Let’s start by sorting out a couple of things about last week’s Supreme Court decision on Trinity Western University and its proposed law school.
The ruling is being widely portrayed as a victory for LGBTQ rights. It is not. Nobody has the right to do something they couldn’t do yesterday. The ruling is really about the expanding power of administrative law – in this case, the power of the provincial law societies to decide who is fit to be a lawyer and who is not.
A little background. TWU has been trying to set up the first religiously based law school in Canada. It’s been tough going. The law societies of Ontario and British Columbia decided in advance that they would refuse to license its graduates. The Supreme Court upheld that right. In essence, it said that the law societies’ right to bar these graduates from practice is more important than preserving TWU’s religious freedom.
“This decision turns the Charter on its head,” says Howard Anglin, executive director of the Canadian Constitution Foundation. “The point of the Charter is that we are a pluralist society and a pluralist society must accommodate difference. Trinity Western is an unpopular minority these days. The state must accept that they have a right to exist and to accommodate them.”
This ruling means that TWU’s law school may be dead in the water. That’s because the school requires students to sign a covenant agreeing to observe celibacy outside of heterosexual marriage, in accordance with traditional Christian values. The two law societies decided that this covenant would discriminate against same-sex married couples, and that this discrimination would fatally taint the law school and every student in it – so much so that they would be automatically unsuited to be lawyers.
The Supreme Court upheld the law societies’ powers in this case, by a margin of 7-2. But it had to turn itself into a pretzel to justify its decision. You get the feeling that the covenant is just an excuse, and a rather flimsy one, for barring law graduates who have received religious educations that the Supreme Court and the law societies disapprove of. In fact, lawyers (and judges) with religious beliefs are perfectly capable of separating their faith from their work. Graduates from religious U.S. law schools with similar faith convictions can be accredited in Canada without a fuss.
The dissenting opinion, argued by judges Suzanne Côté and Russell Brown, says that law societies should stick to assessing the competence of future lawyers, and forget about deciding which law schools can and can’t exist. Passing judgment on TWU’s religious requirements, they wrote, is clearly a violation of freedom of religion. If anything the decision is a blow against diversity. “The state and state actors [such as law societies] – not private institutions like TWU – are constitutionally bound to accommodate difference in order to foster pluralism in public life … Canadians are permitted to hold different sets of values.”
Most people I know agree with the Supreme Court majority in this case. They should think again, Mr. Anglin argues. That’s because this decision is a victory for the ever-expanding power of the administrative state – the human rights tribunals and licensing commission, and other quasi-judicial bodies that play a bigger and bigger role in our lives. The effect of this decision “is to water down our Charter protections” – just the opposite of the intent.
The decision is also yet another giant step in the marginalization of conservative Christians, who are becoming an ever more endangered species in public life. We’ve already seen the Trudeau government’s efforts to stamp out wrongthink by withholding summer jobs funds from groups that refuse to sign its “attestation” saying they respect abortion rights. This is secular bigotry – liberal intolerance – at its worst. We’ve already seen debates around the removal of funding from religiously based institutions that are constrained by their founding principles from offering assisted death.
And we will see more. The Salvation Army, which used to run some of the best hospitals in Canada, has already been driven from the medical field partly because of its Christian beliefs. How long will it be before its superb palliative care hospital in Toronto also goes out of business because it refuses to euthanize its patients?
If you’re a nonbeliever (as I am), maybe you think these things are no big deal. But look at it this way. This ruling doesn’t enhance the spread of tolerance. Its effect is to punish minorities and narrow the range of diversity. By denying people the right to congregate voluntarily in a small, private institution and practise their beliefs as they see fit, it pushes them to the margins. Is this really our idea of a tolerant, pluralistic society? I don’t think so.