Moral Values and the Law

2018 saw numerous legal and policy developments of concern to Christians. For example, the federal government required organizations, including churches and religious groups, to attest that their “core mandate…respect[s]” certain values and rights, including access to abortion, in order to participate in a taxpayer-funded grant program (the requirement has since been revised, but some concerns remain). In addition, the Supreme Court of Canada ruled that law societies could refuse to accredit a Christian law school at Trinity Western University (TWU) because it required students to abstain from sexual intimacy outside of traditional marriage.

Freedom of religion is guaranteed under Canada’s Constitution and is clearly engaged in these and other current cases; however, it appears that decisionmakers view this freedom as secondary to (what they perceive to be) higher, and more important, social goods.

Those goods – or “fundamental shared values” as the Supreme Court described them in the TWU case – are often said to include equality, autonomy, and diversity (among others), and, properly understood, they are undeniably important in a free and democratic society. But are they the supreme goods? And how exactly are these terms being interpreted?

“Equality”, for example, can mean many different things in different contexts, something that the two dissenting judges emphasized in the TWU case. Whose conception of equality ought to triumph, and why should it prevail as opposed to other virtues and public goods?

These questions notwithstanding, the Supreme Court has prioritized equality as one of the goods which “the state always has a legitimate interest in protecting and promoting”; the implication, it seems, is that “minor limits on religious freedom are often an unavoidable reality” (see TWU, paras 41 and 100). In doing so, has the Supreme Court of Canada created a new moral orthodoxy (aka a civic religion) centred on its own conception of equality and other “Charter values”?

In the TWU case, for example, it was undisputed that the university complied with all applicable laws, and that its graduates would be competent, ethical, and qualified lawyers. Yet a majority of the Supreme Court concluded that TWU’s law school could be rejected, in part because TWU’s (religiously-based) practices were out of step with publicly accepted “values”.

Canada’s commitment to a free, diverse, and pluralistic society is premised on an understanding that Canadians ought to be, as the dissenting judges said in TWU, “permitted to hold different sets of values.” This understanding arose, in part, to accommodate religious minorities who argued that they felt compelled by Canadian authorities to conform to “religious values rooted in Christian morality” (See, for example, 1987’s Big M Drug Mart case).

However, the pendulum may have swung too far, and the fundamental promise underlying freedom of religion – that mainstream views of what is “good and true” will not be imposed on religious minorities who believe differently – now seems hollow.  Presently, it is Christians and other Canadians with traditional moral beliefs who may be at risk from the threat of “the tyranny of the majority” which was condemned by the Supreme Court in Big M Drug Mart.

If state authorities are truly committed to a liberal understanding of freedom, then Christianity must be respected as part of Canada’s rich pluralistic tapestry, and those with traditional moral beliefs should be accommodated in public and vocational life. If not, then it is time for an honest acknowledgment that certain morals will trump others, and a conversation amongst Canadians about whose morality should be prioritized, and why.

Derek Ross is Executive Director & General Counsel of Christian Legal Fellowship (CLF), Canada’s national association of Christian lawyers, and was co-counsel to CLF as an intervener in the TWU case at the Supreme Court of Canada.  A previous version of this article appeared in The Christian Courier.