Faith groups take on secular society in court, with mixed results

Feature | by Gregory Beatty

From the Trinity Western University case to the Canada Summer Jobs attestation to the Gay Straight Alliance case in Alberta to the sentencing of two Bountiful elders for polygamy, religious freedom has been in the news a lot lately.

It’s an area fraught with tension. Believers are naturally anxious to be true to their faith and, under s. 2 of the Charter of Rights & Freedoms, they have that right.

But other people have rights and freedoms too. And that’s where things get complicated.

Yes, religion is listed in s. 2 as a fundamental freedom. But so too are thought, conscience, expression, peaceful assembly and more. Other constitutional provisions guarantee the right to life, liberty and pursuit of happiness (s. 7), and freedom from discrimination and equality under the law (s. 15).

When they weigh these different Charter rights and freedoms, courts start from two principles. First, no right is absolute, as s. 1 allows for “reasonable limits” that can be justified in a “free and democratic society”. Second, there is no hierarchy of rights. Rather, says University of Saskatchewan law professor Ken Norman, they are interrelated, interdependent and indivisible.

“The core idea is that one right does not trump another,” says Norman. “It’s the old John Stuart Mill principle. Your right to do as you will is protected in a liberal society, but if you do harm to others your right can be limited.”

Rights & Wrongs

One recent high profile case concerned a dispute between Trinity Western University and the B.C. and Ontario Law Societies. TWU, which is a Christian university, decided to establish a law school. To be considered for admission or employment, students, faculty and staff would have to sign a covenant that prohibited “sexual intimacy that violates the sacredness of marriage between a man and woman”.

Same sex marriage has been legal in Canada since 2004. As well, marital status is a prohibited ground of discrimination in human rights legislation. Concerned about future lawyers (and maybe later even judges) being educated in such an exclusionary environment, the law societies decided to deny accreditation to school graduates.

TWU sued, but in a 7–2 decision, the Supreme Court of Canada found in favour of the law societies.

“Chief Justice Beverley McLachlin, in her decision, didn’t discount the faith community’s freedom of religion claim to run their own university,” says Norman. “However, when that claim doesn’t just concern how you conduct yourself within the community, but instead involves a covenant that might bring harm to another person or cause them to suffer discrimination, then the balance tips.”

Some commentators decried the June 15 decision as a blow to freedom of religion, but Norman rejects that characterization. Instead, he says Canadian courts have traditionally shown strong deference to faith communities.

Just two weeks earlier, in fact, the Supreme Court unanimously affirmed the right of a Calgary Jehovah’s Witness congregation to shun a member. The plaintiff was a real estate agent, and after he was expelled, his business tanked, so he sued to be readmitted to the congregation.

He was originally expelled because he admitted to being drunk twice and verbally abusing his wife. He argued at trial that was due to stress from an earlier congregation decision to expel his 15-year-old daughter, and the pressure they applied on his family to evict her from their home and shun her.

Despite those heartrending circumstances, says Norman, the court sided with the congregation.

“The court said ‘Sorry friend, this is a private matter within the faith community and their rules are not up for adjudication by us.’”

Again, though, religious freedom is not absolute. In late June, two Latter Day Saints elders in Bountiful, B.C. were sentenced to three and six months, respectively, of house arrest after being convicted of polygamy. They argued at trial that multiple marriages were allowed in their faith, and that their religious freedom right shielded them from prosecution.

“That’s a hard case, because this group lived in its mountain valley and didn’t bother anyone for a long time without the state sticking its nose in and saying ‘Just a minute, we think there’s something abusive going on here’,” says Norman. “But after a constitutional reference and a decision by a B.C. Supreme Court judge, a prosecution did go ahead.”

A key factor in the case is that girls as young as 15 were being taken as brides by men decades older than them, which raises obvious issues of consent and child abuse. Within the legal community, in fact, there is debate about whether that would’ve been a better charge to avoid casting legal shade on adults who live in consensual polyamorous relationships.

“That would’ve been my preference, to say the clear focus is the harm being done to these girls who are essentially being brought into a breeding program where they’re being illegally transported across the Canada/U.S. border to enhance the gene pool,” says Norman. “That’s a prosecutable matter, it seems to me, that has better focus than seizing on polygamy.”

More Litigation

Christian and other faith groups are also up in arms about a provision added by the federal Liberal government to the Canada Summer Jobs program that requires applicants to attest that their “core mandates” respect the Charter rights of all Canadians.

The vast majority of applicants have had no problem complying. But for religious groups that have moral misgivings about issues such as LGBTQ rights and a woman’s right to reproductive choice, it’s objectionable. So they’re suing, arguing the requirement infringes on their freedom of religion and speech.

In January, they failed to get an injunction to suspend the attestation until the case can be heard.

The same fate recently befell another group of Christian activists who are upset about a privacy provision in the Alberta NDP government’s Gay Straight Alliance legislation.

The provision is designed to protect students who don’t feel comfortable telling their families that they’ve joined a GSA. Plaintiffs argued in court that it infringed on the rights of parents to control their children’s religious and moral education — with some alleging GSAs were “ideological sex clubs” where students were exposed to “graphic information and materials”.

The judge who denied the injunction said there was no proof GSAs caused harm. Instead, evidence shows they reduced casual sex and drug use, improved academic performance and provided a sense of safety and psychological well-being for students.

Why Now?

From the early days of colonization and settlement through to the mid-20th century, Canada was generally considered to be a Christian nation. In a lot of ways, that identity was reflected in our values, laws, societal rituals and institutions.

Now that we live in a much more diverse society, both in terms of religious belief and support for secular thought and constitutional rights, that privileged position is being reined in.

And that’s got Christians worried, Norman suspects.

“There is a sense, I think, of feeling threatened,” says Norman. “Being led by what’s going on in the United States [see sidebar], we’re seeing more litigation around religious freedom. There are well-funded religious groups who are taking an aggressive stance that they’re entitled to stand against what the Charter requires, which is that there be no discrimination.”


Stars, Stripes & Crosses

Separation of church and state is enshrined in the U.S. constitution but in practice, religion has played a role in American politics for a long time. Take the late evangelical preacher Billy Graham, for example: he was a spiritual advisor to every president in the post-WWII era from Harry Truman to Barack Obama.

In recent decades though, that influence has grown dramatically. It started in the 1980s with Jerry Falwell, Anita Bryant and Phyllis Schafly, who crusaded against the changes happening in the wake of the civil rights movement and counter-culture era.

Fuelled by a growing media presence that extended beyond televangelism to current affairs and entertainment, the Moral Majority movement found common cause with small-c conservatives of various stripes, and morphed into the Christian Right.

From school boards, town councils and state legislatures, the Christian Right moved on to Congress and the Senate, and now, in President Donald Trump, who drew huge support from evangelicals in the 2016 election, they’ve reached the pinnacle of power in Washington.

Climate change denial, rejection of science and evidence-based decision-making, support for growing income inequality (via the Prosperity Gospel), resurgent racism, homophobia and misogyny, uncritical support for Israel (driven by a Biblical prophecy about Armageddon), gun rights, punitive justice — it’s impossible to overstate the Christian Right’s impact on American society today.

And if Trump follows through on a campaign promise to exempt churches from the Johnson Amendment , a 1954 law banning political activity by tax-exempt organizations, it could expand further. Churches already enjoy privileged tax status, such as not paying property taxes and being registered charities, and critics say revoking the law will turn them into political machines.

Through Trump, the Christian Right is also on the cusp of tilting the U.S. Supreme Court firmly to the right for decades to come. Rolling back the 1973 Roe v Wade decision on reproductive choice is one goal. A second is to expand the scope of religious freedom as wide as possible.

Canada is seeing activism like that now, says University of Saskatchewan law professor Ken Norman. “It’s worth looking at the Justice Centre for Constitutional Freedoms (JCCF) in Calgary. They are litigating the GSA challenge, and they’ve got other Charter challenges to assert freedom of religion and expression against universities and student unions who deny access to right to life groups.”

As it happens, one of the two dissenters in the TWU case, Justice Russ Brown, was on the JCCF’s advisory council before his appointment to the Supreme Court by Conservative PM Stephen Harper.

Overall during the Harper years, says Norman, the court was attacked for being too liberal, even though most of the judges were Conservative appointees.

“We don’t have the type of partisanship they do in the U.S., yet,” says Norman. “But there are those who want that because of the obvious power to say something definitive on issues such as reproductive choice and LGBTQ rights.”

For a preview of what that would look like, just look south of the border. /Gregory Beatty