July 03, 2015

Trinity Western decision proves "gay rights trump religious rights in Canada today"

Brian LilleyArchive

Gay rights trump religious rights in Canada today, it is that simple. At least in an Ontario Superior Court they do.

On Thursday, three judges of that court - Frank Marrocco, Edward Then and Ian Nordheimer - agreed with Trinity Western University’s assertion that their Charter-guaranteed-right to religious freedom was infringed by the Law Society of Upper Canada but according to the court, infringing of that right to religious freedom is okay due to a “balancing” of rights.

Trinity Western, or TWU, is trying to establish a law school but has met with resistance from law societies across Canada over allegations that the school and its Community Covenant are discriminatory. Among other things, the school asks all students to sign a pledge to abstain from: stealing, cheating, gossip and yes, sex outside of marriage. How does the evangelical Christian school define marriage? They define it as being between one man and one woman.

That is what makes the school ineligible to be accredited by the law societies according to the critics. When The Law Society of Upper Canada said they would not allow TWU students to article or be called to the bar in Ontario, the school went to court claiming discrimination.

The Law Society of Upper Canada is not a government body but is tasked by the government, through legislation, with determining who can practice law in the province. The school argued their religious freedom was being infringed and the court agreed.

“All of that said, we are nonetheless satisfied that the decision of the respondent does amount to an infringement of the applicants’ rights to freedom of religion,” the decision reads.

So how then did the court find against TWU?

They turned legal precedent on its head and cited a change in “attitudes”.

Not law, but attitudes.

In 2001 the Supreme Court ruled in favour of TWU in a very similar case after the British Columbia College of Teachers had denied the school permission to open a teacher’s college on the same grounds.

In its 2001 ruling the Supreme Court stated, “It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities.”

Yet that is what Ontario’s court has done.

In their decision Justices Marracco, Then and Nordheimer have essentially said that TWU can open a law school, the fact that their graduates will be prevented from “fully participating in public activities” is of no concern to them.

To arrive at their decision the justices don’t focus so much on the law as they do on ratio of law school applications to positions and on the changing attitudes towards homosexuality in Canadian society.

“The attitudes of the general population towards such issues changes almost daily. Certainly those attitudes, as they relate to the issues that are raised in this case, especially towards LGBTQ persons, have changed considerably in the last fifteen years. As such, this area of law is probably the most fluid of any area of law in terms of the appropriate application of legal principles and the context in which they come to be applied,” the decision reads.

This of course is not a statement about law or Charter rights, it is about feelings – not something the court is supposed to base its decisions on and yet it does.

This case is about religious rights vs. gays rights and clearly, based on changing attitudes, as opposed to changing law; gay rights have the upper hand at this point.

It’s not supposed to be this way. Rights are supposed to be balanced. In the 1994 case, often cited by the Supreme Court Dagenais v. Canadian Broadcasting Corp. the court warned against giving rights a hierarchical order.

“A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict . . . Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.”

This decision shows no respect for freedom of religion. Will it really harm gay and lesbian lawyers if a Christian school exists that disagrees with them? Is this the new pluralism, you can have any belief as long as it is the right one approved by the state?

The court claims their decision will not stop TWU from opening a law school but without graduates being able to practice law the school will be useless.

This is part of an ongoing trend in society that says you can hold beliefs but only in private. It stems from a worldview that reduces freedom of religion to a freedom to worship. Religion in this context is a private matter for your home and house of worship and is never to be brought out into the public square.

This decision says freedom of religion no longer matters. Thankfully the school is appealing but given the changing “attitudes” that guided the Ontario decision, I’m not hopeful that a different result will come about.

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commented 2015-08-20 00:48:54 -0400
Any religion except Islam – nothing trumps Islam in the progressive mindset.
commented 2015-08-16 00:50:15 -0400
The gay movement has almost anhialated the church. 15%of gay priests pushed up into the ranks, causing mainstream to believe that all of them are. Millions of dollars and thousands of lives wasted. This has to be evil because satans agenda is to destroy the faith of Christ, and make people believe this is good. But God will prevail. He has control “On this rock I will build my foundation. Even the gates of hell will not prevail against it”
Matthew 16:18
commented 2015-08-10 16:15:04 -0400
The is no such bloody thing as Gay Rights, because is is not not recognized under the laws of the Nation of Canada. In fact, the only so-called Rights that are officially recognized in the Canadian Charter of Rights and Freedoms, are those of HUMAN RIGHS Only an ACT OF PARLIMENT can make LEGISLATION TO AMEND OR CHANGE THOSE RIGHTS. not any Court.
commented 2015-07-13 21:55:09 -0400
Anne Smyth – that old saying"the law is an ass" could not ring truer!
commented 2015-07-08 16:42:50 -0400
This reminds me of George Orwell’s book Animal Farm; a narrative seldom read today but just as relevant as when it was penned in 1945. The animals ran the humans off the farm to start their own utopian society. The party slogans began to change over time until one of them read “All Animals Are Equal; Some Are More Equal Than Others”.
commented 2015-07-07 14:50:04 -0400
Terrorists and haters have more rights than Christians in Canada now….thank god I can suck all my pensions out, but no longer have to live in the toilet that is now Canada….cannot wait until everything comes crashing down while I am sucking down pina colada’s on a beach down under….hahaha.
commented 2015-07-07 12:18:29 -0400
Better get used to it. Here and in the US the persecution of Christians by the gay Nazis is just beginning.
commented 2015-07-07 07:52:32 -0400
Nobody’s rights “trump” anyone else’s rights in a vibrant constitutional liberal democracy under rule of law. We are all equal under and before the law or we are just another corrupt backwater defined by warring groups and official bias which keeps us in a perpetual state of injustice.

Canada’s rule of law is eroding and the caustic force is judicial activism which defers to special interest politics and group identity factionalism – this has created a hierarchy of identity groups and a pecking order where the courts dole out rights in an inequitable basis – the exact opposite of the inherent justice found in the equitable application of the rule of law.

Canada is long overdue for judicial reform but with the current lack of statesmanship and leadership in federal politics, it will only get worse until the people are so distressed by these injustices that the whole justice system is held in wide public disrepute and ignored.
commented 2015-07-07 07:49:18 -0400
“Terry: so now pro-gay = anti bigotry.”
LOL. Nope, you got that exactly backward.
commented 2015-07-06 22:51:19 -0400
Terry, your example of the gay U: you’d be just as wrong as you are now, and for exactly the same reason. If, in your example as you say, the hetero couples would have to read and sign off on the rules of the campus, then where’s the victim? It’s not like those heteros are being forced to do anything, assuming your fictional college is in our current reality and not the only college available to get a law degree for some reason. Once again, it would be a simple case of two parties agreeing to the terms of a contract, involving something that you, for some reason, find unfair, but unfair to whom? Once again, show me the victim. Put a face on the one, single person who was somehow forced to sign off on something as horrible as abstinence in order to get the only law degree that person could possibly get. Without that face this is just another sorry example of social – engineering types saying “I don’t like something about that, so I’m going to force everyone else to obey my principles just because I can – despite it not affecting me personally in any way and also despite the fact that the people who my prejudices are affecting don’t agree with me or my control – freak methods”.
commented 2015-07-06 22:38:44 -0400
Terry: so now pro-gay = anti bigotry. There’s your problem. You refuse to accept the possibility of overkill, or reverse bigotry. You undoubtedly think that the only people capable of being racist are whites. Gotcha. Thanks for clearing that up.
commented 2015-07-06 20:45:10 -0400
When did marriage become a “right”? I know it’s a Rite but it’s not a Right! There are laws against who can and cannot be married. Eg; first cousins, brother/sister, and until recently same gender. All for good reasons. Mainly children. We can all see now the impact same gender unions have on society as a whole. Adoption, families with 2 “mothers” or “fathers” in other words an unbalanced unit. You may well say, lots of homes have only one parent, that is also an undesirable trend but at least the child knows they have a father or mother. Pretending there’s no difference is the harmful part. The Supreme Court of Canada confirms the old saying “the law is an ass”! In my humble opinion.
commented 2015-07-06 20:44:19 -0400
Mr. Lilly please do not accept this as a conflict of “opposing rights.” On the one hand we have a group of students who will be studying law at a university (which just happens to be Trinity Western U.) and on the other someone has tried to portray the efforts of these students as somehow having something to do with the sexual activities of some group. Studying law—whether at home on a computer or at any university offering such a course of study—has nothing to say about the sexual activities of anyone. The students are not interfering with any group denoted by special sexual expression. The attempt to somehow shove the two into some class called “rights and freedoms” is simply false. They have nothing to do with each other. Clearly some group is trying to draw attention to itself and some legal types are trying to make progress in their law careers in this manner. I must be incredibly stupid, as I fail to see that this is a matter for discussing anyone’s “rights and freedoms.” The Law becomes more bizarre with each case. Who decided these absurd courses of actions? It is illogical to equate a serious pursuit of higher learning at ANY institution with what some people choose to do in bed. I really do not care what anyone does in their beds. However, it is of some interest whether the law course is a good one or not. Separate issues! One is of interest to those who wish to pursue a law career. The other is of interest only to the participants in the particular sexual union. It is not of general interest and should not be portrayed as such. Really what on earth do we go on and on about? Talk about the number of angels on the head of a pin!
commented 2015-07-06 19:46:11 -0400
Terry & Token. Why worrie. Very soon The Supreme Court of Canada and will follow the law of Sharia. Goodbye Gays Goodbye Christians.
Ooh La Ramadan a Ding Dong. VOTE PC.
commented 2015-07-06 15:22:47 -0400
Whoops, posted too soon.
Let me make it even clearer with another example.
Let’s say the International Gay Conspiracy decided to sponsor a law school in Canada designed to promote the training and advancement of lawyers with expertise in areas relevant to gay advocacy.
Let’s say they had a code of conduct that stipulated that only same sex married couples could have conjugal relations with enrolled in the program. Straight couples would have to pledge NOT to have sex.
Now, in that case, I’d be on the side of the straight couples; I’d view that policy as completely discriminatory and unacceptable.
See? Simple, really.
commented 2015-07-06 15:15:01 -0400
“You clearly stated that you believe that the rights of gays trumps the rights of Christians, or Hindus, or whatever.”
Excellent. You’ve grasped the notion that it’s not an anti-Christian stance: it’s an anti-bigotry stance. You’re making progress!
commented 2015-07-06 14:06:38 -0400
There is an office of Religious Freedom in Canada. I know, I just checked it’s online presence. Apparently it’s focus is on international affairs. Is there no way it can get involved in domestic issues? Because this is one issue it should be involved in. Maybe if they could find an international student who would wish to get a ticket from Trinity but is unable to because of this ruling, that would constitute an infringement of religious rights on the international stage, wouldn’t it?
commented 2015-07-06 14:01:47 -0400
Actually Terry, you did answer it. You just added Muslim, Hebrew and Hindu to the mix, but you’ve clearly come out in favour of the gays, over (insert religious affiliation here). You clearly stated that you believe that the rights of gays trumps the rights of Christians, or Hindus, or whatever. So, when the Muslims, or Hindus, or even the Christians cry that their religion is being subverted by those who don’t believe the same things as they, who’se going to stand up for them?
And, maybe I missed it somewhere, have you addressed the issue of the extra-legal interference of the Law Society? The court, in this instance, admitted that the issue of religious rights exists, but that gay rights are more important. I (and Brian, and everyone else) says the court got it wrong, not because we’re all bible thumping Christians but because the Society has no business telling a law school what rules they can impose on their privately paid and voluntarily there students. I say the Law Society should stick to it’s knitting, which has no mandate to direct traffic at a private school in this manner. If it’s a legal matter, as I think you’ve asserted, then let the actual courts deal with it from the beginning instead of not having an actual judge look at it until it gets to the appeals stage. And, once again, I ask about the victim. With no victim, this is just another example of some busybodies getting their noses in where it isn’t needed or wanted. Who gives you or the societies the right to interfere with a contract between two groups, with total knowledge of the conditions of the contract, that breaks no laws regarding both parties involved in the contract and causes no identifiable harm or loss to anyone, anywhere? You can sit here and judge Trinity and it means nothing, but the societies sit in judgement and it means something, when it shouldn’t. I ask again: who gives them the right? Who gives them (and you) the right to tell me, a possible defendant, that I can’t have the option of choosing a lawyer to represent me that was educated in a school that has strict Christian rules? What if that’s what I want, as a defendant? I guess I’m just out of luck, because gays. Thanks, guys. Thanks, Terry. Next time keep your opinions to yourselves, maybe defendants should have some rights, too.
commented 2015-07-06 07:39:47 -0400
LOL. Don’t really care what you “buy”, Token. I’ve answered your answerable questions. There IS no answer to the your broader question, largely because you’re grandstanding, not trying to clarify. Let’s revisit it.
“if it comes down to preserving the rights of a gay person at the cost of denying rights to a Christian, you side with the gays. Right or wrong?”
I’m not seeing this as an issue of Christian “rights” vs. gay "rights at all (although that’s how Brian is framing it. I’m seeing it as an issue of discrimination. If a Muslim school, a Hassidic School or a Hindu school, in Canada, operating under Canadian law, told gay, legally married couples that they couldn’t have sex while registered as students, but that straight married couple could, I would have exactly the same objection.
commented 2015-07-06 02:02:31 -0400
Sorry, Terry, I don’t buy your “gay Christian” argument. If anything, it should go the other way. So address the gay vs Christian argument, one way or the other, and then address the gay Christians on the case by case basis instead of assuming there are more gay Christians than gay non-Christians. And still waiting for the name of the victim, here. I really don’t believe any of your arguments until you can apply them to a name and/or face. Until those are real the whole argument is, like I said, a big case of someone not connected to something nevertheless applying some kind of power over it arbitrarily. Which should be uncool, to those of us who understand the reference.
commented 2015-07-06 00:30:46 -0400
Why don’t we just treat homosexual issues not as ones of rights but rather of politics? As such why do our courts involve themselves in politics at all? This whole matter has cleverly been disguised as human rights when it fact it is a raw grab for power. Our justice system has been infiltrated by homosexual activists bent on subverting our democracy to instil their values through the exercise of power to eliminate all opposition to their demands. This is not democracy but despotism.
commented 2015-07-05 18:30:14 -0400
Isn’t it a mistake to pose this situation as a conflict of opposing “rights and freedoms?” On the one hand we have young men and women who plan to study law for 7 or 8 years. On the other hand we have sexual acts which as was pointed out by the then Prime Minister are private acts for the bedroom and not for the eyes of the prying public. How did these two very dissimilar positions come to be equated as the “rights and freedoms” of religion opposing the “rights and freedoms” of any sort of sexual expressions; the latter being private matters. I fail to see the connection that is being made by distorting these two very separate, and distinct, situations. What possible connection can be made except by willfully bending rational thought? The Law really should not make itself completely absurd.
commented 2015-07-05 16:56:28 -0400
“Who gave the Law Societies, and you, the right to tell Christians that they can’t have a school for them? Why does it have to be against gays, why can’t it just be pro-Christian?”
Why, nobody. But the LAW Society probably expects a LAW School to function within the LAW, and refrain from discrimination solely on the basis of sexual orientation. With all respect to Maurice, pointing to the original language of the Charter is a form of originalism popular among conservatives, but without legal basis.
commented 2015-07-05 16:53:32 -0400
" Now, you missed responding to my final question. "
No, I didn’t, although we’ve discussed this in a couple of threads. My last response was to point out that your distinction between “gay” rights" and “Christian” rights made no sense, in that a number of gays are Christian. Any decision on the relative priority comes, I suppose, down to a discussion of specific cases, which is what we’re doing here. So sorry – but as phrased, your question is unanswerable (at least, in meaningful terms.
“This is why you aren’t liked here Terry.”
LMAO. Awww. And I was SO hoping to be liked. (Good grief, TC. Snap out of it.)
“Terry, if you’re in legal trouble and need a lawyer, are you going to ask if he or she is a graduate of a school that respects the rights of gays to have sex with each other?”
I think you missed my response to Eileen.
" that doesn’t represent a discriminatory distinction as long as the gay couple has options regarding the school they go to."
Sorry; that’s like arguing that blacks aren’t discriminated against by a restaurant that won’t serve them as long as they can get served elsewhere. Wrong.
commented 2015-07-05 15:53:57 -0400
Allow me to be the first to respond to Terry’s question about gay vs straight sexual relations: no, that doesn’t represent a discriminatory distinction as long as the gay couple has options regarding the school they go to. Said gay couple would know before paying Trinity one red cent that that’s the condition, so when there are hundreds of other schools that will give comparable service without the conditions why go there? How about this: instead of arguing about how many angels are on the pinhead, why not find one, single identifyable victim of this horrible crime against humanity? What’s the name of the gay person who suffered some loss because of this policy? This is why you aren’t liked here Terry, nobody likes it when someone who isn’t directly involved tries to tell someone how to run their lives. Gay people have choices, but the Law Societies, with your blessing, are creating a situation that will take choices away from Trinity. I’ll put it in language that socialists can’t ignore: this ruling ISN’T FAIR to Trinity, or to Christians. Who gave the Law Societies, and you, the right to tell Christians that they can’t have a school for them? Why does it have to be against gays, why can’t it just be pro-Christian?
commented 2015-07-05 15:30:41 -0400
Also Terry, not one of your arguments addresses the point made my Maurice, the best and most direct point made in this whole argument; that this whole issue is caused not by Trinity or even by the gays, it was caused by the various Law Societies overstepping their mandates. Terry, if you’re in legal trouble and need a lawyer, are you going to ask if he or she is a graduate of a school that respects the rights of gays to have sex with eachother? I wouldn’t. And I have no problem stating publicly that IMHO anyone who does is about as stupid as a person could be and still draw breath. The Law Societies in question here should just keep to their mandate and keep their noses out of whatever rules any individual school has that has nothing to do with the law and/or it’s application. How far is this intrusive and illogical argument going to be allowed to go? School uniforms? Bilingualism in the courts (oops, already there!)? And another tangent touched on; the muslims? I don’t know of any muslim law schools in Canada, but I’m pretty sure there are a few in the States. I’ll bet they’ve got a few harsher penalties there for homosexuals than expelling, KWIM?
commented 2015-07-05 15:18:27 -0400
“If these same people who wish to obtain a law degree from Trinity, go to another university and obtain it, does that make them less Christian?”
“Does that make them less capable of becoming a lawyer and practicing?”
“Is there a declaration that they must solemnly testify to that states that they NOT practice law as a Christian?”
“Does that mean that the Law Society must now “weed” out any lawyers and judges that are Christians and forbid them from practicing law?”
“Does that mean that as a Canadian citizen I can demand to know if the lawyer or judge that hypothetically may handle my case is not affiliated with ANY religion whatsoever in order to ensure that religion plays no role in my court case?”
I hope that answers your questions. But I don’t think you’ve quite grasped what’s at issue here. May I ask you one question?
1) Does barring a gay married couple from having sex while students, and NOT barring a straight married couple from having sex while students, represent a discriminatory distinction?
commented 2015-07-05 15:16:47 -0400
Terry, welcome back. Now, you missed responding to my final question. I assert that you are in favour of the concept of gay rights trumping Christian rights. Not saying you’re anti-Christian, just that if it comes down to preserving the rights of a gay person at the cost of denying rights to a Christian, you side with the gays. That’s the theme of Brian’s column (remember why we’re all here!) and it’s what I’m getting from your posts. Right or wrong?
commented 2015-07-05 14:51:57 -0400
For all those who argue that Christians are NOT facing discrimination under the Charter, let me pose some questions: If these same people who wish to obtain a law degree from Trinity, go to another university and obtain it, does that make them less Christian? Does that make them less capable of becoming a lawyer and practicing? Is there a declaration that they must solemnly testify to that states that they NOT practice law as a Christian?

Does that mean that the Law Society must now “weed” out any lawyers and judges that are Christians and forbid them from practicing law? Does that mean that as a Canadian citizen I can demand to know if the lawyer or judge that hypothetically may handle my case is not affiliated with ANY religion whatsoever in order to ensure that religion plays no role in my court case?
To me this smacks of a “tempest in a teapot”!
commented 2015-07-05 10:24:01 -0400
Joan, thanks, but no, I haven’t left the forum. I’ve been out staking my Jerusalem artichokes, diving the Conestoga at Cardinal, and barbecuing.
Back when I was blogging more regularly, I learned a very neat trick necessary to maintain sanity. Some people commenters can be reasonable interlocutors, and some can can be adolescent (or pre-adolescent jerks). Most wobble between the two. So when someone starts getting stupid, I just don’t read their comments for a bit. Saves time and blood pressure. Once they recover, they often return to adulthood. Then it’s time to reengage with them. Peter’s been slipping over the edge a bit lately, but I think he’s salvageable.