Supreme Court’s decision on TWU law school reveals flawed view of religion

Anyone viewing this comment will likely have read earlier reports about the Supreme Court of Canada’s June 15 decision regarding Trinity Western University’s proposed law school.

For anyone who hasn’t, I suggest the case comment by Christian Legal Fellowship executive director Derek Ross: A missed opportunity to affirm true diversity, which begins:

In two companion judgments released today (British Columbia; Ontario), each with four separately written opinions, the Supreme Court of Canada was split on whether it was reasonable for the Law Societies of Ontario and British Columbia to deny approval to Trinity Western University’s proposed law school based on its Community Covenant and the traditional view of marriage expressed in it.

A majority of five judges (Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ) concluded that the Law Societies’ decisions were reasonable, and upheld them accordingly. McLachlin CJC and Rowe J each agreed in the outcome, but for different reasons, set out in separate opinions. In a strongly worded dissent, Justices Côté and Brown disagreed, stating:

In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. In our view, only a decision to accredit TWU’s proposed law school would reflect a proportionate balancing of Charter rights and the statutory objectives which the [Law Society] sought to pursue.

Anna Su, an assistant professor at the University of Toronto Faculty of Law, made a crucial point about the decision in her CBC News opinion piece June 18:

[T]he Court gives us an impoverished characterization of religion and religious practice. . . .

Beyond the legalese that underlies it, the Court has painted religion to be a matter of simple choice, dismissively describing an educational institution with a mandatory code of conduct as simply “an optimal religious learning environment.” It also held that a “mandatory covenant is not absolutely required to study law in a Christian environment.” After all, the members of the TWU community, according to the Court, remain free to act according to their beliefs. . . .

But the fact that the Court even deemed it proper to make a pronouncement on what is or is not absolutely required by a religion is baffling. Since 2004, it has consistently held that courts are not competent to decide matters of religious doctrine. In fact, as recent as three weeks ago, in Highwood Congregation v.Wall, in refusing to review an internal church membership dispute, it held that courts are not competent to answer questions of theology.

And yet, by stating that a “mandatory covenant is not absolutely required” – as it did in its TWU decision – it is substituting its own judgment in place of that of the religious community’s, in clear contravention to its own past rulings.

If religion is mere preference, and for as long as the Court can reason that one can still believe within the confines of one’s home or inside a church anyway, the Charter guarantee of freedom of religion means nothing. It means nothing to believers and their communities, and it should mean nothing to Canadian society at large.

For her full comment go here. (For links to several other good pieces go to the end of this comment.)

Generous response

Trinity Western’s response to the Supreme Court ruling has been measured and generous. For example, speaking on the CBC’s Early Edition, immediately after the ruling was released,  executive director of the proposed law school Earl Phillips said:

We’re disappointed that the Supreme Court does not think there is room in Canada for a small Christian university, that holds to traditional Christian values, to open a law school. . . .

Host Stephen Quinn asked:

How does it feel knowing that so many of your colleagues across the country and the organizations that represent them disagree with the idea of your law school opening under the TWU covenant?

Phillips responded:

We think that Canadian diversity has to allow for difference; it even has to allow for disagreement. We then need to work together; how are we going to live and work productively and peaceably together, despite those differences? That’s how Canadian diversity will be our strength. That’s what the rich mosaic in Canada that we’ve always prided ourselves on demands. So we’re going to have disagreement; we have to now work on how do we live peaceably together with that disagreement. . . .

Quinn:

The community standard, should it not be the law of the land?

Phillips:

The law of the land has always accepted that faith communities, like Trinity Western University, should be allowed to practice and exercise their faith in all respects. This decision from the court, as I read it quickly this morning, affirms that . . .

Eight of the nine judges recognize that the religious freedom here has been restricted by these decisions of the Law Societies. But then they balance those. But we’ve still been affirmed in the right to have a faith community that operates in accordance with our beliefs.

A place at the table? 

I certainly respect the university’s approach, which shows great maturity. But I also recall TWU president Bob Kuhn’s words as he spoke before a House of Commons committee studying Islamophobia and “systemic racism and religious discrimination” last fall. Here is a portion:

This committee has asked for constructive suggestions for implementation by the federal government that would reduce or eliminate systemic racism and religious discrimination. Let me make three.

This is recommendation number one. Inevitably, if we are to retain the sought-after, balanced, multicultural, multireligious mosaic, religious discrimination must continue to be the subject of careful study, civil discourse, and creativity in resolution of conflict. It is my submission that the first step is to promote, encourage and engage in meaningful opportunities to pursue dialogue, relationships and educated understanding. The government can and should lead by example. I believe it would be prudent and positive to ensure consultation with religious organizations in order to understand the perspective of religious people in Canada. In this respect, the duty to consult would be appropriate. This would go some distance to bridging the increasing divide between the secular and religious communities. It is when people in positions of authority or power do not listen to, consult with or show respect for those who hold strong religious views that religious discrimination arises.

The second recommendation is, when considering the impact of decisions on religious minorities, the concept of accommodation should be employed. If our country is to build a meaningful and genuine pluralism, its leadership must be committed to accommodation of religious differences, rather than simply adopting and enforcing secular majority opinions.

The third recommendation is that the appointment of an ombudsperson be considered. Assisting in the resolution of differences and disputes between governments, authorities, religious institutions, and individuals, it would provide an opportunity for greater understanding, dialogue, and mediation, and the advent of creative resolution alternatives.

In conclusion, Trinity Western and its staff, students and faculty experience significant financial, emotional and systemic discrimination. It is getting worse, and it should not be.

For many years the Christian community has made a strong case – sometimes arguing against entrenched views within the Christian community as well as in the broader community – that all we are asking for is ‘a seat at the table of pluralism.’

Brian Stiller (former president of the Evangelical Fellowship of Canada and currently global ambassador for the World Evangelical Alliance) wrote Reminding those who debunk pluralism what it really is:

Pluralism does not mean a mishmash of beliefs. It is the forum in which ideas are debated and hashed out. In our public forums (media, government, education, etc.) the opportunity is available for a plurality of ideas to compete for influence. . . .

In North America – for much of the 20^th Century – Evangelical Christians were silent on one primary count: public sphere matters were seen as outside our concerns. We stayed inside our religious community and let others run the world.

The tide turned. Slam bam, we faced public views and policies that threatened our freedoms. But because we hadn’t been at the table, we had no voice. Pluralism had been offered but since we had not taken up the opportunity, other prevailing views won out.

Imagine a table of debate and decision-making, be it for public sentiment, governmental policy, educational plans, environmental initiatives or zoning by laws. Whose voice gets heard? Those at the table. And why are they there? Because it matters to them: they know what they want, have developed the logic of their argument, have been trained to speak in that forum and have taken the trouble to get organized and appear.

Those are the rules that Trinity Western has been playing by; the university has been a very positive and productive member of the broader community. The question is whether playing by the rules can work for those institutions which by their very existence question prevailing certitudes.

John Stackhouse (an astute thinker and writer, formerly at Regent College, now at Crandall University in Moncton, New Brunswick) stated the situation succinctly, in a conversation with Lorna Dueck on Context June 18.

When the Prime Minster pushed that Canada Summer Jobs thing, I thought, good somebody’s finally gone too far, and it’ll give the Supreme Court room to kind of back off. . . I really hoped they’d back off and say, you know we really do have to accommodate each other. Canada’s a place of multiculturalism, officially. That only means something if you’re accommodating important differences.

There was never any worry that Trinity Western graduates wouldn’t be competent lawyers, nobody’s ever suggested they wouldn’t do a great job. It’s all been about the principle of the thing. Well, which principle?

The principle should have been accommodation of legitimate difference with no real harm to anyone else, and instead, this strikes me as simply ideology. We don’t like your views, and we’re going to let other people discriminate against you.

There has always been a danger in playing by the rules. It will only work, in the end, if the rules are applied fairly. Our place at the table of pluralism is far from assured.

Wise as serpents, innocent as doves

Trinity Western has done all the right things, only to be denied justice in the supreme court of the land. Leaders of the university are looking into the decision carefully, and there may be more light than seems apparent at first glance.

But for the moment, we must grapple with the fact that the Trinity Western decision may be the face of the future. As André Schutten – a lawyer with ARPA Canada who made oral arguments as an intervenor during the hearings – said:

[W]ith this decision today, it seems the Supreme Court has made it clear that you can be a Christian all you want within the four walls of your church but as soon as you want to apply that faith in a community, outside the institutional church, all bets are off. You’ve got to conform to the new secular values.

The key point, however, is that Christians do not look to governments or courts for direction, when push comes to shove. The leaders of Trinity Western have been faithful thus far; we can pray and support them as they move ahead in faith.

Earl Phillips put the situation in perspective when he spoke to Karen Stiller of Faith Today.

Stiller asked:

For the Canadian Christians, or of any faith really, who are kind of reeling right now, trying to understand this, and are concerned about religious freedom in Canada, what encouragement would you give them right now?

Phillips responded:

I’d give them the encouragement I got from my wife by text message this morning. She said, “We are struck down but not destroyed.”

We take a blow – and this is a blow, and it does hurt for our plans and our great hopes for a law school here –  but I really think we know who we serve. We can trust in God and we need to go forward and make sure that everything we’re doing is really God-honouring and is consistent with our faith. We need to do that, and continue to be there. We need to be, as one person has referred to it, a faithful presence in society.

Go here for the full podcast.

The Evangelical Fellowship of Canada will host a webinar on the Trinity Western decision June 27. Expert guests will share their thoughts, and then will field questions live: Bruce J. Clemenger (president, Evangelical Fellowship of Canada); Albertos Polizogopoulos (legal co-counsel, EFC); Justin Cooper (executive director, Christian Higher Education Canada).

Here are a few other articles and comments I found helpful:

• Peter Stockland: Trinity Western loses (Convivium)
• Chris Selley: Supreme Court strikes a blow against religious freedom with Trinity Western decision (National Post)
• Ray Pennings: The Supreme Court decides that faith is now banned from Canada’s public spaces (National Post)
• Evangelical Fellowship of Canada: Supreme Court decision in TWU case disappointing
• Brian Platt: What Does Trinity Western’s Supreme Court loss mean for the summer jobs attestation? (Vancouver Sun)