A missed opportunity to affirm true diversity:
Case comment on Trinity Western

Derek Ross
June 15, 2018

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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.

For a summary of the decisions, please see Christian Legal Fellowship’s explanation here.

In my view, the reasoning employed by the majority to decide in favour of the law societies is troubling in many respects. This article identifies six areas in particular that merit pause, criticism, and further reflection moving forward.

1. A Diminished Understanding of Religion

The majority adopted a diminished understanding of religion in its analysis. They distinguished between religious ‘preferences’ and religious ‘requirements’, and suggested that differing levels of protection be afforded to each. The majority concluded that, because studying law in a religious environment was “preferred (rather than necessary) for [students’] spiritual growth”, the religious infringement in this case was “minor”. There are several problems with this approach.

First, for a court to ascertain whether a religious practice is ‘preferable’ or ‘necessary’, it would have to assess the merits of religious doctrine. Yet the Supreme Court has repeatedly held—as recently as three weeks ago—that “courts should not decide matters of religious dogma” and that “judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion”.

One might counter that the Court was simply accepting the statements of individual members of the community, and not weighing in on doctrinal matters. However, none of these members explicitly stated that the Community Covenant was simply a ‘preference’—they said their preference was to attend a law school at TWU over a secular law school. This does not mean that the Community Covenant was unimportant to the religious exercises in question—to the contrary, as the dissenting justices observed, it was the means by which members of the community expressed their religious beliefs, and it allowed them “to associate with one another in order to study law in an educational community which reflects their religious beliefs.”

That a religious practice is not always 'necessary' does not mean it is insignificant. For example, a Christian may be willing to pray alone, but would certainly prefer to also pray in community with others. From that Christian's perspective, communal prayer is not absolutely ‘necessary’ for her salvation, but it would be absurd to deny her the ability to engage in group prayer on the basis that she could 'make do' without it.

And here lies the second, and more significant, problem with this approach. Believers generally do not split their religious exercises into those that are ‘preferred’ and those that are ‘necessary’. Christians, for example, do not pray, worship, attend church, study the Bible, serve the poor, and love their neighbours because they ‘have to’. Rather, they do so out of a voluntary expression of their desire to honour their God and to demonstrate His love. Suggesting that some practices are merely ‘preferential’—as if they are luxuries only exercised to enjoy ‘optimal’ conditions—betrays a severe lack of understanding on the part of the majority justices as to how certain religions operate, and how many believers understand their faith. As the Supreme Court recognized in Amselem“[i]t is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.”

The majority's approach is troubling for another reason—by affording a sliding scale of protection between ‘necessary’ practices and ‘preferential’ ones, they risk hollowing out the protection guaranteed by s. 2(a) of the Charter. The majority suggested that a religious exercise may be less protected the further an infringement “falls short of ‘forced apostasy’”. This is a far cry from the robust, seminal definition of religious freedom set out in Big M Drug Mart: “the right 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 Charter protects Canadians' religious freedom from far more than "forced apostasy".

2. A departure from precedent

Very little discussion was afforded to the Supreme Court’s TWU 2001 decision, leaving many contradictions between the 2001 and 2018 decisions unaddressed (the Supreme Court upheld TWU’s Covenant in 2001). Considering that the lower courts in BC viewed the 2001 precedent as largely binding (Chief Justice Hinkson of the BC Supreme Court described it as “dispositive of many of the issues in this case”), and that the Supreme Court recently heralded the importance of following precedent in R v Comeauit is remarkable that the majority did not even address the issue. In fact, the only mention of TWU 2001 in the majority’s reasons was to selectively rely on it for two propositions (that administrative bodies are entitled to consider the Charter in their decision making, and that LGBTQ students would not be inclined to apply to TWU).

For her part, outgoing Chief Justice McLachlin (the only SCC judge remaining who participated in the TWU 2001 decision) devoted only three sentences to explain why she felt she was not bound by her earlier judgment: 

There, the College of Teachers based its claim on the concern that teachers trained at TWU would bring discrimination into the classroom. The [Law Society] here has not impugned the competence of potential graduates from TWU. Instead, it is concerned with upholding its own mandate by seeking to avoid condoning or even appearing to condone discrimination.

But, with respect, this is not entirely accurate. In 2001, the College of Teachers did base its accreditation decision, in part, on concerns about “creat[ing] a perception that [it] condones … discriminatory conduct”(mentioned in para. 18 in the 2001 decision). And as noted by Justices Côté and Brown, “This Court has already held that denying accreditation should be based on specific evidence rather than ‘general perceptions’ (TWU 2001, at para. 38).” 

Without any other explanation from the Court, it is difficult not to view today's decision as undermining the stare decisis principle, without which, as the Supreme Court unanimously declared less than two months ago, “the law would be ever in flux—subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.”

3. Dismissive approach to Religious Equality, expression, and association

Another troubling aspect of the majority’s decision was its dismissive approach to the s. 2(b) (freedom of expression), s. 2(d) (freedom of association), and s. 15 (equality based on religion) claims. The majority noted that, although these Charter protections “are potentially implicated in this case”, they declined to specifically analyze them, noting that “the factual matrix underpinning a Charter claim in respect of any of these protections is largely indistinguishable”, and that they were adequately encompassed in the “religious freedom” analysis. 

This is concerning. The Charter sets out and delineates separate rights for a reason: because they protect and engage different interests. It is important to ensure that each right is given its full independent content. Section 2(a) does not render the rest of the religious protections guaranteed by the Charter redundant. While there may be some overlap, each of these rights and freedoms protect unique exercises, interests, and practices that the others do not. Indeed, in a recent decision, the Supreme Court of Canada emphasized that freedom of association is “not derivative” of religious freedom, and that it “stands as an independent right with independent content, essential to the development and maintenance of the vibrant civil society upon which our democracy rests.”

It may not have been necessary for the Court to consider these other protections had TWU’s religious freedom claim been successful, since that would have been sufficient to dispose of the case. But once the majority rejected that argument, surely they were obliged to examine these other Charter claims. The same is true of TWU’s institutional religious freedom claim, which the majority also dismissed as “unnecessary to determine”. How could it be said that the Court engaged in a robust proportionality analysis, when it did not fully identify all aspects of the rights-holders’ claims before weighing them against the Law Societies’ objectives? 

4. A reliance on “amorphous Charter values”

Despite its dismissive treatment of the Charter rights of the TWU community, the majority gave significant weight to protecting the “Charter values” of “equality, human rights, and democracy”—values which “the state always has a legitimate interest in promoting”. 

As the dissent stressed, however, there are significant problems with this reliance on “Charter values” at the expense of actual Charter rights: “resorting to Charter values as a counterweight to constitutionalized and judicially defined Charter rights is a highly questionable practice.” This is for several reasons. First and foremost is their vague, undefined nature. In relying on “equality, human rights, and democracy”, the majority did not pause to define any of these terms; it simply took for granted that the Law Societies’ position furthers these values. But different people have different conceptions of these values, as the dissent eloquently states:

[O]ne judge’s understanding of “equality” might indeed represent a “shared value” with all Canadians, but perhaps another judge’s might not. This in and of itself should call into question the legitimacy of judges or other state actors pronouncing certain “values” to be “shared”. Canadians are permitted to hold different sets of values. One person’s values may be another person’s anathema. We see nothing troubling in this, so long as each person agrees to the other’s right to hold and act upon those values in a manner consistent with the limits of core minimal civil commitments which are necessary to secure civic order—none of which are implicated here. What is troubling, however, is the imposition of judicially preferred “values” to limit constitutionally protected rights, including the right to hold other values.

In short, as the dissent observed, reliance on “Charter values” is nothing less than a way for “the majority [to avoid] actually making explicit its moral judgment, its premises and the legal authority on which it rests.” They enable results-selective reasoning, and can give rise to judicial activism.

5. Focus on ‘public perception’ rather than rights adjudication

The majority’s repeated reference to the Law Societies’ need to “uphold a positive public perception of the legal profession” is also problematic. As the dissenting justices stated,

Equating recognition of a private actor as condonation of its beliefs turns the protective shield of the Charter into a sword. Where Charter rights are involved, a court of law ought not to be concerned with public perception—such rights existing to protect rights-holders from majoritarian values, not to force conformance to those values.

A similar statement was made by the Nova Scotia Supreme Court in Trinity Western University v Nova Scotia Barristers’ Society:

The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state.

The majority seemed to take it entirely for granted that accepting TWU graduates would not uphold a positive public perception of the legal profession. While it may be true that the public response to the Court’s decision will be positive, there was no such evidence before the Court, nor should there have been. Courts should never be driven by public opinion. They are required to do what is right, not what is popular—however little overlap there may be between those two categories. The same is true for the Law Societies.

6. Perpetuating diversity’s blind spot

Perhaps the most disappointing aspect of the majority’s decision, however, was its impoverished approach to diversity and state neutrality. The majority’s decision, like the Law Society’s arguments, repeatedly made reference to “promoting diversity within the bar”, yet it overlooked the value of promoting religious diversity. As CLF and others argued, 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. As the dissent recognized, to accommodate religious freedom is to promote diversity in a liberal, pluralist society. 

The actual effect of the majority’s decision, however, is to undermine true diversity. Authentic pluralism is accomplished by accommodating a diversity of private associations and institutions—including those that may focus on serving a specific segment of the community. It is not achieved by forcing each of those private associations to alter their defining characteristics (religious or otherwise) to ensure that all people will want to join. Diverse associations and institutions are necessary to a free and democratic society, but such communities cease to exist when the state dictates what their core beliefs ought to be, or requires them to deny such beliefs. 

The dissent recognized this:

Properly understood, secularism connotes pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square.  Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view.

Were another association to propose opening a law school designed to serve a different minority group—even to the exclusion of others—would it face the same opposition? Would it be characterized as undermining diversity? Or would the Law Societies recognize that such an institution promotes diversity, and that by encouraging and helping students within a particular community to obtain an education, it serves a social good? That an institution serves primarily people who affirm its beliefs, mission, or principles does not mean it does so at the expense of others. Why is it that religion is the one diversity category that we don’t seem prepared to fully accommodate? 

A missed opportunity to affirm true diversity

As CLF argued at the Supreme Court, an independent legal profession that is truly diverse, inclusive, and reflective of Canadian society must be a place where all are free “to think, to disagree, to debate and to challenge the accepted view without fear of reprisal” (quoting the BC Court of Appeal). 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 manifestly unjust, and a loss for Canada, which is in great need of more people committed to improving access to justice. 

Ultimately, in my view, the dissent got it right in this case. Holding and expressing the view that marriage is a union between one man and one woman is constitutionally protected; it is one that goes to a moral conception of marriage—it is not inherently demeaning of anyone, and certainly does not violate anyone’s rights. Disagreement is not tantamount to discrimination. As CLF stated in its submissions to the Law Societies over four years ago, “in a multicultural society such as Canada, there can be no single conception of sexual morality and marriage that all must be compelled to believe.” 

The state’s role is not to obliterate the existence of conflicting moral commitments—even those which are deeply contested and go to the core of citizens’ sense of identity and deeply cherished conceptions. The state’s role is to allow for difference, not to mandate approval or acceptance. As the 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…
It is therefore not open to the state to impose values that it deems to be “shared” upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values. By accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians.

While many have tried to frame 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 traditionally found ways to respect and accommodate space for both sets of rights. It is disappointing that, in today’s decision, the majority departed from this approach.

Derek Ross represented Christian Legal Fellowship as an intervener at the Supreme Court of Canada, with co-counsel Deina Warren. The author is grateful to Ian Sinke and Sarah Mix-Ross for their assistance in the development of this article. The views expressed are his own.