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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Matthew 16:18
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.
LOL. Nope, you got that exactly backward.
Ooh La Ramadan a Ding Dong. VOTE PC.
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.
Excellent. You’ve grasped the notion that it’s not an anti-Christian stance: it’s an anti-bigotry stance. You’re making progress!
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.
“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.
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.
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.
Nope.
“Does that make them less capable of becoming a lawyer and practicing?”
Nope.
“Is there a declaration that they must solemnly testify to that states that they NOT practice law as a Christian?”
Nope.
“Does that mean that the Law Society must now “weed” out any lawyers and judges that are Christians and forbid them from practicing law?”
Nope.
“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?”
Nope.
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?
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”!
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.