Canada has been as source of concern in the deteriorating situation of religious freedom in the West for over the last two decades. In line with western Europe, and ahead of the United States, its infringements on religious freedom and free speech in the interest of social liberalism have been alarming.
A long running battle over the law school of Trinity Western University in Langley, British Columbia came to a head on June 15, with the Canadian Supreme Court ruling against the school. TWU, associated with the Evangelical Free Church of Canada, maintains a Community Covenant, in which all students, faculty, and employees are bound to adhere to Christian morality as outlined in the covenant. This includes a broad range activity, much of it non-sexual, but it includes a commitment not to engage in sexual activity outside of the traditional marriage of one man and one woman. LGBT leaders have strongly fought this aspect of the covenant, and succeeded in getting law provincial law societies in Ontario and British Columbia to exclude TWU graduates, although other provinces accepted TWU graduates.
Happily the court recognized that there was nothing unlawful about a religious organization holding a covenant with standards of behavior and common values, but held that provincial law societies can exclude TWU’s graduates as a matter of the public interest, making it impossible for TWU graduates to work in those provinces. Whether this will lead to the closure of the law school remains unclear, but Trinity Western insists that the school as a whole is not operating in violation of any law, and its school of education won a similar accreditation battle against the British Columbia College of Teachers in 2001, with Canada’s Supreme Court ruling in favor of TWU.
A commendably honest but nonetheless distressing aspect of the court’s decision is its acknowledgment that the decision indeed infringes on rights guaranteed in the Canadian Charter of Rights and Freedoms. The denial of these rights (contained as well in a second decision overturning a verdict in favor of TWU) was in the interest of “balance” with statutory law, which the court maintained gives law associations the power to act in the public interest. Yet if charter rights may be infringed where it is “reasonable,” then these rights are not really guaranteed, nor is the charter superior to statutory law.
In the case of the Trinity Western law school, the Canadian Supreme Court, apparently acted on the fact that TWU requires student conformity in behavior but not to particular beliefs. It seemed to treat the school more as a public accommodation. It thus was able to deny that Trinity Western was truly voluntary, saying that some people may feel that they have to attend. But this is obviously not so – the school is in fact a private institution that no one has to attend.
In this regard the court presumed to say what a Christian environment is, maintaining that a Christian environment with people committed to the same values does not require the enforcement of a particular sexual morality. To state the obvious, a religiously neutral state cannot prescribe what a religion is or should require.
In light of the Trinity Western decision, any Christian organization in which participation is open to the public cannot be assured that its own internal rules on a specifically Christian basis are safe from legal attack. As an example from a decade ago, the Evangelical charity Christian Horizons suffered a devastating attack on its mission as a Christian charity. A lesbian employee who had with all other employees signed a statement to conform to Christian sexual morality had initial success in a compliant with the Ontario Human Rights Commission, which required Christian Horizons to give up its morality code because Christian Horizons serves the general public. In the end, a regular court recognized that Christian Horizons was a religious organization requiring religious standards of its employees but not the recipients of its services, and decided that it did not have to give up its morality code. But today there could be a different result, proceeding from the Trinity Western decision.
The Evangelical Fellowship of Canada has strongly and articulately advocated for religious freedom over the course of the last generation in which there has been a relentless attack. Since the time of the decision it has posted responses to the ruling as the prime story on its website. Included there is an interview with Earl Phillips, the law school’s director. His comments about the future of TWU and the fidelity of faithful Christians in Canada were re-assuring, although it remains to be seen what will happen in the near future.
Phillips said that TWU will continue to be committed to a core value of the Community Covenant, which is the inherent dignity of all persons, but TWU needs time to analyze the decision, that Christians in Canada should participate in Canadian society as best they can “in a way that is honoring to our faith.” TWU, perhaps without law school, will “continue to uphold Christian values in how we live, work, and study together.” Asked if TWU’s law school will continue, Phillips said that TWU needs time to reflect. His opinion is that “we are struck down but not destroyed” (II. Cor. 4:9). TWU needs to be “God honoring” and “a faithful presence in society.” For the future “we know who we serve, and we can trust in God.”
Did the court depart from its ideal of balancing religious freedom and equality? Phillips said TWU ended up on the “wrong side” of the court’s balance, but “we” (presumably Canada) will have to continue to work hard at “diversity” to “get the benefits” of diversity. Presumably this means TWU and other Christian institutions will continue to contest LGBT/secularist attacks, and close their doors rather than give in if required to compromise with sin. It should be said, however, that in the matter of liberty of conscience, there should be no need to be concerned with “balance.” The reason for conscience protections, as the writer has stated in the past, is that people need to be protected from being required to take actions that they regard as evil (in Christian terms, sinful). The idea of “balance” in the area of conscience implies that commitment to obey God can be compromised, and that we ought to take, in certain circumstances, actions which we believe to be evil. The very statement of such a principle shows that it is false.
Also considered by Phillips was whether other TWU professional schools are at risk. In Phillips’ opinion, apparently not. The Canadian Supreme Court decided in favor of TWU’s school of education in 2001. He believes that there is “no reason for concern” on that past dispute. But to this writer, it would now seem in doubt, as the court has put forward the principle that a Christian institution can be required, for the “public interest”, not to enforce Christian sexual morality.
In the Evangelical Fellowship of Canada’s analysis of the decision, it was pointed out that the decision was “focused” (i.e., specific to the case), and does not invalidate the 2001 decision in favor of TWU’s teacher’s college (although the British Columbia College of Teachers – a professional association – may challenge that decision based on last month’s law school decision). It was also pointed out that the court used a “fluid” analysis of the Canadian Charter of Rights and Freedoms, according to which rights guaranteed in the charter may be set aside if it is “reasonable.” It was noted that dissenting justices disagreed with the “fluid” analysis framework, and it may be challenged in the future, which would mean a firmer guarantee of charter rights. It was further noted that decisions made in the fluid framework are not binding in future cases, whereas strict analysis is. The 2001 teacher’s college decision in favor of TWU was not made in a fluid framework, and so is binding in the future.
Due to the danger that TWU’s teacher’s college or other professional schools may be attacked, it was suggested that altering the TWU covenant is a possibility to allow TWU to continue to function. But any alteration should never abandon Christian sexual standards for the institution, although limiting participation in the institution to people who meet doctrinal standards might give more security. For a Christian institution to abandon Christian standards while yet holding itself to be Christian would be the worst possible outcome. The whole logic of liberty of conscience is that individuals and organizations should not be required to take actions they believe to be evil. Laws and regulations ought to be obeyed even if we don’t like them. Only if we believe such state rules to be evil should we not comply with them. In the case of a Christian institution, it must be separate from sin, as Christ and the apostles commanded (Matt. 18:7 and II Cor. 6:17). Therefore it should not function as a Christian institution if it is required to accommodate sin.
As was pointed out by the EFC panelists, the Canadian court system in fact does not have a long line of cases involving attack on institutional religious freedom, and is in fact moving toward acknowledging such freedom. The court did not say the Trinity Western may not have a community covenant, including a covenant that prescribes sexual morality, only that the provincial law societies withholding accreditation from the law school was “reasonable,” and therefore the decisions of the societies in Ontario and British Columbia were not overturned. Neither were the decisions of the other provincial law societies which decided in favor of Trinity Western. Regrettably, Trinity Western is located in British Columbia, where the law society decision went against it.
It appears that the Trinity Western decision is being widely criticized across the Canadian political spectrum as an attack on religious freedom. EFC panelists saw the current policy of Canadian Prime Minister Justin Trudeau’s government, which requires affirmation of abortion and transgenderism to receive state aid for summer jobs as more threatening than the Trinity Western decision, which it indeed seems to be, since it effectively requires an ideological commitment to receive state aid.
EFC President Bruce Clemenger said that in response to the decision, “the worst thing is to withdraw, the best thing is to engage, to continue to love God by loving our neighbor.”
Support for TWU came from Catholic Archbishop J. Michael Miller of Vancouver, who said that the implications of the decision for religious freedom are “severe” and that he agrees with dissenting justices that the decision “betrays the promise of our Constitution that rights limitations must be demonstrably justified.” He maintained that “the court has undermined rights actually written in the Charter in favor of unwritten charter values.”
As was noted in the webinar, the Trinity Western decision has to be seen in the context of other recent decisions of the Supreme Court of Canada regarding religious freedom. A couple of weeks prior to the decision, the court gave strong support to the right of a religious organization to regulate itself according to religious principles. In that decision, Wall vs. the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, the court recognized a comprehensive right to church discipline. This decision was very good news for Canadian Christians. The case involved a disfellowshiped Jehovah’s Witness claiming he lost business because Jehovah’s Witness customers will now not deal with him. Lower courts in Alberta agreed that they could review the decision of the Jehovah’s Witness organization, but the Canadian Supreme Court unanimously ruled that religious groups are free to practice internal discipline. Since the court declared that “religious groups are free to determine their own membership and rules,” (and certainly other groups than houses of worship are “religious groups”), organizations like Trinity Western University and Christian Horizons have hope of being protected from parties who disagree with their rules, if they require religious commitment to be a member, and not simply agreement to a moral code set by the organization.
The net effect of the two decisions – the Wall decision affirming the right of church discipline and the Trinity Western University decision denying the right of a religious organization which is in some measure serving the general public to apply religious standards in its work – is to move Canada toward confining religious freedom to the internal life of religious groups. Christians need to remember that our duty to God, above and apart from winning culture wars, is never to accommodate sin, and that never changes, because God’s will does not change. The wider world needs to realize that Christians have much love and talent to offer society, but it must be offered in obedience to God, and not constrained by hurt feelings.
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