June 18, 2018 (LifeSiteNews) – On Friday, June 15, the Supreme Court of Canada threw out a quarter-century of legal precedent on religious liberty by deciding, by a margin of 7-2, that it was “proportionate and reasonable” for the law societies of British Columbia and Ontario to refuse accreditation to any law students coming from Trinity Western University due to TWU’s much-maligned “community covenant.” The covenant, which students who choose to attend Trinity agree to, is a lifestyle policy that asks students to adhere to biblical codes of conduct, including the restriction of sexual activity to heterosexual marriage.
It was this covenant—again, a code of conduct for a small, privately-funded evangelical university that nobody has to attend if they don’t want to—that led law societies to claim that students coming from a TWU law school would not be able to escape their particular bias, and thus should not be accredited. Their presumption, apparently, is that people who have a specific set of religious beliefs are incapable of also reading the law as it is written, and that only those who heartily endorse every jot and tittle of what is legally permitted can function as lawyers. Ironically, the Court even managed to claim that their decision was being made as a nod to diversity, when their decision actually struck a devastating blow to diversity in the public square.
In fact, Chris Selley, a rather crotchety atheist over at the National Post, said as much in a column where he noted that the decision instead struck a blow to religious liberty and overturned decades of legal consensus. “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,” he wrote, “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.”
Further, Selley noted, every single justice who ruled against Trinity admitted that TWU’s religious freedoms were being violated, but brushed that fact off as justified, citing the never-defined, vague concept of “charter values” as justification—an extraordinarily dangerous precedent that will surely be used by others to silence those they disagree with in the future. They dismissed the violation of religious liberty as one of “minor significance,” something strongly rebutted in a blistering dissent written by justices Suzanne Cote and Russell Brown.
“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 is public life,” the dissenting justices 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.” Further, they noted, the idea of “charter values”—again, an undefined concept—is “entirely the product of idiosyncrasies of the judicial mind that pronounces them to be so.” In other words? “Charter values” will be used to silence and censure whichever group that a judge decides is deserving of such treatment.
As Ray Pennings of Cardus also noted in the National Post, all religious communities will be impacted by this decision, for “if the state, through the courts and its other agents, can reach through the gates of tiny Trinity Western University to dictate its community relations with its students and staff, what is to stop it from doing the same thing in the future, wherever and whenever it wishes? Why would it want to stop?” The unavoidable answers to these questions, again, are sobering: Nothing can stop the courts now that they have dispensed with decades of precedent protecting religious liberty, and they obviously do not want to be burdened with the wisdom of previous justices. As a result, Pennings says bluntly, faith is now essentially “banned from public spaces.”
The implications of this case, says Andre Schutten, one of the legal counsels for the Association for Reformed Political Action (ARPA) who addressed the court as an intervenor on behalf of TWU, are “deep and troubling.” In fact, he told me, “it seems to me that it will be very difficult, despite the fact that the Supreme Court has limited this decision to the legal profession, to not expect that the vast majority of professionals, academics, the media, politicians, and other cultural forces to apply this decision to other Christian schools (post-secondary, secondary, even elementary). So this has implications for our independent Christian schools and whether these schools can have codes of conduct that are informed by biblical standards of morality. This decision also has implications for Christians as professionals—not just lawyers, but also doctors, nurses, social workers, and others. The basic message of the Supreme Court to me as a Christian professional is that I can be a Christian all I want within the four walls of my church but once I enter the public square, Christianity and the expression of it, including the moral commitments I hold myself to, are not welcome to be publicly shared or publicly proclaimed.”
Basically, Schutten said, this case resulted in a secular Court imposing “the morality of the State on all of Canada.” While it seems “like it is LGBT equality rights versus evangelical Christian religious rights…really this decision, in my opinion, is a loss for all Canadians (gay, straight, or otherwise.) It’s a total ‘gutting’ (to quote law professor Dwight Newman) of religious freedom for all Canadians, and a remarkable erosion of associational rights for all Canadians. I am most troubled by how much the court forced a private institution to justify its own existence in the face of their preferences and the moral judgements of the state bureaucracy. That should concern all Canadians.”
One of the main concerns Schutten laid out is the fact that this case cannot be appealed: The Supreme Court of Canada is the highest legal authority in the land, and they have just decided to trash decades of precedent, break with centuries of Canadian history, and chart a new course. “This is a big turning point in religious freedom law,” Schutten noted. “We can hope that this decision is limited by the particular fact scenario that it comes out of (i.e. that it is limited only to the legal profession in the development of a law school). However, the implications have the potential to be very, very serious and very far-reaching.” Once this decision is paired with the very welcome Wall decision last month, where the Court defended churches as independent institutions, it is clear, says Schutten, that the Court sees religion as something that should be contained within the walls of the churches.
As I noted in my 2016 book The Culture War, what we see taking place across the West is a legal realignment. Following the Sexual Revolution, the culture underwent massive changes—and now, the legal system is following suit, falling into line with the new cultural norms and the new moralities. This is not the “progress” that enemies of religious freedom like to talk about—it is an absolute breaking from the past and all of those who went before us. One Canadian trans activist—a middle-aged biological man badly impersonating a woman—has already been trumpeting the TWU case around Twitter as another example of the fact that his critics now function outside the boundaries of the law when they refuse to address him by his “preferred pronoun.” In his exact words: “This newly settled law is the equivalent of the replacements to those old laws. Your views are those of an oppressor. Our new law protects from oppressors like you.”
There is one final thing to note about the TWU case: The fact that four of the five judges who either wrote or signed onto the majority decision were appointed by Prime Minister Stephen Harper. Andre Schutten put it bluntly: “TWU is Harper’s (and his advisory team’s) ‘conservative’ legacy. To be clear, the TWU decision does not just upset social conservatives (about 40% of the Big Blue Tent.) It infuriates libertarians (about 30% of the conservative movement, judging by the preliminary results of Bernier’s leadership run) and it genuinely upsets constitutional conservatives.” Canada’s castrated version of big-C conservatism, championed by men like Harper who focused only on balancing the books while refusing, through cowardice or political expediency, to actually take advantage of any opportunity to create lasting change, has been proven to be utterly hollow. Those tax breaks might have been nice while they lasted, but religious liberty has been struck a staggering blow–and we can thank Stephen Harper and the rest of his circle, who appointed justices with such utter disregard for fundamental freedoms.
To buttress that point, consider the consistent attacks on freedom of speech by courts across the country in light of the fact that Harper appointed 600 of the 840 full-time federally appointed judges (as of 2016). Additionally, when Canada’s Supreme Court decided unanimously to legalize euthanasia, six of the nine justices were also appointed by Stephen Harper—something that those who like to blame Trudeau for euthanasia like to forget. This is important to note, because if Canada’s Conservative politicians continue to laud the Harper legacy as something to aspire to and imitate, Canada’s Christian communities can expect the erosion of our fundamental freedoms to continue even further. As the TWU case makes abundantly clear, the enemies of those fundamental freedoms have been given all the weapons they need to make themselves very, very dangerous.