Advocating for the freedom to engage in the public square
Bruce J. Clemenger is President of The Evangelical Fellowship of Canada.
How does our Supreme Court view religious organizations and their place in Canadian society? We can get a rough understanding from the Wall and TWU cases, heard by the court within four weeks of each other last November, the decisions handed down within two weeks this spring.
While there has been much commentary about the Trinity Western University decision, the other significant decision has gone relatively unnoticed. The Wall case (www.TheEFC.ca/WallCase) dealt with whether courts have any jurisdiction in the internal affairs of religious organizations (based on a disciplinary membership decision of a Calgary Jehovah’s Witness congregation).
The Supreme Court was unanimous in its Wall decision – courts have a very limited role in reviewing internal decisions of private organizations and do not have, to quote the court, the "legitimacy nor institutional capacity to deal with contentious matters of religious doctrine." The decision clearly reaffirms longstanding tradition on such matters.
This case was not decided based on the religious freedom guarantees of the Charter of Rights and Freedoms, but on the competence of courts regarding matters of religious doctrine.
In keeping with that hands-off approach, the legality of the internal policies at a Christian university in Langley, B.C., was not challenged in the TWU decisions (www.TheEFC.ca/TWULaw). TWU’s Community Covenant Agreement, an internal document at the focus of the case, remains lawful under the provincial human rights codes, and the freedom to be a Christian university was not in dispute or challenged by the court.
The majority of judges who ruled against TWU made it clear they were not addressing the broader issue of whether TWU could have a law school. At issue was the how the covenant, which TWU has long required all faculty and students to sign, would affect prospective gay and lesbian law students. The court found this would pose a barrier to them, because the covenant does not permit sexual intimacy outside marriage between a woman and a man.
This decision, the court emphasized, is based on the facts of the case, including the unique place the profession of law plays in society, the limited number of spaces in law schools and the specific role of law societies. It means that TWU could well have a law school, but it would need to amend the covenant or make it voluntary. In August TWU announced it has made the covenant voluntary for students, although has not confirmed it will proceed with a law school.
The Supreme Court’s TWU decision was very disappointing. It consists of a divided analysis with five agreeing on one set of reasons, two (including the chief justice) writing their own reasons for siding with the law societies, and two writing a forceful dissent.
In future the majority decision may assist where a state actor (anything from a government department to the arms-length law societies) requires affirmations or activities that violate an individual’s religious beliefs or conscience, thereby creating barriers to full participation. However, while religious organizations can have their membership policies, and while policies may be lawful, government agencies in certain circumstances may be justified in withholding accreditation or public benefits if the policies are deemed to be contrary to Charter values.
Some of the arguments made by the majority in reaching their decision are deeply troubling, and we will need to address those in future cases.
The dissenting arguments in the court’s decision expressed deep concern over the reliance on Charter values. The dissent forcefully argued that Charter values are prone to ideological bias.
This case highlights the importance of articulating the essential elements of living with religious and moral diversity without excluding minorities, who dissent from majoritarian views, from contributing to the public good and participating in the public square.
The EFC’s interventions in the courts, participation in public forums, and other initiatives provide avenues for the evangelical community to participate in these formative debates. We do so drawing from our deep and rich evangelical tradition and the experience of Evangelicals in Canada and globally, bringing the wisdom of biblical principles and seeking blessing for our neighbours.
The challenges we face as nonconformists within the broader culture are new to us, but not for our faith. Our witness in various spheres of life, animated by love for God expressed by love for neighbour, remains our faithful response while we navigate these unchartered waters.
Listen to our Aug. 17 interview with TWU president Bob Kuhn on TWU’s recent decisions and future plans at www.TheEFC.ca/Podcasts.
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