Supreme Court's TWU decision: An illiberal outcome

The below op-ed, written by CLF's Executive Director & General Counsel Derek Ross, was first published in The Lawyer's Daily on June 25, 2018. Derek Ross represented CLF as an intervener at the Supreme Court of Canada in the TWU appeals. The views expressed are his own.

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The Supreme Court of Canada’s Trinity Western decision is being celebrated by many as a win for diversity. In truth, the ‘diversity’ advanced by the majority’s reasons is not authentic diversity at all. 

The decision doesn’t mean that Trinity Western University (TWU) will now open a law school which satisfies the Law Societies’ ‘diversity’ expectations. Indeed, the Ontario regulator suggested in its factum that TWU never could, so long as it wished to maintain a “distinctly Christian” environment (even if its provisions on marriage/sexuality were removed from the school’s Community Covenant).  

What the decision means is that there will be no TWU law school, at least not for the foreseeable future. The Supreme Court hasn’t created any new or additional opportunities for anyone—it has only removed the opportunity for students, who wish to do so, to voluntarily associate at TWU and “study law in an educational community which reflects their religious beliefs”. 

Some might think this is a good outcome. But diversity is not achieved, as the dissent explained, “by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square.” Nor is it achieved by forcing minority communities to alter their defining characteristics to ensure that all people will want to join them. That an institution serves primarily people who affirm its mission and beliefs does not mean that it does so at the expense of others.

The decision is also a loss for a robust understanding of Charter rights, which exist to protect religious minorities from majoritarian values, not to force conformance with those values (as the dissent observed). The majority construed religious freedom very narrowly, distinguishing between “preferred” and “necessary” exercises: infringements of the former are “minor”; infringements of the latter more serious. 

In addition to inevitably entangling the Court in theological interpretation—something it has repeatedly said it must not do—distinguishing between “preferred” and “necessary” practices hollows out the Charter’s protections. The Charter does not only, or even primarily, protect “mandatory or perceived-as mandatory” exercises (see Amselem). It guarantees the freedom to “entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”

The TWU decision also presents challenges for the rule of law. Others have raised concerns that the ruling grants administrative bodies significant leeway to disregard circumscribed statutory language in pursuit of amorphous “values”. The decision further undermines the doctrine of stare decisis. The majority did not even attempt to explain why they weren’t bound by the TWU 2001 decision, in which the Supreme Court affirmed TWU’s Community Covenant. This should give pause to all, including those who celebrate the 2018 decision. If TWU 2001 can be so easily dismissed, so too can TWU 2018.

The avoidance of discrimination is an important and laudable objective, but moral disagreement —especially on a matter such as the meaning of marriage—is not tantamount to discrimination. As the dissent stressed, “Canadians are permitted to hold different sets of values,” even when “one person’s values may be another person’s anathema.” The state’s role is not to obliterate the existence of conflicting moral commitments—even those which are deeply contested and which go to the core of our sense of identity and most cherished conceptions. The state’s role is to allow for difference, not to mandate approval or acceptance. As Justices Côté and Brown affirmed:

Pluralism, and the religious accommodation necessary to secure it, is inherently valuable. In a country whose people sometimes harbour conflicting moral values that cannot be reconciled to a single conception of how one should live life, there is wisdom in the idea that the public sphere is for all to share, even where beliefs differ.
— Justices Côté and Brown (dissenting)

The majority’s reasons, like the Law Societies’ arguments, repeatedly referred to the importance of “promoting diversity within the bar”, yet they overlooked the value of promoting religious diversity. A religious law school would contribute to the richness of a diverse bar, and make it more reflective of the society it serves, by encouraging religious minorities to enter the profession.

The law societies did not dispute that TWU’s law graduates would be qualified, competent, and ethical. Denying those students equal admission to the profession solely because of their connection with a distinctly religious university is unjust. As the dissent warned, “the imposition of judicially preferred ‘values’ to limit constitutionally protected rights, including the right to hold other values” is both “troubling”, and “risks illiberal outcomes”.   

While many have framed this case as a clash between religious freedom and equality rights, it needn’t be so. Charter rights are not competitors in a zero-sum game. They can be fully exercised in co-existence, as the Supreme Court recognized in TWU 2001. Since that time, both equality rights and religious freedom have enjoyed expanding interpretations: in tandem, not competition. In the very context of expanding equality rights on the grounds of sexual orientation, religious freedom has been strongly affirmed

The Supreme Court has previously found ways to respect and accommodate both sets of rights. It is profoundly disappointing that, in last week’s ruling, a majority of the Court departed from this approach, and reached an illiberal outcome.


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