Gay rights trump religious rights in Canada today, it is that simple. At least in an Ontario Superior Court they do.
On Thursday, three judges of that court - Frank Marrocco, Edward Then and Ian Nordheimer - agreed with Trinity Western University’s assertion that their Charter-guaranteed-right to religious freedom was infringed by the Law Society of Upper Canada but according to the court, infringing of that right to religious freedom is okay due to a “balancing” of rights.
Trinity Western, or TWU, is trying to establish a law school but has met with resistance from law societies across Canada over allegations that the school and its Community Covenant are discriminatory. Among other things, the school asks all students to sign a pledge to abstain from: stealing, cheating, gossip and yes, sex outside of marriage. How does the evangelical Christian school define marriage? They define it as being between one man and one woman.
That is what makes the school ineligible to be accredited by the law societies according to the critics. When The Law Society of Upper Canada said they would not allow TWU students to article or be called to the bar in Ontario, the school went to court claiming discrimination.
The Law Society of Upper Canada is not a government body but is tasked by the government, through legislation, with determining who can practice law in the province. The school argued their religious freedom was being infringed and the court agreed.
“All of that said, we are nonetheless satisfied that the decision of the respondent does amount to an infringement of the applicants’ rights to freedom of religion,” the decision reads.
So how then did the court find against TWU?
They turned legal precedent on its head and cited a change in “attitudes”.
Not law, but attitudes.
In 2001 the Supreme Court ruled in favour of TWU in a very similar case after the British Columbia College of Teachers had denied the school permission to open a teacher’s college on the same grounds.
In its 2001 ruling the Supreme Court stated, “It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities.”
Yet that is what Ontario’s court has done.
In their decision Justices Marracco, Then and Nordheimer have essentially said that TWU can open a law school, the fact that their graduates will be prevented from “fully participating in public activities” is of no concern to them.
To arrive at their decision the justices don’t focus so much on the law as they do on ratio of law school applications to positions and on the changing attitudes towards homosexuality in Canadian society.
“The attitudes of the general population towards such issues changes almost daily. Certainly those attitudes, as they relate to the issues that are raised in this case, especially towards LGBTQ persons, have changed considerably in the last fifteen years. As such, this area of law is probably the most fluid of any area of law in terms of the appropriate application of legal principles and the context in which they come to be applied,” the decision reads.
This of course is not a statement about law or Charter rights, it is about feelings – not something the court is supposed to base its decisions on and yet it does.
This case is about religious rights vs. gays rights and clearly, based on changing attitudes, as opposed to changing law; gay rights have the upper hand at this point.
It’s not supposed to be this way. Rights are supposed to be balanced. In the 1994 case, often cited by the Supreme Court Dagenais v. Canadian Broadcasting Corp. the court warned against giving rights a hierarchical order.
“A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict . . . Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.”
This decision shows no respect for freedom of religion. Will it really harm gay and lesbian lawyers if a Christian school exists that disagrees with them? Is this the new pluralism, you can have any belief as long as it is the right one approved by the state?
The court claims their decision will not stop TWU from opening a law school but without graduates being able to practice law the school will be useless.
This is part of an ongoing trend in society that says you can hold beliefs but only in private. It stems from a worldview that reduces freedom of religion to a freedom to worship. Religion in this context is a private matter for your home and house of worship and is never to be brought out into the public square.
This decision says freedom of religion no longer matters. Thankfully the school is appealing but given the changing “attitudes” that guided the Ontario decision, I’m not hopeful that a different result will come about.