Nobody should have been surprised that the Supreme Court of Canada has ruled that the sexual preferences of a tiny minority (two-three percent) of the population take precedence over the religious rights of all Canadians (including the tiny minority of the tiny minority—Gays and Transgenders who are also Evangelical Christians). Can anything be done about the Trinity Western Law School decision?
Those who value religious liberty and all civil liberties, liberal democracy, pluralism and the Canadian Constitution as written and enacted—we should all be disappointed to the point of shock. It is supremely dismaying that the highest court in the land has reinterpreted the Constitution to mean something so opposite to its wording and, we have to assume, the intention of its drafters. The impact is potentially extremely hurtful and moves Canada in a decidedly totalitarian direction hostile to faith and freedom.
Why am I not surprised? Because the writing was so clearly on the wall when the whole issue was created by the legal professions in three English-speaking Canadian provinces—including the two biggest in Ontario and British Columbia. Their overwhelming dismissal of the religious rights of future graduates of Trinity Western University’s proposed law school indicates the direction taken by several generations of law professors. This ruling was long in the works.
Such a clear indication of where the legal profession has gone surely warns that the judges that have been drawn from the profession will hold the same views. As one then-law professor (and now a judge) told me recently: “I am the only legal conservative on my laws faculty. I know that other faculties throughout Canada are the same.” The majorities on those faculties and the lawyers and judges they have trained believe the following:
- The Constitution and Charter of Rights means what judges say it means, not what the words convey on their face. This has been the theme of the long, baneful reign of Chief Justice Beverly Maclachlan: the so-called “living tree” doctrine. It means that the courts are free to reinterpret the written document to suit the changing times. In effect, this provides a way to change the Constitution without resort to our very difficult amending process involving assent by a super majority of provinces representing a majority of Canadians.
- The importance that the Constitution gives religion—making religious freedom one of the four “fundamental freedoms” along with speech, assembly, and thought—can be, should be and has been dismissed by the courts. That was then and this is now. Canadians today place much less importance on religion than in 1982, when the Constitution was drafted, and the courts should reinterpret the Constitution to reflect this. No need to wait for the elected legislators to reflect the will of the people.
- Diversity, which means rights for sexual minorities essentially, but also medical access for those seeking abortions and euthanasia, is much more important than religious rights.
- With religious belief effectively demoted as one of the Charter of Rights and Freedoms fundamentals, it survives only as one of the characteristics protected from discrimination along with ethnic and sexual minorities, gender, age etc. When conflicts arise between such groups, the courts now weigh them in the balance of relative ease of accommodation on the one hand and relative injury on the other.
In the case of Trinity Western University, even using this “balance” approach, the Supreme Court is clearly wrong.
Because Trinity Western University’s proposed law school has been prevented from existing under the school’s current ban on sexual activity outside heterosexual marriage, the Evangelical Christian community in Canada, as well as conservative Christians of all denominations (conservative Catholics have already set up an adjunct to TWU), have lost their only opportunity to have their children schooled in law while protected from the prevailing sexual mores.
But if TWU were allowed to operate its school under its current ban, not one single LGBT student would be denied a place there. They would simply have to pledge to refrain from homosexual activity while enrolled. If this was deemed an intolerable imposition they could attend any other law school in Canada and have their sexual activities defended and promoted. Moreover, they could do so for a tiny fraction of the tuition free charged by the private Christian university. (Virtually nobody attends TWU whose parents aren’t footing the bill)
Nor does TWU’s ban on homosexual activity deny them any real opportunity. The proposed school would attract candidates who would otherwise attend public universities. TWU’s law school would therefore open up opportunities for LGBT candidates in public university law schools.
What this decision does is strike a blow against diversity of thought in the name of diversity of sexual practice. It quashes debate on the issue by preventing the creation of a law school that would dare to disagree The decision must therefore be seen in the larger context of Canada’s intellectual elites acting in favour of LGBT entitlement. The country’s banks not only flash pro-homosexual messaging to customers from the back wall of their branch offices, they threaten to cut off would-be corporate borrowers who do not appoint enough LGBT members to their boards and management, for example.
Is the situation hopeless? No,but resistance will be costly. Conservatism in the U.S. points at least one way. There legal foundations have created summer law schools to provide training for graduates of secular law schools in bringing Christian and conservative legal thinking to bear. This addresses the need for an ideological counterweight to the prevailing post-modern legal consensus which holds that laws are whatever judges want them to be and which promotes sexual permissiveness. However, it does not solve the problem of protecting young Christians who have been home schooled or enrolled in Christian private primary and high schools until now from the secular humanist, sexually permissive world view.
Christ never promised us a rose garden, in this life.