DANIEL VAUGHAN: Anti-Christian bigotry from Canada’s Supreme Court

July 23, 2018

The Supreme Court of Canada recently prevented a private Christian university from forming a law school, ruling that requiring each incoming student to sign a community covenant violated the Canadian constitution.

In reaching their 7-2 decision, the Canadian high court had to ignore precedent, the words in Canada’s Charter (their constitution), and concoct new authority from nothing — all in the name of social justice.

By ignoring their charter and case law directly on this exact point, the court effectively declared it could rule whatever it wanted without constraint. And their ruling doesn’t just damage religious liberty; it undermines the rule of law in Canada.

Trinity Western University (TWU) is a private Evangelical university in Canada, offering degrees and training across a wide variety of disciplines. Recently, they decided to add a law school to their degree offerings, and started that long and laborious process.

Part of the accreditation for law schools in Canada is getting approved by the Law Societies. This process is somewhat similar to a U.S. law school becoming accredited by the American Bar Association.

While working through the process, TWU was rejected by the Law Societies because of the Community Covenant TWU requires new students to sign. Part of that covenant states that marriage is between a man and a woman.

The Law Societies and the Candian Supreme Court rejected any accreditation of TWU because doing so violated “values” of diversity, inclusiveness, and other progressive buzzwords. Notably, none of these values is in the Canadian Charter — but there is a clause protecting religious liberty.

Before going any further, I should mention that this case should have never made it to the Supreme Court, nor should it have even been an argument. You see, this isn’t the first time TWU has been sued on this exact point.

In a 2001 case, Trinity Western University v. British Columbia College of Teachers, TWU was sued for opening a teachers college and having teachers in training sign the same pledge. Teacher societies denied accreditation of TWU on the same grounds as the Law Societies in 2018, alleging that TWU banned “homosexual behavior.”

In an 8-1 decision, the Candian high court struck down the teachers unions and societies trying to block TWU. The court could find no evidence that TWU had ever engaged in discriminatory behavior or harmed anyone in having students sign the pledge.

The Court further said:

The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools … the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected … For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

Shockingly, in the 2018 case against TWU’s law school, the Candian Supreme Court never referenced or referred to the 2001 matter. Not once.

They didn’t even try to distinguish one opinion from the other, they just pretended it didn’t exist, despite lower courts correctly assuming the 2001 case bound them.

Which brings me to the more significant problem of Canada’s decision to discriminate against private Christian schools like TWU, they’re also undermining the rule of law. As Derek Ross, a lawyer who filed interventions in the TWU case, said:

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.

There’s no legal rationale for the sudden decision to discriminate against TWU when prior case law already affirmed TWU’s religious rights.

The dissent in the 2018 case took the majority opinion to task on many issues. Most notably, it hammered the majority for inventing new reasons to constrain religious liberty. In paragraph 75, the dissent states:

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.

And in the end, this is the legal irony of cases like this one. Leftist jurists spill a lot of ink defending values like diversity in the overall community.

But in denying TWU the right to start a law school in conformance with their faith, progressive ideology squashes diversity. Only the leftist orthodoxy is allowed in their diverse society; dissent is forced out.

Furthermore, when these ill-defined, amorphous values collide with fully stated rights like religious liberty, the left ignores statutes, constitutions, and case law to achieve the end they want. These “values” aren’t the rule of law; it’s judicial fiat.

As Jonah Goldberg noted in his book, Liberal Fascism, it’s all a power play: “Progressivism, liberalism, or whatever you want to call it has become an ideology of power. So long as liberals hold it, principles don’t matter.”

And so it is in the TWU case; there are no legal principles. There is only a made-up legal rationale used to achieve an end.

In Canada, that end is outright discrimination against evangelical Christians, even when the Canadian constitution, stare decisis, and ordinary legal reasoning all demand the opposite result.

What religious group will Candian progressives target next?


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.