National Post Editorial by ARPA’s Legal Counsel



August 1, 2013

Even the Faithful are CitizensAndré Schutten, National Post, Aug 1 2013: The National Post article by Clayton Ruby and Gerald Chan, speaking against Trinity Western University (TWU) and its proposed law school, made for interesting reading. But it not a clear representation of Canadian constitutional law. Indeed, the argument suffered from many misleading claims, not to mention wishful thinking and outright errors in fact. While “debunking” so-called myths perpetuated by the National Post’s Jonathan Kay in his earlier piece supporting TWU, the two lawyers themselves misstate the law.

Let’s take it point for point.

In their first “correction” of Kay, Ruby and Chan suggest, “Few Christians accept that homosexuality is a moral evil.” With the greatest of respect, Ruby and Chan are hardly experts on the Christian religion. Most practicing Christians are more likely than not to have traditional or orthodox views on marriage and sexuality. But this isn’t any of Ruby and Chan’s business, nor is it the business of the government or the courts. The Supreme Court made it quite clear in its 2004 ruling in the case of Syndicat Northcrest vs. Amselem that to pry into the sincerely held religious beliefs of citizens is inappropriate.

Ruby and Chan then reprimand Kay by quoting from the 2001 Trinity Western Supreme Court case. “Heed these words!” they say, “The Court said, ‘The proper place to draw the line in cases like the one at bar is generally between belief and conduct … The freedom to hold beliefs is broader than the freedom to act on them.’ … Barring students from a law school is action, not mere belief.”

But didn’t the Supreme Court allow TWU to do just that in the 2001 case? In fact, the Court ordered the B.C. College of Teachers to give accreditation to TWU, despite the fact that the school was exercising this covenant. So, did the Court misapply its own rules in the very case it was deciding at that moment? Obviously not.

Ruby and Chan try valiantly to avoid the absurdity of their position by suggesting that, in law, a Teachers College and a Law School are two incomparable institutions. Apparently, teachers can be religious, but not lawyers.

“The legal system,” they say, “has no history of religious affiliation. Instead, our legal tradition has always emphasized a strict separation of Church and State.”

Well, no. It hasn’t. The strict separation of Church and State is an American concept that only really begins to appear in Canadian jurisprudence post-1982. In Canada, there is a rich history of religious affiliation in the legal profession and it’s a pretty direct (though at times symbolic) link. To mention just two: it is plastered all over the Magna Carta of 1215, and it is found in Canada’s Head of State, the Queen, who also happens to be … the head of the Anglican Church.

More fundamentally, the doctrine of the separation of church and state was created to protect the church from the state. Forcing a religiously guided institution to violate its own beliefs, or else be cut off from engaging in the public square, suggests that these two lawyers see this “separation of church and state” as a one-way street.

They also fail to understand what a secular state actually is. The Supreme Court has been clear that secularism is an inclusive, not an exclusive, concept. Everyone, including the faithful, has a right to engage in public life on an equal basis.

Finally, Ruby and Chan argue that TWU’s policy targets not just homosexual behaviour, but homosexual people, citing the recent hate speech case from the Supreme Court,Saskatchewan (Human Rights Commission) v. Whatcott. They explain that characterizing the issue as one of behaviour rather than identity is “an old trick that bigots have long used to mask their views.”

However, they are selective in their quoting of the Supreme Court. In the paragraph before the one to which they refer, Justice Rothstein states, “I agree that sexual orientation and sexual behaviour can be differentiated for certain purposes.” Do Ruby and Chan intend to suggest that Justice Rothstein, and the five Supreme Court justices who signed their name to his judgment, are “bigots” who are “masking their views”?

A lifestyle covenant is something that an individual willingly takes on for himself or herself

Furthermore, the evidence does not back up Ruby and Chan’s claim. There are a number of homosexual men and women who attend TWU. Herein lies the false assumptions made by Ruby and Chan (and even by Kay, though to a lesser degree): All assume that it is the school imposing the community covenant on the students, a large institution discriminating against small individuals. But that’s not the way a covenant works. A lifestyle covenant is something that an individual willingly takes on for himself or herself.

Canadians who share a moral code and wish to embark on a corporate enterprise together, guided by that code, are protected by the Charter’s guarantee of freedom of association. That freedom, to be clear, includes an absolute protection of the constitutional rights of individuals when those rights are exercised in common with others.

That’s what TWU is: More than 4,000 individuals who see value in governing themselves according to a certain code that happens to be religiously informed. There is no harm in that. If Clayton and Chan feel otherwise, they’re welcome to start their own law school. I won’t do anything to stop them.

André Schutten is a lawyer with the Association for Reformed Political Action (ARPA) Canada. He is completing his LL.M. degree in Constitutional Law this summer, focusing on religious freedom and freedom of association.


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