Loyola decision protects religious freedom

"Church and state can work together for the common good"

In 2008, as part of the continued secularization of the Quebec school system, the province adopted a mandatory Ethics and Religious Culture (ERC) Program to replace religious education in schools. A statutory provision gives Quebec’s Minister responsible for education the discretionary ability to grant an exemption from the ERC program if a school offers an alternative, equivalent program. Loyola, a private Catholic high school run by the Jesuit order for over a century, applied for and was denied an exemption because the proposed program would be taught from a Catholic standpoint and not from a neutral position.

The objectives of the ERC program are the “recognition of others” and the “pursuit of the common good”.  Through the program’s three components - world religions and religious culture, ethics, and dialogue - students are expected to develop attitudes of openness, diversity, tolerance and respect. They are to learn the skills necessary for engaging in respectful dialogue with others who hold differing views. Loyola had no quarrel with the goals and competencies of the provincially mandated ERC program but wanted to teach from the Catholic perspective that animates the school.

The Court found that the minister failed to proportionately balance the objectives of the ERC program and the religious freedom of the individuals of Loyola’s faith-based community. The minister erred in her presumption that the ERC program could only be taught from a secular, neutral stance. Loyola’s version of the curriculum could achieve the goals and the competencies of the ERC program.

While the justices of the Court ruled unanimously in Loyola’s favor, they were split 4-3 on the remedy. The majority referred the matter back to the Minister for reconsideration, while the minority recommended that Loyola be allowed to proceed with its proposed program.

In the majority decision, Justice Abella writes, “Preventing a school like Loyola from teaching and discussing Catholicism, the core of its identity, in any part of the program from its own perspective, does little to further the ERC Program’s objectives while at the same time seriously interfering with the values underlying religious freedom.”

At the same time, the decision reaffirms the role of the state in administering education in religious schools. The state does not have “to abandon its objectives by accepting a program that frames the discussion of ethics primarily through the moral lens of a school’s own religion.”

Writing for the minority, Chief Justice McLachlin and Justice Moldaver did not see a problem with the discussion of ethics occurring through Loyola’s Catholic lens. “Loyola’s teachers must be permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way. Loyola’s teachers must maintain a respectful tone of debate, but where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.”  To prevent them from doing so would render Loyola’s teachers “mute.”

I welcome the Supreme Court decision from my perspective as a Catholic who supports faith-based schools and the rights of individuals who choose those schools. I welcome it, too, as a former teacher with experience in both the Catholic and public school systems, and as a Canadian who values the freedoms of our secular democracy. 

Lauded as a victory for religious freedom, in my view, this decision strikes a balance between religion and secularism. On one hand, the Court affirms the legitimacy of the state in prescribing and regulating curriculum in religious schools. State oversight helps to prevent religious indoctrination and the intolerance that accompanies it. On the other hand, the decision protects freedom of religion. A religious school may teach from the perspective of its tradition and doctrines provided its beliefs or practices do not “conflict with or harm overriding public interests.”

At a time in Canadian history when the courts are frequently asked to rule on cases that pit religion and secularism, Loyola serves as a reminder that church and state can work together for the common good.

Law Societies regulate conduct, not beliefs

BC Lawyers oppose a Faculty of Law at TWU

At a special June 10, 2014 meeting of the members of the Law Society of British Columbia, 3,210 lawyers voted against approval for a Faculty of Law at Trinity Western University, while 968 lawyers voted for its approval. While the vote seems to indicate overwhelming opposition, the majority of the 13, 114 members of the Law Society did not cast a ballot. 

The special meeting was called because a requisite number of lawyers were dissatisfied with the April 11, 2014 decision of the Benchers, who are responsible for governing the Law Society, to approve the law school at TWU for the purposes of the Law Society’s admissions program.

Non-binding vote

The vote, however, is not binding on the Benchers. In a press release following the special meeting, President Jan Lindsay, QC said, “The decision regarding whether to admit graduates from the proposed law school at TWU is a Bencher decision,” adding that, “however, the Benchers will give the result of today’s members meeting serious and thoughtful consideration.”

The Benchers’ decision came after an extensive process of consultation, and a thought-provoking debate that touched upon issues of equality, discrimination, freedom of association, religious freedom and the rule of law. I watched the debate live, and in my view, the Benchers arrived at a principled decision regarding a contentious issue that involves the conflicting Charter rights of two disparate groups.

The opposition to TWU is based on a clause in the university’s “Community   in Covenant” agreement which upholds a traditional view of marriage as between one man and one woman. Students, faculty and staff agree to abide by the covenant. Many, as the vote of BC lawyers indicates, object to this clause as discriminatory, and tantamount to placing a sign at the gate stating that LGBTQ people are not welcome.

TWU has right to its beliefs

While I dislike the idea of a university requiring its members to sign a covenant that governs the most intimate aspects of their lives, TWU has the right to uphold a particular view of marriage, and those who share the institution’s beliefs have the right to congregate and associate with others of like mind. 

I share the opinion of the BC Civil Liberties Association, an organization that has a record of supporting the rights of LGBTQ persons but who took the position, “to deny (TWU’s) application based on the university’s Community Covenant would infringe the Charter-protected freedom of association and religion of members of the faith-based private university”, adding that these are fundamental freedoms and “that’s what s. 2 of the Canadian Charter of Rights and Freedoms is all about, protecting our freedoms of association, of assembly, of belief and of expression.” (For greater depth, see also the BCCLA Submission to the Law Society of BC. )

In 2001, in Trinity Western University, the Supreme Court of Canada determined that the BC College of Teachers could not deny education graduates of TWU admittance to the teaching profession based on religious beliefs about homosexuality that were unacceptable to the College.

Unfair to assume a lack of professionalism because of a belief

There is no evidence that teachers trained at TWU fail to professionally and competently exercise their teaching responsibilities when employed in the public school system. Similarly, there is no reason to assume that future graduates of a law school at TWU will be incapable of upholding the laws of the land and representing the rights of clients of all persuasions.   If an individual lawyer trained at TWU should prove incapable of doing so, the public can reasonably expect that the Law Society will deal with that person according to the remedial and disciplinary procedures already in place for lawyers who fail to faithfully represent clients and honorably serve the cause of justice.

In my opinion, for a law society to deny candidates admission to the legal profession because of a religious belief that is socially anathema to a percentage of its existing membership is unjustified, and is discriminatory in its own way.  In the absence of evidentiary proof that TWU’s traditional view of marriage and its code of sexual conduct does harm to others, graduates of its law school should be eligible for admission to the BC bar.

The Law Society of BC is properly concerned with the training, qualification, ethics, competency and conduct of its members. It is not its task, however, to regulate belief by excluding those with whom some of its members disagree. 

No easy answers in TWU's bid for a law school

There are no clear winners when the rights of disparate groups compete. Sometimes it is necessary to balance Charter rights against each other. Thoughtful discourse can help sort out the issues. In the Law Society of BC April 11, 2014 debate, we have an informed  discourse.

Equality vs. religious rights

When equality and religious rights butt heads, as in the controversy over the proposed law school at Trinity Western University, Canadians need thoughtful analysis and informed discussion, not knee jerk reactions. The recent decision of the Law Society of BC to approve the proposed Faculty of Law at TWU provides a principled approach to a thorny problem.

Although the proposed law school at the privately funded Christian university has received approval from the BC Ministry of Advanced Education, the Federation of Law Societies of Canada, and various provincial and territorial law societies, there remains considerable opposition to it. A lawsuit has been filed against the BC government for approving the school, and, a BC lawyer has circulated a petition to members of the BC Bar that could force the Law Society to reconsider its decision.

At issue is a clause in TWU’s “Community Covenant Agreement” that reads,
“Further, according to the Bible, sexual intimacy is reserved for marriage between one man and one woman…”

A sincerely held religious belief

The Community Covenant Agreement at TWU is a roadmap for personal and community conduct. It is rooted in the faith of the community and based on the institution’s acceptance, as expressed in its Community Covenant Agreement, that the Bible is “the divinely inspired, authoritative guide for personal and community life”.  All faculty, staff and students at TWU agree to abide by the community covenant, and to model themselves after biblical virtues as interpreted according to the university’s evangelical Protestant tradition.

There can be no doubt that the traditional view of marriage and sexuality expressed in the Community Covenant is a sincerely held religious belief, and in keeping with its beliefs, the university requires a level of sexual restraint from all its members, regardless of sexual orientation.  Nevertheless, the implications of the clause discriminate against the enrolment of LGBT persons, and have called into question the university’s ability to properly train individuals, who, as lawyers, must swear an oath to uphold the rights and freedoms of all people.

Because of this clause, the proposed Faculty of Law at TWU raises complex questions about religious freedom, freedom of association and equality. Those who are interested in the specific arguments will find a thought provoking analysis of the issues in the archived webcast of the Law Society of BC debate (http://new.livestream.com/mediaco/lsbc041114), as well as in the BC Civil Liberties Association submission to the Law Society (http://bccla.org/wp-content/uploads/2014/03/20140302-Submission-Law-Society-re-TWU.pdf).

A process that rigorously examined the issues

As the deliberations of the Law Society of BC make clear, there are no easy answers when the rights of two disparate groups conflict. The Benchers of the Law Society waded through approximately 2000 pages of material in preparation for making a decision. In what I would describe as a rigorous examination of issues and opinions, the Law Society considered legal advice from a number of advisors, Federation reports, the proposal from TWU and close to 300 submissions from the public, which were nearly evenly divided for and against TWU. 

Because rights and freedoms are not absolute, it is sometimes necessary to balance them against each other. In the balancing act, there are no clear winners, as the Law Society debate illustrates; TWU did not come out smelling like a rose even though the Benchers voted in its favour.

Informed debate can help us become more tolerant

Whether we agree or disagree with the decision to approve a faith-based law school at an institution that covenants with its members to uphold a traditional view of sexuality, the process of respectful and informed debate can help us more comprehensively grasp nuanced issues, and lead us to a more compassionate understanding of those whose beliefs, lifestyles, and identities differ from our own.

The controversy over the proposed law school at TWU is an example of the tension that exists in Canadian society between religious rights and equality rights.  This tension is not going to go away. No matter on which side of the fence we find ourselves, we need to work at respecting the rights of others and honoring the spirit of the Charter of Rights and Freedoms. We cannot “live and let live” only when the manner of living falls into line with our worldview. To do so runs the risk of swapping one form of intolerance for another.