Religious freedom smacked down
TOP COURT RULING ON PROPOSED LAW SCHOOL HELPS NO ONE
The Supreme Court of Canada struck a brave blow on Friday for LGBTQ students who would be compelled to attend a proposed law school at Trinity Western University — a small, private, evangelical Christian school in Langley, B.C., whose “community covenant” prohibits sexual relations except among married men and women.
That is to say, they struck a blow for nobody.
“Students who do not agree with the religious practices do not need to attend,” former chief justice Beverley McLachlin wrote. “But if they want to attend, for whatever reason, and agree to the practices required of students, it is difficult to speak of compulsion.”
McLachlin was nevertheless part of the 7-2 majority upholding the British Columbia and Ontario law societies’ decision not to accredit Trinity’s graduates. The societies, as delegated wielders of government power, argued doing so would effectively grant the government’s imprimatur to the covenant and erect “inequitable barriers on entry to the profession,” There would be 60 more law school places available, and some would effectively be unavailable to LGBTQ students thanks to the covenant.
The court decided that was a reasonable application of the law societies’ mandates to oversee the legal profession.
And in so ruling they helped … nobody. Again. Indeed, they might just have killed Trinity Law before it ever admits a student — though Earl Phillips, head of the program, says he suspects there are “many options” available other than the obvious ones: abandoning either the covenant or the law school.
The implications of the ruling are potentially massive. “Canada has a tradition dating back at least four centuries of religious schools which are established to allow people to study at institutions that reflect their faith and their practices,” McLachlin wrote in her concurrence. Many have always admitted students of other faiths (or none), on the condition they respect institutional mores. Today many such institutions receive public money to teach elementary and secondary students.
Yet the highest court in the land has decided it’s fine for a government actor to discriminate against grown men and women who want to assemble freely in an entirely private religious institution to learn the law.
It did so in a decision that’s sloppily argued and full of contradictions. Notably, it credits the law societies’ quest for a diverse legal profession without ever considering that an evangelical Christian law school would obviously contribute to that goal. And it veers wildly off the beaten path in an effort to downplay the obvious impingement on the Trinity Western community’s religious freedoms.
Canadian courts have long protected religious practices they believe to be sincerely held, not necessarily essential or commanded by scripture. The majority here turned that on its head.
“The limitation in this case is of minor significance because a mandatory covenant is … not absolutely required for the religious practice at issue: namely, to study law in a Christian learning environment in which people follow certain religious rules of conduct,” they wrote.
As evidence, they cited bugger all.
It’s reminiscent of the court’s appallingly blasé decision in the Ktunaxa Nation case, where the majority breezily decreed that the objects of religious belief — in that case, the land inhabited by a spirit bear revered by a First Nation in British Columbia — were not owed the same protection as the beliefs themselves. Neither outcome bodes well for future religious freedom appellants.
“The focus … on what is ‘required’ by religion as all that will receive meaningful protection has pretty much gutted freedom of religion in Canada for future cases,” University of Saskatchewan constitutional lawyer Dwight Newman wrote on Twitter. Mary Anne Waldron, emeritus professor of law at the University of Victoria, agrees. She calls the decision “almost embarrassing.”
Perhaps most galling, the justices gave more deference to the law societies than they would have to the governments that grant them their authority: they tested their actions not against the Trinity community’s actual charter rights but against amorphous “Charter values” that ostensibly adequately informed the law societies’ decisions.
It’s a controversial approach that courts have increasingly (though inconsistently) taken in considering the actions of tribunals and other entities at arm’s length from government — but here it’s being used against one of Canadians’ most fundamental freedoms.
Justices Suzanne Côté and Russell Brown tore it all to shreds in a brilliant, scorching dissent.
“The state and state actors (like the law societies) — not private institutions like TWU — are constitutionally bound to accommodate difference in order to foster pluralism in public life,” they wrote. “Equating approval (of Trinity Law) to condonation (of the covenant) turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors.” And they dismissed “charter values” as “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.”
“Canadians are permitted to hold different sets of values,” they reminded us. Alas, two justices’ common sense are no help against the other seven — not to Trinity, and not to anyone else.
“The effect of the decision is to water down Charter protections; it will make it harder for individuals to challenge bureaucratic violations of their fundamental rights,” said Howard Anglin, executive director of the Canadian Constitution Foundation.
“The right at stake in this case was freedom of religion, but it could just as easily be freedom of speech or expression in a future case.”