Last week, Canada’s Supreme Court told my alma mater, Trinity Western University, that it could not open a law school, because it adheres to Christian teachings about human sexuality. The nation’s top Christian liberal arts school requires students and faculty to affirm they will reserve intercourse exclusively for marriage to someone of the opposite sex.
Accreditation institutions refused to accredit the university’s law school due to its adherence to Christian teachings, and the court upheld their refusal. It is worth noting that LGBTQ people who graduated from Trinity Western have spoken publically and positively about their education at the school.
Trinity Western’s is only the most recent in a string of cases, in both the United States and Canada, highlighting the tension between two important competing goods: preventing discrimination (Trinity’s Community Covenant disallows sexual intimacy outside of marriage, not dissimilar from that of the United States’ Wheaton College or Brigham Young University) and protecting religious freedom.
This tension is difficult to resolve because neither of these interests can be casually dismissed. Banning graduates of Trinity Western’s law school from entry into the legal profession was undoubtedly motivated by an important interest: protecting LGBTQ people from discrimination. But members of the Trinity Western community also have an important interest in freely exercising their religious beliefs.
Because these interests are so important, it is imperative that judges approach these cases with humility and respect for both sides. Unfortunately, that did not happen here. The court’s five-judge majority opinion acknowledged that Trinity Western’s “freedom of conscience and religion” was burdened by demands it compromise its religion to obtain accreditation, but it concluded that this burden was “of minor significance.” Why? Because the Community Covenant was “not absolutely required for the religious practice at issue.”
With this statement, the court presumed to tell Trinity Western what is and is not integral to the practice of their faith. This is a worrisome development for anyone committed to religious liberty, regardless of what one thinks of the ultimate merits of Trinity Western’s claim. When judges assume the power to dismiss certain religious practices as “unimportant,” believers of all stripes are left to wonder whether their practices will someday be brushed off as mere ancillary rituals.
In America, the federal Religious Freedom Restoration Act explicitly excludes the centrality of religious beliefs from judicial inspection. As the U.S. Supreme Court explained in Hobby Lobby v. Burwell: “it is not for us to say that their religious beliefs are mistaken or insubstantial.”
This contrast underscores Americans’ and Canadians’ different views of individual rights and government power. I was born in the United States but grew up in Canada, and Canadians tend to more readily accept government involvement in their lives. The two countries’ founding documents exemplify this dissimilarity. While America’s founders undertook a violent revolution to secure natural rights to “life, liberty and pursuit of happiness,” the stated purpose of Canada’s constitution is to preserve “peace, order and good government.”
Politics in a democracy is always partially about competing goods—here, religious freedom and freedom from discrimination. In previous decisions related to TWU, Canada’s Supreme Court carefully sought to balance these goods. But not this time.
As we learned last month when Sarah Huckabee Sanders was asked to leave a restaurant, people on both sides of the political spectrum desire to exercise associational liberties. This is a strength of our society, as long as it’s not misused. As religious liberties scholar Vincent Muñoz recently noted about the free association with friends or business relationships,
[O]nce people believe that individuals will use their freedom badly — that they will refuse to associate with others for irrational and bigoted reasons — the commitment to freedom of association begins to evaporate. Very few will remain partisans of liberty when it produces widespread injustice in practice. A free people must be a moral people to exercise and maintain their freedom.
Whether we are in Canada or in the Land of Opportunity, politics in a democracy is always partially about balancing competing goods. Beyond citizens themselves, it is the role of both courts and lawmakers to balance these goods.
Living in a pluralistic society requires limiting the ways government can act. If these constitutional limits are to mean anything, they must mean that the government—including judges—cannot be the arbiter of the theological importance of people’s beliefs.
