Canada June 27, 2018

After TWU, what next? Religious leaders examine their options

By Deborah Gyapong

William Sammon, who represented the Canadian Conference of Catholic Bishops in the Trinity Western University case, says Canada is “simply stuck” with the Supreme Court’s decision. (CCN photo)

OTTAWA—Religious leaders are examining how to respond in the courts and in the public square to the devastating Supreme Court of Canada’s June 15 Trinity Western University (TWU) decision.

“It’s effectively a relegation of religious freedom and conscience rights to the private sphere,” said Phil Horgan, president of the Catholic Civil Rights League which intervened with the Archdiocese of Vancouver and the Faith and Freedom Alliance on the side of TWU.

“The next case will be a further signal of the extent of how this ruling is going to be applied,” Horgan said.

The TWU decision could have an impact on the lawsuit by the Christian Medical and Dental Society (CMDS) of Canada against the College of Physicians and Surgeons of Ontario for its policy requiring doctors to make effective referrals in cases of euthanasia or other treatments some doctors might find morally objectionable. Horgan said groups intervening in this case are preparing their arguments now for a hearing by the Ontario Court of Appeal.

In addition, two lawsuits are in the works opposing the Canada Summer Jobs attestation. An array of Christian groups including the Evangelical Fellowship of Canada, the Catholic Civil Rights League, the Canadian Council of Christian Charities, and others are contemplating additional litigation.

“In the attestation the emphasis is on forced expression,” said John Carpay, president of the Justice Centre for Constitutional Freedoms that is representing an Alberta family irrigation business that was refused a Canada summer jobs grant because it could not sign the attestation.

“It’s frightening how little understanding the Supreme Court has of religious freedom and its importance,” said Carpay. The centre also intervened on behalf of TWU. “It’s absolutely frightening.”

At issue for TWU was the privately-funded, evangelical Christian university’s mandatory community covenant that requires all students, faculty and staff to abide by Christian moral standards, including refraining from sexual activity outside of traditional marriage between a man and a woman.

The Supreme Court agreed with the decisions of the Law Society of British Columbia and the Law Society of Upper Canada (now Ontario) not to accredit TWU’s proposed law school because the public interest mandate of these bodies and charter values enabled them to decide the school discriminated against LGBTQ students who would be harmed by the covenant and thus for an equal chance for a law degree.

Horgan said the Court in effect gave its blessing to the decisions made by administrative authorities in the “public interest” based on “amorphous and undefined notions of charter values,” and “effectively allows further state actors to make it up as they go along.”

The Supreme Court used to be the place where fundamental freedoms in the charter were recognized within “a genuine, authentic pluralistic understanding of our constitutional history,” Horgan said. “That arrangement has been severed.”

“Any decision maker confronted with a particular faith claim gets to effectively use a charter values argument to defeat it,” Horgan said. “This a certainly a disappointing outcome and one for which the ramifications of which are yet to be understood.”

Horgan sees a danger of “civic totalism,” as one viewpoint becomes “the new normal and any dissenting viewpoint is now pushed to the margins and treated as not worthy of respect.”

The notion of “charter values” and “other rights” has also been used in the Canada Summer Jobs attestation, and this means “your prolife views are making you ineligible for government support of what otherwise might be a worthy initiative,” Horgan said.

“The logic of this decision has profound and wide-reaching consequences regarding all aspects of Christian organizations serving the public where there is any sense of public benefit involved,” said Ray Pennings, executive vice president of Cardus. “Keep in mind that the only public benefit TWU was seeking was accreditation – effectively a license to operate – so this has potential application to thousands of organizations.”

William Sammon, who represented the Canadian Conference of Catholic Bishops before the Supreme Court, said “we’re simply stuck with” the decision.

Sammon, speaking for himself and not the CCCB, said it can be argued the decision narrowly applies to law societies and the unique role they play in the administration of justice and does not apply to other regulatory bodies.

“The way the religious communities have to look going forward is how to limit the damage,” he said.

It was TWU’s stance on marriage “that gave everybody a problem, including the justices of the Supreme Court,” said Sammon. “But the belief by evangelical Christians in their religious definition of marriage is part of who they are. To treat that belief as simply a preference or as peripheral is certainly inconsistent with previous decisions, I would argue, by the Supreme Court itself.”

Carpay suggested taking a legislative route to mitigate the damage. “It’s open to Ontario and B.C. legislators to amend the legal profession act, and to clarify what public interest means,” he said. “The court’s decision was an interpretation of legislation, but that does not mean that the legislation cannot be changed.”

Carpay pointed out the dissenting opinions by two justices in the TWU were good. “We’ve seen in the past, sometimes today’s dissents because tomorrow’s majority,” he said.

“The temptation is to think a legal decision requires primarily lawyers and legal strategies as a response,” said Pennings. “It needs that but it also needs a broader strategy. The majority decision is grounded not so much in law as in the ‘public interest,’ which suggests we need to be thinking cultural and broader-based strategies.”

Bruce Clemenger, president of the Evangelical Fellowship of Canada agrees there needs to be a national conversation about what ‘charter values’ and ‘public interest’ mean.

“The charter does not self-interpret,” he said. It does not define terms such as freedom, life, equality, but leaves it “up to the court to determine the meaning of those terms.”

“(The justices are) invoking charter values as a value framework to interpret rights and freedoms,” Clemenger said. “I think we need to be engaged in a broader conversation about what are our core values, principles and norms for society.”

He would also like to see Parliament more involved in making decisions have been left to the courts to decide.

Clemenger, too, said one of the EFC’s objections to the attestation was that it included “other rights and referred to charter values.”

“We’re faith communities. We have at our core statements of faith,” he said. “We don’t attest to something unless we know what it means.”

Meanwhile, TWU also contemplates its next steps after years battling in the courts.

“We need to understand this decision is quite specific,” Phillips said. “It is about a proposed law school at Trinity Western under the community covenant we have. The decision does not say the (Supreme Court) decision in 2001 about our school of education was wrong, the decision does not say ‘we are overturning that.’”

TWU will review its covenant “in the context of a careful analysis of this decision and discussion in the community,” he said.

“For faith organizations in particular and other Christian organizations, there is nothing in this decision that says we cannot carry on doing the vital, important things Christian organizations are doing in education, health care, and social services,” Phillips said. “We should continue to do that in accordance with our values, our commitment and the energy that comes from the divine inspiration that fuels faith communities.”

Canadian Catholic News