The Divisional Court held that though the religious freedom of TWU was infringed, LSUC’s decision was justified because it was reasonable to take into consideration the discriminatory nature of TWU’s admissions policy when deciding to accredit the proposed school.  However, Court did say that LSUC “will be duty bound to properly consider” the individual accreditation requests of TWU graduates to ensure their religious rights are minimally impaired.  (Para. 128)

While this may appear to be a major step back for Trinity’s law school, it is really one step toward the ultimate decision to be handed down, eventually, by the Supreme Court of Canada.  TWU has already announced that it will be appealing the decision[2] at the Ontario Court of Appeal.  Among the interesting issues to watch on the appeal are these:

The Democratic Imperative

The Divisional Court’s decision made no mention of the recent statements from the Supreme Court of Canada about the “democratic imperative.”  That imperative is “the pursuit of an ideal: a free and democratic society”.[3]  The state is required to “encourage everyone to participate freely in public life regardless of their beliefs.”[4]  The state has no business to create “a preferential public space that favours certain religious groups and is hostile to others.”[5]

The question for the Court of Appeal will be, “Is the Divisional Court’s decision one that is in keeping with the democratic imperative?”

Many commentators suggest that when religious institutions are involved in the “public sphere” they must remove their religious scruples and adopt the public norms.  Their argument suggests that in the case of a religious university wanting a law school, it must be willing to put aside its religious practise to get public accreditation.

The Divisional Court appears to have adopted the view that the state can have a preferential view on religious beliefs and, based on that view, refuse to accredit religious institutions.  The Court said TWU cannot compel the Law Society to accredit its law school “and thus lend [the Law Society’s] tacit approval to the institutional discrimination….”  (Para. 115) Because, says the court, that would mean that “TWU could compel the [LSUC], directly or indirectly, to adopt the world view that TWU espouses.”  (Para. 115)  That is a telling statement of the Court and is out of place with the recent comments of the Supreme Court. The Supreme Court says the state cannot take sides on religious matters – it must be neutral.  It cannot deny a service to a citizen because it disagrees with that citizen’s worldview.  Herein lays bare what is at issue in this case.  It is a matter of competing “worldviews”.  The Divisional Court appears to be saying that if the Law Society does not like TWU’s worldview on marriage, then it can deny accreditation.  That is simply unjust.  No state actor should hold back on its public duty on the basis of differences on issues of “worldviews.”   The Supreme Court’s Saguenay[6] decision stated unequivocally that the state must be neutral on religious beliefs.  The SCC said,

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 31 and 50‑51). On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in s. 27  of the Canadian Charter . Section 27  requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter , but also with a view to promoting and enhancing diversity….[7]

Note the following:  TWU is the only religious law school in the country; its religious practise is to support marriage as  betweenone man and one woman.  That religious belief and practise is not against public policy but protected by the Charter.  Indeed, in 2005, the Marriage Act[8] was passed with this prescient clause, “WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage.”

It will be interesting to see how the Court of Appeal deals with the “democratic imperative.”

The Right of Religious Institutions To Self-Determination

The Divisional Court took issue with the term “discrimination”.  It noted that the belief system of TWU does discriminate and rejected TWU’s argument that it was not discriminating.  There is a difference of opinion about what is and is not acceptable discrimination.  This is something the Court of Appeal will have to address.  In essence, it is a right of self-determination of its internal rules.

The fact remains the discrimination practised by TWU is a “lawful” discrimination.  The university is not for everyone as the Supreme Court of Canada noted in 2001 and stated,

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. [9]

The Divisional Court takes umbrage at TWU’s position “To assert that that result [to attend TWU means to disavow one’s beliefs and, for LGBTQ, their identity] is not, at its core, discriminatory is to turn a blind eye to the true impact and effect of the Community Covenant.” (Para. 106)  Such umbrage is not only directed at TWU but at the very reasoning of the Supreme Court of Canada’s decision of 2001.  Indeed, the Divisional Court makes a frontal attack at that 2001 decision when it states that:

First, discrimination is still discrimination, regardless of whether it is unlawful… (Para. 108)

Second, the fact that the Community Covenant may promote an important right, that is, the observance of a particular religious belief, does not mean, by virtue of that itself, that the effect of the Community Covenant is not discriminatory (par. 109)

Third, while TWU may not be subject to the Ontario Human Rights Code, the [LSUC] is. (Para.110)

Further, the Divisional Court was not impressed by TWU’s position that it treats everyone with fairness, courtesy and open-mindedness. Such “does not change the fact that notwithstanding TWU’s stated benevolent approach…in order for persons, who do not hold the beliefs that TWU espouses, to attend TWU, they must openly, and contractually, renounce those beliefs or, at the very least, agree not to practise them.  The only other option … is to engage in an active deception…with dire consequences if their deception is discovered.”  (Para 112)

Unfortunately, the Divisional Court’s discomfort with the TWU Community Covenant is a discomfort with the entire religious institutional reality.  From one end of this country to the other we have religious institutions that have established rules of admission based upon religious beliefs and practises.  Just as the Court noted that “sexual conduct is an integral part of a person’s very identity” so too are the religious beliefs and actions of a person.  The challenge made by the Divisional Court on the internal administration of TWU is, in reality, an attack on the very idea of religious community and their institutions.

The Court of Appeal will have to decide whether a religious institution can continue to have the right of making its own internal rules that govern the moral and ethical ethos of its operations.

The Religious Freedom To Have A University

The Divisional Court expressed reservations about whether evangelical Christians should have a right to claim protection of religious freedom for religious beliefs and practises that are not mandatory.  Here is what the Court said:

“There is no evidence before us that the ability of an evangelical Christian to gain a legal education requires that they study at a law school that only permits the presence of evangelical Christian beliefs and only permits the attendance of those persons who commit to those beliefs.  Indeed, the contrary would appear to be obvious from the fact that evangelical Christians have been attending secular law schools, and successfully becoming lawyers, for decades, if not longer.”  (Para. 78)

That is a very troubling rationale.   First, the Divisional Court appears to have misunderstood TWU’s position.  It is not that evangelical Christians are required to study law at a Christian law school.  Rather, it is that they choose to do so.  Second, the Divisional Court appears to be directly at odds with the Amselem decision[10] of the Supreme Court of Canada where the Court stated,

Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter.  It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.  An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.[11]

“Plagued with difficulties” is an apt description of this reasoning by the Divisional Court.  To limit religious freedom by saying in essence “that since law schools are not required by the evangelical Christian community it is therefore not something to be protected under the Charter,” is to totally ignore the Charter right of religious freedom.

In the end, the Divisional Court did not allow this rationale to deny protection under s. 2(a) of the Charter but it nevertheless reveals an analysis that is, to say the least, troubling.  We will watch with interest how the Court of Appeal deals with the religious freedom claim of a community to operate a law school.

Conclusion

The Divisional Court took a very radical approach, quite different from the decision of Justice Jamie S. Campbell[12] (whom the Ontario Division Court referred to as “a judge in Nova Scotia”).  The Ontario decision has called into question the right of a religious institution to determine its own internal operations in accordance with its religious beliefs and practises.  This is a cause of concern for the Canadian Council of Christian Charities.  As an umbrella group of 3,300 charities across the country, the right of our community to operate within a religious ethos is foundational and must be preserved.

Religious freedom of religious institutions is at stake in this case.  When one considers the fact that TWU is now fighting on multiple legal fronts on virtually the same issues it fought over about 15 years ago, we cannot but conclude that this is a fight for justice that is bigger than the sum of the parts.  It remains a challenge to establish the right for all religious institutions to determine for themselves how they ought to operate while being faithful to their religious ideals.

The Divisional Court’s decision may appear to be a step backward, but in the grand scheme of things, it is a march forward to the ultimate tribunal at the Supreme Court of Canada, which will ultimately determine whether its 2001 decision, that respected the rights of religious institutions, continues to be good law.

—–

[1] Trinity Western University v. The Law Society of Upper Canada  2010 ONSC 4250, dated 2015-07-02.

[2] http://www.twu.ca/news/2015/035-lsuc-decision.html

[3] Mouvement laïque québécois v. Saguenay, at para. 75.

[4] Mouvement laïque québécois v. Saguenay, at para. 75.

[5] Mouvement laïque québécois v. Saguenay, at para. 75.

[6] Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16

[7] Mouvement laïque québécois v. Saguenay, at para. 74.

[8] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20.  Online:  http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html

[9] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31 at paragraph 25:

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.

[10] Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47

[11] Syndicat Northcrest v. Amselem, at para. 47.

[12] Trinity Western University v. Nova Scotia Barristers’ Society,  2015 NSSC 25

http://decisions.courts.ns.ca/nsc/nssc/en/100659/1/document.do

The post The Onward March of TWU: Next Step The Court of Appeal appeared first on CCCC Blogs.

Further, it is evident that a TWU “victory” of the BC Law Society’s decision a couple of weeks ago is now being threatened by a new initiative to overturn that decision. The BCLS will review its decision to approve the TWU law school if five percent of its members call for the review. A special general meeting will be called within 60 days of the request to consider “a resolution directing the Benchers to declare . . . that TWU is not an approved faculty of law.”

Given the precedents in Ontario and Nova Scotia, the cold winds are set to blow on the June 27 meeting of the Law Society of New Brunswick, which will decide if TWU Law School meets the academic requirements for admission to the New Brunswick Bar.

Dangerous Precedent

These developments against accepting graduates of TWU Law School set a dangerous precedent that all Canadians should be concerned about.

First, the legal profession has disregarded existing law on religious freedom as enunciated by the Supreme Court of Canada. The LSUC and NSBS have acted in the manner they think the law ought to dictate—not according to what the law actually requires. In 2001, the Supreme Court of Canada decided that the BC College of Teachers was offside in refusing to accredit TWU’s education degree because the BCCT did not approve of TWU’s requirement that students not engage in what TWU defines as immoral sexual activity. The Supreme Court said in that case,

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.[1]

We have arrived at a point in our society where influential legal bodies in this country ignore a Supreme Court of Canada decision.

When I became a lawyer in Ontario, I had to take the following oath:

I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me. I shall conduct all cases faithfully and to the best of my ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.[2]

Note the phrase “I shall champion the rule of law and safeguard the rights and freedoms of all persons.” The current law is clear: TWU has the right to have a religious position on marriage. However, the opponents of TWU’s law school disagree. Rather than accept the current state of the law, the opponents have decided to administer the current law as if it had already been changed to meet their interpretation. That is not how the law works. You change the law first—by the appropriate authorities—and then you administer it accordingly.

The normal route for those who conscientiously oppose a law is to either convince the lawmaking body to change the law or face the consequences of civil disobedience. In this current matter, the legal profession has decided that the law is inconsequential and can be disobeyed with impunity. It has turned the practice of law upside down; we have a legal profession governed not by law but by emotion. Whenever this has happened in the past, it has proven to be a harbinger of trouble.

Moreover, it is also very troubling that the opponents have rejected the mobility rights of lawyers throughout Canada. After years of painstaking work in assembling a Federation of Law Societies that would enhance the ability of lawyers to move from one jurisdiction to another, the LSUC and NSBS have decided that when it comes to religious beliefs and practices of TWU graduates, mobility can go out the window.

The opponents, rather than staying true to their oath, have used the practice of law against TWU to wear the university down. Never before in the history of this country have we seen a legal assault of this magnitude against a religious institution.

TWU has already passed the penetrating review by the Federation of Law Societies and was approved. That should have ended the matter. The opponents said it was not enough and urged that each individual law society have the “courage” to do its own separate review.[3] I submit that what we are witnessing is not courage but unprecedented legal bullying. It is the same tactic big multinational corporations employ to push the little guy aside: wear them down. Eventually, the targeted individual or entity gives up. Despite the BC Law Society’s exhaustive examination of TWU’s law school, it approved the school. The LSUC’s 28-21 decision is a major setback and will ultimately mean years of further litigation as the case takes the long road to the Supreme Court of Canada. This is, of course, what the opponents wanted in the first place. For example, the Nova Scotia Human Rights Commission (NSHRC) argued that the Nova Scotia Barristers’ Society should refuse to recognize TWU’s law school and thus trigger a judicial review with the expectation that the Supreme Court of Canada will rehear the same issues it decided on in 2001 and this time rule against TWU.[4]

As the New Brunswick Law Society does its own “independent” review, there can be no doubt that TWU opponents there will be emboldened by their colleagues in Ontario and Nova Scotia. Already the opponents are mobilizing to overturn the BC Law Society decision.[5] In addition, a Christian gay person who feels the law school will discriminate against his rights when he plans to apply to the school has started a separate legal action.[6]

We are clearly headed to the Supreme Court of Canada. When there, we will see whether that Court will continue to be the jealous guardian of religious freedom that it claimed in the Marriage Reference Case[7] in 2004 and whether the protections noted in the federal Civil Marriage Act’s preamble holds true. The preamble stated:

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage.[8]

That the legal profession has disregarded existing law on religious freedom as iterated by the Supreme Court of Canada is just the first reason Canadians should be concerned.

Second, there are no TWU law graduates as of yet; the entering class will not be until 2016, which means that we cannot expect the first TWU graduate until 2019, but already the LSUC AND NSBS has argued that the future TWU graduate will not have the requisite skills to practise law, because he or she signed on to a covenant that upholds the sacredness of marriage between one man and one woman. If such prospective students are to be barred from the practice of law in Ontario, then nothing will stop them from refusing to renew licenses for those of us who not only hold to the same views as TWU but also happen to be graduates of undergrad Christian colleges. But it may not stop there. Perhaps the LSUC and the NSBS will soon prohibit law schools from accepting any graduates of Christian universities because of their religious beliefs and views on marriage.

Third, with the denial of TWU students, the LSUC and NSBS have set a precedent for other professional bodies to ignore the Charter right of religious freedom. We should not be surprised if the BCCT decides that now is the opportune time to reject the accreditation of TWU’s education program and force a rehearing of the 2001 case. Bible school graduates of social work, health-related fields, etc., all legitimately fear the new inquisition about to fall on this country.

Fourth, LSUC and NSBS’s message is that Canadians who believe marriage to be exclusively between one man and one woman are personae non grata in the practise of law. As I have argued in a previous post, we are now facing the possibility that a religious test will determine whether a person can practise law. In the past, ethnic and religious minorities were discriminated in the practice of law.[9] It now appears we are about to face similar discrimination.

Fifth, the LSUC and NSBS do not respect the diversity of views on marriage in this country. For the LSUC and NSBS only one view of marriage is valid and legitimate. However, the LSUC and NSBS take a veritable leap by demanding that religious schools not to be permitted to practise their faith unless their tenets are congruent with that particular view. Furthermore, let’s consider the direct implication of such a demand: if an evangelical Canadian faces discrimination because of his or her religion, say in the workplace, are the lawyers who supported the LSUC and NSBS decision capable of representing them? Should we now doubt the ability of gay lawyers to serve our needs?

Sixth, the controversy over the accreditation of the TWU law school is a controversy about the future of Canada and its commitment to pluralism. It is also telling about the legal academy’s current understanding of religious freedom and what that will mean for the future of religious communities. Under the guise of diversity, ironically, the legal academics want to see diversity removed. For example, consider the statement Windsor Law posted on Facebook on March 12, 2014:

We are pleased to announce that today, at Faculty Council, Windsor Law unanimously passed a motion that states the LSUC should make accreditation of the TWU law program for practice in Ontario conditional on the removal of the discriminatory clauses in their community covenant. A great day for Windsor Law standing up for equity and diversity in the legal profession![10]

Opponents of the proposed TWU law school are apparently unable to recognize the irony of refusing legal accreditation to TWU in the name of “standing up for equity and diversity in the legal profession.” What would create more “equity and diversity” in the legal profession: (1) banning one Christian law school and allowing for only the secular law schools or (2) allowing a Christian law school to teach along with the secular law schools?

The diversity of Canada is now endangered. Multiculturalism can no longer deliver what the country has once promised. The following statements of the Supreme Court are ringing hollow right now:

Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.[11]

Twenty years ago the LGBTQ community campaigned for the right to marry.[12] This was achieved in 2004 by the Supreme Court of Canada[13] and in 2005 with the passage of the Federal Marriage Act.[14] Canada went from one non-neutral state-backed understanding of marriage—namely, the traditional understanding of marriage as exclusive to one man and one woman in a conjugal relationship—to a neutral understanding of marriage as between “any two persons.”

However, the opponents of TWU no longer find this neutral definition acceptable. The demand now is for another one non-neutral state-backed understanding of marriage of “any two persons.” They have gone further to pressure the state to enforce that understanding of marriage on every institution across the country, even religious institutions such as TWU.

What will stop advocacy groups from gaining enough momentum to prevent students of Christian elementary, secondary and post-secondary schools from obtaining their provincially issued diplomas? To deny TWU a law school based on its definition of marriage also denies the right of Christians to organize themselves into communities of faith to operate their ministry within their particular faith perspective—even though the Canadian Charter promises to protect religious practice.

This has been a long, cold winter in more ways than one. A cold chill is blowing across this country as the activists against religious autonomy on matters of sexual morality have dealt a massive blow to religious freedom. If we didn’t realize that our religious freedom was fragile before the Law Society of Upper Canada and the Nova Scotia Barrister’s Society decisions against TWU—we do now.

Even a Supreme Court of Canada decision only 10 years old was not enough of a firewall against a very determined opposition who are adamant that when it comes to marriage there is only one acceptable view. The legal profession is telling the religious community that there is no tolerance for a different religious opinion and practice in that regard. All must agree to the newfound truth as determined by the legal academia.

If nothing else, the visceral reaction that Trinity Western University has had to face from the legal profession—the misrepresentation of their position, the outright vilification of the institution itself—is proof positive that there is an unequivocal need for a Christian law school in Canada now more than ever before. Given the strident opposition of the law schools against those who hold to religious beliefs and practice of the traditional marriage, what will this mean for those religious students who attend secular schools but who also hold to a traditional view of marriage? How will they be protected from the secular opponents in such settings?

Further, those of us lawyers who have expressed views and written letters and articles in favour of TWU can expect just as fierce opposition should we ever dare to seek public service in the judiciary or other public office. We would be facing opposition not because of something we have done wrong but rather because of a law society’s fear that we might do something wrong in the future. Our religious views are now to be seen as a liability. It is becoming hard to imagine that religious legal professionals who believe in and practise traditional marriage will be seriously considered for appointments in law schools. Indeed, the LSUC and NSBS and other societies campaigning to reject TWU’s proposal are failing to consider the dire but logical consequences of their stance; their decision affects much more than simply the existence of a law school.

The agenda, actions and assertions of the Law Society of Upper Canada and the Nova Scotia Barristers’ Society do not bode well for a group that is supposed to stand up for justice. Canada’s legal community must recognize the unprecedented injustice against religious freedom that the LSUC and NSBS’s actions represent and the urgency with which we must act to prevent the erosion of freedom that would commence as a result.

—–

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

[2] The Law Society of Upper Canada, “Licensing,” p. 24, http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485805. Emphasis added.

[3] Elaine Craig, “Law Societies Must Show More Courage on Trinity Western Application,” The Globe and Mail,December 18, 2013, http://www.theglobeandmail.com/globe-debate/law-societies-must-show-more-courage-on-trinity-western-application/article16023053/

[4] Lisa Teryl (former Legal Counsel, Nova Scotia Human Rights Commission currently: https://www.terylscott.ca) to Executive Committee and Council Members, “NSBS Request for Submissions Regarding TWU’s Application for a Law School,” February 10, 2014, http://nsbs.org/sites/default/files/ftp/TWU_Submissions/2014-02-10_NSHC_TWU.pdf, at para. 12.  https://www.terylscott.ca

[5] “Trinity Western Law School Could Face New Law Society Vote,” CBC News, April 17, 2014, http://www.cbc.ca/news/canada/british-columbia/trinity-western-law-school-could-face-new-law-society-vote-1.2613783.

[6] James Bradshaw, “B.C. Government Sued Over Approval of Trinity Western Law School,” The Globe and Mail, April 14, 2014, http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/lawyers-challenge-bc-approval-of-trinity-western-law-school/article17957304/.

[7] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do.

[8] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20, online: http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html.

[9] See for example, Mario Nigro and Clare Mauro , “The Jewish Immigrant Experience and the Practice of Law in Montreal, 1830 to 1990,” Mcgill Law Journal / Revue De Droitde Mcgill, (1990) vo. 44, 999. Online: http://lawjournal.mcgill.ca/userfiles/other/3792586-44.NigroMauro.pdf.

[10] Windsor Law’s Facebook page,March 12, 2014, https://www.facebook.com/UWindsorLaw/posts/740134786031850.

[11] TWU 2001, at para. 33.

[12] Sylvain Larocque, The Story of a Canadian Social Revolution: Gay Marriage (Toronto: James Lorimer & Co., 2006).

[13] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79.

[14] Civil Marriage Act. S.C. 2005, c. 33. Assented to 2005-07-20.

The post The Cold Chill of the Legal Profession’s Rejection of Religious Freedom appeared first on CCCC Blogs.

The Government of Quebec appears to be of the view that the religious minorities in its employ are like the obnoxious smoker who contemptuously and purposely blows his smoke on the non-smoker.  It gets under one’s nose.  Religious people who wear specific clothing because of their religious faith are obnoxious – they are pushing their religion in a space where religion is not wanted.

This week will be an historic week for freedom of religion in the province of Quebec.  Quebec Premier Pauline Marois’ government is expected to reveal some details of its “Charter of Quebec Values” tomorrow.  The full Charter will not be released until the end of the legislature’s fall session.  The press suggests that one of the expected provisions in this “charter” will be the requirement that all those who receive a salary from the government will not be permitted to wear religious symbols in the workplace.[1] Yet again Justice Rand’s 1953 statement in a religious freedom case from Quebec is applicable, “A religious incident reverberates from one end of this country to the other, and there is nothing to which the “body politic of the Dominion” is more sensitive.”[2]

Religious sensitivity will be in full display in the coming days and weeks in Quebec when Marois’ new charter is released.  It is unthinkable that Canada, known as a welcoming society to people from all over the world, would have a provincial government taking direct aim at public religious expression of its citizens.  Yet here we are.  The fact that this new anti-religious rule is limited to government paid workers is of no comfort.  First, since government paid workers will include school teachers and daycare workers it will send a message to all religious minority students that they need not apply to government careers; and second, this type of state discrimination will only increase. Today it is government paid workers who face this humiliation; who will be the target in the future as government becomes more emboldened after they are successful (which I doubt will be the case in the long term) in implementing this draconian measure?

What could possibly be the motivation for such an arcane policy?  Pauline Marois suggested one possible reason.  She said that “women working in daycares who wear hijabs are in a position to influence children to practice religion.”[3]  Another government official is quoted as saying, “We don’t want children exposed to religious influences in the public sphere. That is a choice that belongs to parents.”[4] These are curious statements.  Especially when you consider the irony that this is from the same government who introduced a mandatory course in the school curriculum that exposes children to the entire gambit of religious practices and beliefs – all without parental consent.  Then, when some parents requested their children be exempted from the course the government refused[5] So much for a government concerned for parental rights over children’s religious upbringing!  By the way, Quebec’s refusal to allow parents to exempt their children from the Ethics and Religious Culture curriculum has been to the Supreme Court of Canada once[6]  and is subject of another case on its way to the same court, the “Loyola School Case.”[7]

The government of Quebec has now firmly entered the field of religion and its expression.  It claims neutrality but its actions belie that claim.  Rather, the government has taken the role of arbiter of what will be acceptable and unacceptable religious expression in society.  Though, in its current form, the charter is limited to regulating the religious expression of government employees there can be little doubt that given time, considering the inflationary nature of state bureaucracy to expand its influence in citizen’s private lives, this policy of “neutrality” will move further toward the private sector employees.  I can imagine that the justification will be along the lines that private sector employees must also be free from religious garb because, while they are not employed by the state, their work is nevertheless regulated by the state.  They are in the “public” sphere – which must be “neutral.”  So expect increased pressure on church run nursing homes or private schools.  Private schools often give state-accredited diplomas.  Therefore, as the logic would flow, they ought to be subject to government regulation in such matters as religious expression.[8]

If the Quebec government has its way the public sphere is about to become bland.  All forms of religious dress in the “public service” will be unacceptable.  No longer will the “public service” look like the public they ostensibly serve.  They will instead have a “neutral” appearance.  Of course, “neutrality” will be what the state says it is.  Like beauty, it is in the eyes of the beholder.  Perhaps the Quebec civil service would do well to wear a uniform – that way there can be little doubt as to what “neutral” clothing means?  Then again, a state issued uniform also has difficulty when you consider that even the RCMP had to make accommodations for religious minorities wearing its distinctive uniform – the Sikh members of the force wear turbans.

While we may be tempted to rely on the Canadian Charter for the protection of minorities, recent Supreme Court of Canada decisions offer little comfort. Consider, for example, the decision involving a Hutterite community in the province of Alberta.[9] For 29 years the Alberta government exempted the Hutterites from having to have their picture taken for their drivers’ license. The Hutterites believe that all picture taking violates the Biblical Commandment that says we are not to make any graven image. For this reason they shun all portraits – including government issued identification. Alberta changed policy when it moved to a digital system for the drivers’ license – no longer would the Hutterites be exempt. The rationale given was that it was to protect against identity theft. This, despite the fact that there was not one case of identity theft of a Hutterite within the 29 years they were exempt from the photo requirement. Also consider that some 700,000 Albertans were without a drivers’ license, yet they were not required to have their picture taken to prevent identity theft. In perhaps the most shocking disregard for the right of religious freedom ever decided by the Supreme Court of Canada since the Charter in 1982, the Court held in favour of the Alberta government. The Court gave deference to the government because it was dealing with a “regulatory” matter and refused to accept the concept that government had to accommodate religion when it changed its policy. The Court reasoned that a regulatory policy of general application was different than the employer/employee relationship which allows an individual to be accommodated. A government could not be expected to make accommodations to specific individuals.“It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief. Laws of general application affect the general public, not just the claimants before the court.”[10]

There is little doubt that the Charter of Quebec Values will be challenged in court.  t is inevitable – simply because it is so foolhardy. A possible argument against this Charter of Values will be the fact that, unlike the Hutterite case, it is a legislation that limits religious freedom directly as opposed to an indirect effect. There is nothing indirect by the Quebec government specifically targeting religious garb that many religious people wear everyday as part of their religious identity.

“A law’s constitutionality under s. 1 of the Charter is determined,” said the Supreme Court, “not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact.”[11] The government’s objective must be important and its’ impact on religious rights must be proportionate. In other words, an extremely important objective will be given more leeway to impact religious freedom – for example, as in the case of war. In a state of war, where the state’s very survival is at stake, religious freedom may be justifiably be curbed than it would otherwise be.

As noted above, the Quebec government objective has to be more than that they want to protect the parental rights to educate children on matters of religion. Giving the government the benefit of the doubt, perhaps they seek to bring about greater societal harmony by removing the religious symbols a person may wear. The government does not want to create employment strife by arguments over religion. There is no evidence to date of such a justification. However, it seems to me, even that argument will fail because such a policy will not bring harmony but division.

One would hope that the Supreme Court will distinguish the Quebec situation from the Alberta Hutterian case and strike down this Machiavellian effort to bully the religious minorities in its employ.  In the Hutterian Case the Supreme Court added a further insult on the Hutterites; the Court said that they still maintained a “meaningful choice” to keep their religious practise because they did not need drivers’ licenses – they could simply hire transportation!  Will the Court see that Quebec has upped the ante more than Alberta did to the Hutterites? In Quebec it is a matter of employment not drivers’ licenses. Will the court see these as similar or different?

If the Court understands the Quebec Government Charter to be similar to Alberta’s decision to change its drivers’ license policy then I suppose they could say the Quebec Government’s religious employees have a meaningful choice. The religious workers could work elsewhere and keep their religious practise. They do not need to work for the Quebec Government. I, for one, will argue vigorously for the right of Quebec’s religious minorities not to have to face such a disconcerting choice.

It is time for the Supreme Court to revisit, at the next opportunity, the concept of giving government deference in regulatory matters that have the effect of violating freedom of religion. A religious minority can never be on an equal playing field vis-à-vis the state. “Meaningful choice,” like “neutrality” will be decided by those who have no power or ability to decide for themselves. To say that a religious person can work elsewhere where they can wear their religious garb is not a satisfactory answer. What message is the government saying to society by implementing such a policy? Is it not saying that, “you are not valued as a citizen if you are so religious that you practise your faith by what you wear?” Where does it end? Is it unacceptable for a Mennonite Order woman to wear traditional plain dress if she were working for the Quebec government? Indeed such traditional plain dress is as much a religious statement as a Muslim woman to wear the hijab.

The Apostle Paul was taken to Gallio, proconsul of Achaia, because “This fellow persuades men to worship God contrary to the law.” Before Paul could answer to the charge Gallio responded, “If it were a matter of wrongdoing or wicked crimes, O Jews, there would be reason why I should bear with you. But if it is a question of words and names and your own law, look to it yourselves; for I do not want to be a judge of such matters.”[12]

Why the Province of Quebec would want to be “a judge of such matters” baffles me.  Certainly the government has more to do than worry about the religious symbols on the clothing of its employees.

The post Has the Religious Worker Become As Obnoxious As A Smoker In The Workplace? The Charter of Quebec Values: A Meaningful Choice? appeared first on CCCC Blogs.

International Journal for Religious Freedom:

Editorial Committee: Th. Schirrmacher, Ch. Sauer, G. Yogarajah Issn: 2070-5484 Director: Prof Dr Christof Sauer, Cape Town, South Africa; Prof Dr Thomas Schirrmacher, Bonn, Germany  Publisher:  International Institute for Religious Freedom (IIRF)  Publication Place: Cape Town

http://www.iirf.eu/index.php?id=30&L=%

The International Journal for Religious Freedom (IJRF) is published twice a year and aims to provide a platform for scholarly discourse on religious freedom in general and the persecution of Christians in particular. It is an interdisciplinary, international, peer reviewed journal, serving the dissemination of new research on religious freedom and contains research articles, documentation, book reviews, academic news and other relevant items.  The IJRF is listed on the South African Department of Higher Education and Training “Approved list of South African journals” as effective from 1 January 2012. Manuscripts submitted for publication are assessed by a panel of referees and the decision to publish is dependent on their reports. The IJRF subscribes to the National Code of Best Practice in Editorial Discretion and Peer Review for South African Scholarly Journals. The IJRF is available as a paid print subscription, and released later as a free online version on 1 March and 1 September respectively (www.iirf.eu), as well as via SABINET.

Journal of Church and State:

Editorial Committee: Wallace L. Daniel, James A. Curry, Barry G. Hankins, Patricia Cornett, Charles McDaniel Issn: 0021969X Director: Christopher Marsh  Publisher:  J.M. Dawson Institute of Church-State Studies, Baylor University  Publication Place: Waco/ Texas

http://jcs.oxfordjournals.org/

The Journal of Church and State seeks to stimulate interest, dialogue, research, and publication in the broad area of religion and the state. JCS publishes constitutional, historical, philosophical, theological, and sociological studies on religion and the body politic in various countries and cultures of the world, including the United States.

Journal of Law and Religion

The Journal of Law and Religion was initiated in 1982 as a collaborative effort of the Council on Religion and Law and Hamline University School of Law.  However, it was just recently announced that it will now be headed up at Emory University’s Center on Law and Religion.  http://cslr.law.emory.edu/news/news-story/headline/journal-of-law-and-religion-moves-to-cslr-at-emory-1/

“We are pleased to serve as the new editorial home for the Journal,” says Professor John Witte, Jr., CSLR Director and new co-editor of the Journal. “As our center expands its geographical and topical reach, the time is ripe to welcome the Journal and make it the leading international journal in the field.”  With a refreshed editorial direction that invites the best scholarship from around the world, says Witte, articles will address broader legal issues in the world’s religions and cultures, including the place of law in religious canons, sacred texts and religious traditions; and the place of ritual and liturgy in the operation of state legal and political systems.  Witte says the Journal also “will create informed dialogue on vital topics such as the relationship of legal and religious authorities; legal and religious dimensions of family, charity, and education; religious legal systems and their relationships to secular law, and more. These topics resonate in the lives of people worldwide, and they are becoming flashpoints of major domestic and international conflict.”

Journal of Law, Religion and State:

ISSN: 2212-6465, Online ISSN: 2212-4810 DOI: 10.1163/221248112X639757 Volume 1, Issue 1, pages 1- 2 © 2012 by Koninklijke Brill N.V., Leiden, The Netherlands

http://booksandjournals.brillonline.com/content/10.1163/221248112×639757)

The Journal of Law, Religion and State is devoted to the study of the relations between law and religion in its various aspects, including those related to the role of religion in society, the relations between religion and state institutions, freedom of religion, legal aspects of religious traditions, the interaction between law, religion, and morality, and other issues at the junction between law, religion, and state. The journal proposes to publish articles written from the perspectives of such diverse disciplines as law, history, philosophy, theology, sociology, and political science. We especially welcome interdisciplinary studies.  Three out of the four articles presented the first issue of the Journal are based on papers delivered at a conference on religious education in a democratic state held at the Faculty of Law at Bar-Ilan University (Israel), on June 2010. Michael Walzer’s article is based on the keynote lecture, in which he maintains that a democratic state can legitimately mandate a core curriculum for all its citizens based on the premise that such education is vital for their participation in the democratic process. Mark Rosen argues that a liberal polity should grant significant autonomy to illiberal groups, especially in the realm of education. He bases his argument on Rawlsian premises, although Rawls himself concluded that political liberalism cannot accommodate perfectionist groups. On a similar note, Jeff Spinner-Halev contends that the state should accommodate to some extent also religions that are internally discriminatory. Spinner-Halev asks to distinguish between direct state support for such groups, which should be subject to strict standards, and indirect support, for which standards should be more lenient. Jonathan Fox’s article concerns the general topic of the relationship between religion and state in western countries. Basing his argument on an empirical study, Fox shows that the separation between religion and state in western democracies is not as absolute as perceived. The findings reinforce the need for a deeper analysis of the relationship between religion and state, especially in liberal democracies.

 Oxford Journal of Law and Religion

Editors-in-Chief W. Cole Durham, Malcolm Evans, Silvio Ferrari, Julian Rivers, Gerhard Robbers; Managing Editor Peter Petkoff

http://ojlr.oxfordjournals.org/

The Oxford Journal of Law and Religion publishes a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).

Religion & Human Rights

Editor-in-Chief: Dr. Jeroen Temperman, Associate Professor of Public International Law, Erasmus University Rotterdam, the Netherlands; Editorial Board: Professor Malcolm Evans, Professor of Public International Law, University of Bristol, UK;  Dr. Roja Fazaeli, Lecturer in Islamic Studies, School of Religions and Theology, Trinity College Dublin, Ireland; Dr. Nazila Ghanea, University Lecturer in International Human Rights Law, University of Oxford, UK, Founding Editor, Journal of Religion and Human Rights; Dr. Sylvie Langlaude, Lecturer in Law, School of Law, Queen’s University Belfast, UK

http://www.brill.com/religion-human-rights

Religion & Human Rights provides a unique academic forum for the discussion of issues which are of crucial importance and which have global reach. The Journal covers the interactions, conflicts and reconciliations between religions or beliefs on the one hand; and systems for the promotion and protection of human rights, international, regional and national, on the other.  The Journal tackles these issues fearlessly, and draws its materials from all relevant disciplines – theology, anthropology, history, international relations, human rights, religious studies, and many others – but with special emphasis on legal frameworks. It is an indispensable source for all those concerned with monitoring, studying, teaching, analysing or developing policies on the relationship between religion and human rights today.  The Journal of Religion & Human Rights is a peer-reviewed, academic journal, published by Martinus Nijhoff Publishers – the world’s leading imprint for international Human Rights books and periodicals. Nijhoff is an imprint of Brill in Leiden, The Netherlands, which is itself internationally renowned for the strength of its publishing programmes, inter alia, in the field of religious studies. The Journal is available online as well as in traditional form.

The post 6 Journals To Keep Current in Law and Religion appeared first on CCCC Blogs.

ROOMS OF THOUGHT ON LAW AND RELIGION

There are many of these “rooms” in the garden of which I speak.  There is a “history room,” “a theological room,” “a contemporary issues room,” “a political philosophy room,” on and on it goes.  As this discussion advances we can expect to find ourselves in these and other metaphorical rooms debating the wit and wisdom of sages, preachers, and scholars of today and yesterday.  For law and religion expands into every aspect of human life.  No matter how much we think we have entered a new room, so to speak, we will find that the room was already occupied and thought was given to its meaning for both law and religion and life on this planet.

The centre of this garden where all the paths originate, sits a chair upon a flat gray stone centrepiece.  There sits humankind.  Men and women sit and reflect on what makes a human being flourish.  The history of human life on this planet is a history of ideas and reflections of those who have gone before us about what makes human life flourish.  Those ideas and reflections were manifested in their life and actions.  As they walked from room to room they took what ideas and impressions seemed right and true in establishing a happy life.  Each generation must reflect on what the previous one had to say about the meaning of life.  That is our grand quest – the only quest that will assist us in the present and how we understand that quest will be further reflected and lived in the lives of those who come after us.  “All the world’s a stage,” noted Shakespeare, “And all the men and women merely players: They have their exits and their entrances.”[2]  The philosophers, the political leaders, the religious teachers, and the poets entered the stage and spoke what seemed right and true.  Today we look back with derision at their backward approaches – the same may be said of us in time to come.  The realization of the frailness of our attempt to understand the grand themes of life, which is beyond us, will be our greatest strength.

CONSCIENCE

Law and religion meet at the crossroads of the human conscience.  For millennia the dissonance of divided loyalties has impacted both.  In Robert Bolt’s play, “A Man For All Seasons,” we find an intriguing exchange between the main character Sir Thomas More and Cardinal Wolsey.

Cardinal Wolsey

The Cardinal devised a plan to enable the English King Henry VIII to obtain a divorce – and solicited More’s help.  More was a religious man.  He believed that the only authority for the granting of divorce was from the Roman Catholic Church.  Since the Pope had refused Henry’s request More was not going to get involved in Henry’s attempt to legitimate his divorce.  More rebuffed the Cardinal because of conscience.  An infuriated Wolsey stated:

              You’re a constant regret to me, Thomas.  If you could just see facts flat on, without that

               horrible moral squint; with just a little common sense, you could have been a statesman.

Sir Thomas More

More was eventually beheaded for his refusal to violate his religious convictions.  The annals of Western history are replete with such dramatic examples – we think of the Protestant, Roman Catholic, and Jewish stories of people who defied the law because of their religious belief.

Niqab

REMOVE THE NIQAB IN COURT?

The struggle between law and religion continues to this day.  Consider the recent case of N.S. who is a Muslim living in Canada.  She is a key witness in a sexual assault trial.  N.S. accuses two of her relatives of sexually abusing her as a young child.  She will only testify with her face covered by a niqab – a veil covering all of the face except for the eyes.  The accused men demand that N.S. remove the niqab so that they may cross examine her, otherwise, they claim, the trial will be unfair.  She maintains that to be forced to remove it will violate her religious freedom.[3]

DOES RELIGION MERIT SPECIAL PROTECTION IN THE LAW?

I find the study of law and religion captivating.  By joining me on a voyage of discovery traversing the intersection of law and religion in society perhaps you too will find it fascinating.  I am starting this journey by asking the question, “Does religion merit special protection of the law?”  Whatever our perspective of what ought to be the answer to that question the reality is the law does give religion special treatment.

The Charter[4] protects freedom of religion.  “[O]nly beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held” are protected under the Charter’s freedom of religion.[5]  Why?  What is it about that category of beliefs and practises falling under the rubric “religion” that justified differential treatment from the “non-religious” beliefs and practises?

Why, for example, should the law require workplace accommodation of holy day observance,^[6] where a day off for religious practise is protected but a day off to attend a political rally would not be; also consider religious garb in school where wearing a ceremonial dagger or knife in accordance with religious belief is protected^[7] but wearing a knife in school for other reasons would not be tolerated.

• Is it defensible for a modern liberal democratic society, such as Canada, to continue treating freedom of religion as being unique?  Or,
• Can religion’s protection be adequately addressed by more general protections of other rights such as equality or speech?
• Is religion’s protection an anachronism – a quirk of history that is no longer applicable in our multi-cultural society?

These are among the questions this blog will address as I investigate the rationale for extending specific rights-based protection to religion.

The post Welcome To A Discussion On Law and Religion appeared first on CCCC Blogs.