Bryan's Liberty Blog

Blogging for freedom.

The War on Religious Freedom

A few years ago, gay marriage was the big new battleground for the progressive left. Many conservatives argued that allowing homosexuals to marry each other would damage the institution of marriage itself. I didn’t care much much either way because I always considered marriage to be a matter for individual religions to decide. Now that gay marriage is well established in Canada it is apparent that it is a much bigger threat to religious freedom than I had thought.

For left wing activists the gay marriage issue was just a step in their assault on traditional christian institutions. While gay marriage is the law in Canada and in increasing numbers of U.S. states, we are now seeing gay marriage being used to erode the fundamental rights of christians to live in accordance with their basic beliefs.

The Law Society of Upper  Canada, the Nova Scotia Barristers’ Society and the British Columbia Law Society have all voted to bar graduates of the Trinity Western University law school from practicing law in their jurisdictions. They have made use of the legalization of gay marriage in Canada as a pretext, claiming that Trinity Western University’s position on gay marriage amounts to unlawful discrimination against gays. Lets be clear, TWU isn’t barring gays from admission to the university, its not even blocking married gays from applying. What TWU is doing is expecting gay students to sign on to the same values pledge as all other students of the university. The values in the pledge are consistent with the belief system of most evangelical christians including a pledge not to engage in pre-marital or extra-marital sex, drinking and drug use on campus. The pledge permits sexual activity between married couples, but the university doesn’t recognize gay marriage. This is consistent with the views of most evangelicals and Catholics that sexual relations between people of the same sex is sinful. In order to accept that gay married couples can engage in sex while attending the school, TWU would have to abandon one of the fundamental religious beliefs of its students and faculty.

Through a series of Supreme Court of Canada cases, the right to gays to be treated equally under the law is well established under s. 15 of the Charter of Rights and Freedoms. Through the action of the provincial and federal Human Rights Acts, that is extended to equal treatment by private business interests like Trinity Western University. In cases of religious organizations there is a potential conflict between s. 15 and section 2(a) of the Charter which guarantees freedom of conscience and religion. If it can be said that the Human Rights Act has to recognize equality rights for gays under s. 15, then surely it must also recognize freedom of religion under s. 2 of the Charter.

In 2001, The Supreme Court of Canada (Trinity Western University v. British Columbia College of Teachers [2001] 1 S.C.R. 882, 2001 SCC 31) ruled in favor of the accreditation of Trinity Western University against the British Columbia College of Teachers which had claimed that its policies as a religious based institution would lead to discrimination. With respect to the alleged discriminatory impact of the university’s code of conduct, the court said (paragraph 25):

To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15  would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.

and further along (paragraph 33)

Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.  The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.

The court distinguished between freedom of belief and conduct and found that the freedom of student’s to hold certain beliefs is broader than freedom to act on them (paragraph 36):

Instead, 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.  Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected.

Despite the clear direction given by the Supreme Court of Canada, The Law Society of Upper Canada and other law societies have denied accreditation to the TWU law school and have as a result discriminated against the religious freedoms of its students and faculty.

The claim is apparently based on the belief that legalization of gay marriage in Canada has changed the rules for religious organizations. I disagree. If the standard it to determine whether the voluntary code of conduct for students at TWU will foster discrimination in the legal profession by graduates of the school, that test clearly fails the same way as it did against the B.C. College of Teachers. As for treating gay married students differently from other married students, the test is between freedom of belief and freedom of action. There is nothing prohibiting gay married students from attending the university, but they must agree to abstain from activities that the evangelical college considers to be sinful.

None of this has stopped the provincial law societies from engaging in anti-christian bigotry. This has made me wonder what will be the next battle in the war between gay activists and evangelical christians over the issue of gay marriage.

Canada’s Civil Marriage Act recognizes marriage as a “lawful union of two persons to the exclusion of others” without regard to the gender of the parties. Section 3 of the Act purports to protect religious freedom by stating that “it is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs”. That seems like a common sense rule, but we have to remember that the solemnization of marriage is governed by the provinces under section 92 of the Constitution Act, 1867.

In Ontario that solemnization is governed by The Marriage Act, R.S.O. 1990, Chapter M.3. Section 20 of the Act gives authority to the Minister of Consumer and Business Services to register any person to solemnize marriages. That authority is permissive, not mandatory, meaning the Minister can refuse to register any person.

This is where freedom of religion is threatened once again with respect to gay marriages. Acting on an expanded view of rights to gay marriage, the Minister can simply decide that he won’t grant registration to members of any church that refuses to conduct gay marriage ceremonies. This isn’t in conflict with the federal law, because no one is forcing anyone to conduct a gay marriage, they are instead denying them the authority to conduct any marriages. The result will be forcing members of evangelical churches and Catholics to attend civil ceremonies in addition to their religious ceremonies if they wish to be legally married in the province of Ontario.

No one has proposed this yet, but it is a natural progression to the denial of freedom of religion being promoted by left wing gay activists.