said: “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.”

Côté and Brown criticized the majority’s use of the term “equality,” noting that the majority does not and cannot point to a specific legal rule or right to ground the equality value in the case.  In ominous language they noted that “equality in an absolute sense is also perfectly compatible with a totalitarian state, being easier to impose where freedom is limited.”

Second, the majority decision did not make any statement about the fact that Trinity is not subject to the Charter.  That is, Trinity, is not a government actor.  The Charter only applies to government as it protects us, as citizens, from government violation of our rights and freedoms.  This basic constitutional fact was not at all considered by the Court majority.  Yet, that was a major point in the 2001 case at the Supreme Court of Canada that ruled in favour of TWU getting accreditation for its Education Eegree (TWU 2001).  The silence of the 2018 Court on this point is deafening.

By the way, the Court did not specifically state that the TWU 2001 case was overturned.  They by and large ignored it.  This is a court that is not afraid to overturn previous decisions – for example in the euthanasia debate, the court overturned its Rodriguez decision of the 1990s when it gave its recent Carter decision making Medical Assistance in Dying legal in Canada.  Thus, it is not surprising in one sense there was very little regard for its 2001 decision on TWU which was very similar to the current case.  In 2001 the SCC dealt with the Education Degree at TWU when it allowed TWU to be accredited.  In this current TWU case it was the Law Degree that needed accreditation but was rejected.  The principle of the Court being bound by previous decisions is now a legal doctrine of the past as the Court is becoming more and more influenced by politics.

Third, the Court majority said that when balancing equality rights and religious freedom, equality (in the most abstract sense) won out.  The Court claimed that if TWU were granted the accreditation, then the “Public confidence in the administration of justice may be undermined if the LSBC is seen to approve a law school that effectively bars many LGBTQ people from attending.”

They noted that “[b]eing required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.  Being required to do so offends the public perception that freedom of religion includes freedom from religion.”

Côté and Brown rejected that analysis, noting that the “role of courts in these cases is ‘not to produce social consensus, but to protect the democratic commitment to live together in peace.’”

The position of the court majority truly is baffling, especially since attendance at TWU is voluntary.  No one is forced to abide by the covenant unless they voluntarily choose to apply to TWU.  TWU is a religious university – it is not a public university.  Being religious, it is only natural that it would have religious rules that it expects its students and faculty to abide by.  The Court is in effect saying, “You Christians can’t require us to accept your views of sexuality even in private religious institutions, but we, the courts, we the government actors, can make you follow our views, and that is totally fine.”  This is simply implausible and certainly not the Canada we have, until now, been accustomed to.

The court majority took exception to TWU’s claim that religious freedom includes the right to enforce non-believers to follow the Community Covenant while they are students.  It now appears that the Court is of the view that religious freedom does not include the right to require its beliefs and practices be complied with by those non-believers who choose to attend TWU.  However, that raises a real problem as religious organizations, by their very nature, require those who want to be part of the community to follow its rules.

Indeed, over the last number of years, the Supreme Court has said that it cannot get involved in religious affairs of churches.  Only a few weeks before it released the TWU School of Law decisions, the Supreme Court said in the Jehovah’s Witnesses case that courts cannot interfere in the internal religious decisions and rules of churches.  However, in the TWU case the Court has done just that.  They waded headlong into theological issues by weighing what is or is not part of Christian practice, essentially claiming “even though you, TWU, say your Community Covenant is part of your biblically-based beliefs, but we disagree, and you cannot enforce it on the non-believers…”

What is the rational explanation for this contradiction between the Wall case, and the TWU case?  The answer I believe is this:  The Court is saying to churches and religious entities, “you can do your own thing within the four walls of your church but once you come out of those walls and run ministries such as schools, universities, and the like, then you must follow the secular rules – including the secular rules of sexuality.  You cannot require non-believers who want your program to abide by your religious practices.”  Therefore, a Christian school must allow non-believers to have access and not expect them to comply with the religious teachings of the school.

In the Nova Scotia Supreme Court, Justice Jamie S. Campbell said that the Charter is not a blueprint for moral conformity.  He ruled against the law society’s treatment of Trinity because he said the state does not have a “secularizing mission.”  It is not to go around requiring religious entities to take on the world views and morals of the government.  There can be legitimate differences of opinion and practices, and that is okay.  However, now the Supreme Court of Canada has said the opposite – it does appear that the state can secularize all religious entities that does not accept its view of the world.  That is very troubling.

Here is the crux of the matter:  How can we live in peace together while still maintaining our differences of opinion and practices on fundamental human life issues such as marriage, abortion, and end of life?  Religious communities by their very nature speak to these issues and more.  Religions are concerned about the human project – which involves deep understandings of culture.  The Court majority talked about diversity but did so in a manner that excludes the religiously committed from the public square.   There is a doublespeak going on.  They are using “diversity” language all the while excluding Christians.  That is not diversity.  That is a denial of the Constitution’s protection.

Canada has traditionally been a country that is multicultural and plural, where many different groups are able to grow and flourish.  The majority decision did not directly say so, but it has implicitly rejected the TWU 2001 decision that championed diversity.  Back then, a mere 17 years ago, the Court was of the view that multiple religious organizations mark our societal landscape and that such diversity of views should be respected.  That was then, this is now.

After these two decisions we are left with a very different understanding of Canada.  Now, even though the Charter does not apply to religious organizations, it does apply indirectly through the use of “Charter values” language.  That concept of indirect applicability was hinted at by Justice Rowe in the Jehovah’s Witnesses case a few weeks ago.  I made mention of it in my last Intersection video.

Our national Court has elevated the “offense” mantra of identity politics to a Charter value which is on par with a Charter right.  The long-term implications of this case will now be played out in the coming months as various groups who find religion offensive will use these cases as a template for further revolutionary attacks against religious entities.

However, this is indeed a different day, a different time.  A time when we must wonder what’s next?  What other public license or approval does a religious charity require from the government that allows the charity to carry out its work?  I can think of some:

–        Registered charitable status;

–        Licensing of religious elementary and high schools;

–        Universities;

o   Nursing schools;

o   Schools of business;

o   Education degree programs;

–        Nursing homes;

–        Building permits for construction;

–        Daycare centres;

–        Summer camps.

Already, even before these decisions, the Canadian government took a similar view with the issuing of summer jobs grants.  Every indication is that we are at a cultural moment where religious bodies are being pressured to leave the public square.  Only totalitarian states have done that.

In short, every government bureaucracy or agency has now been given the green light to review who they give government benefits or programs to, based on the amorphous, ill-defined concept of “Charter values”, a concept that has been shown to take away a right that has been inscribed in the Charter itself.

The former Chief Justice even stated that had TWU been given the accreditation, then the law societies would have been “condoning” the discrimination.  That is simply not so.  Côté and Brown noted that it would have instead been accommodating religious freedom not discrimination.  Rather, “by accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians.”

Instead of accommodating the rights of all Canadians, the Supreme Court has now put the rights of all Canadians in a precarious position.  Rights are now subject to the Charter values – being, as Côté and Brown noted, “the idiosyncrasies of the judicial mind.”  That does not bode well for freedom in this country.  Today, it is religious freedom that has been taken away.  We, religious and non-religious alike, have every reason to be concerned.

This case will be discussed and debated for years to come.  I hope this ruling is the low point of Charter jurisprudence dealing with the troubling concept of “Charter values.”  But given the resolve of this Court to maintain this disturbing concept we are bound to suffer more loss of freedom than ever before.  This is only the beginning of a very different chapter on religious freedom than we have experienced in this country to date.  Côté and Brown stated that the method by which the Court came to its conclusions “betrays the promise of our Constitution.”

I have nothing to add to that.  These cases were certainly a betrayal of our Constitution’s promise to protect religious freedom.

Stay tuned. This story is not over yet, not by a long shot; our resolve to correct this injustice continues.