A law school that does not subscribe to progressive beliefs about gender identity and marriage should not be allowed to operate. That’s the effect of last month’s 7–2 decision of the Supreme Court of Canada. The ruling is a blow to Trinity Western University, a Christian institution near Vancouver. Trinity had developed plans for a law school.
The court’s decision vindicates the Law Societies of Ontario and British Columbia, which had blocked the law school. The law societies are quasi-governmental bodies that accredit law programs, much as the American Bar Association does in the United States.
Trinity Western’s prospective law school was initially approved by the Law Society of British Columbia and got the nod from law societies in six other provinces as well. But the influential Ontario society balked because TWU requires its students, at both undergraduate and graduate levels, to embrace a “community covenant” that excludes sex outside “the sacredness of marriage between a man and a woman.” This reflects the historic stance of the Evangelical Free Churches, the denomination that founded the school some 60 years ago.
The Ontario Law Society argued that the covenant would cause TWU’s law school to discriminate against LGBT students, thereby violating nondiscrimination principles in Canadian law. Opponents of TWU further speculated, more broadly, that the school would likely turn out lawyers unsympathetic to rights of alternatively gendered Canadians. The Ontario lawyers won their case at the provincial court level, with the Ontario Court of Appeal calling TWU’s covenant “deeply discriminatory to the LGBT community.”
TWU faced a further setback when British Columbia’s law society reversed its prior approval. Then TWU won a reversal of that reversal, in British Columbia’s top court. Both sides ultimately appealed to Canada’s Supreme Court. The school sought redress under the provision of Canada’s Charter of Rights and Freedoms, which guarantees the right to freedom of “association,” of “conscience and religion,” and of “thought, belief, opinion and expression.” In ruling against TWU, the Supreme Court said it had struck a “proportionate balance between the limitation on the Charter right at issue” and, on the other hand, the principles of legal equality and nondiscrimination affirmed in both the Charter and statutes.
While the decision appears on the surface to be about discrimination based on sexual orientation, in fact it hinges on the meaning of marriage. TWU is even-handed about orientation. Those who identify as gay and those who identify as straight face exactly the same restriction: no sex outside marriage. The problem arose because TWU continues to affirm that marriage can properly exist only between a man and a woman — as the school has always believed, and as its associated churches have always believed.
Had Canadian marriage laws not changed in 2005, TWU’s policy could generate no equity complaints. TWU did not change its theology to match the change in public law. Would anyone, of any viewpoint, admire a religious group that trimmed its theological sails every time the social, political, or legal climate changed?
Adhering to current law in your capacity as lawyer or judge does not strip you of your liberty as a citizen to seek legal reform.
But what about the broader objection? Might TWU produce lawyers who are hostile to the rights of self-identified gay (or alternatively gendered) citizens? The question can be redirected: Is it possible that other Canadian law schools, dominated by secular progressivism, are turning out lawyers and future judges unsympathetic to the rights of citizens with a traditional religious outlook?
Intriguing as such questions are, they can be set aside. Any serious law school ensures that its students are exposed to all points of view, and teaches its attorneys-to-be their professional responsibility to adhere to the law as it is, not as they might wish it to be. There is every indication that TWU’s law curriculum would operate in exactly this way. The ideological breadth of its existing curricula in other disciplines reinforces that assumption.
Moreover, adhering to current law in your capacity as lawyer or judge does not strip you of your liberty as a citizen to seek legal reform. Lawyers operate on the basis of current law, but when they are not representing a client or acting under the authority of a court, they are free to advocate change. Anyone ever seated on a jury understands the simple distinction between one’s opinions and the law that controls the case at hand.
So does the broader case against TWU’s law school — that it might turn out lawyers who are skeptical of progressive gender concepts — imply a new argument? Is the argument now that Canadian lawyers must comprehensively relinquish beliefs unsanctioned by government? A detached bystander could be forgiven for wondering whether legal coercion of belief is really the goal after all.
Others might reply: We’re not requiring that private, voluntary institutions such as TWU hold government-prescribed beliefs about gender and marriage, only that they operate as if they held them. Otherwise they might foster beliefs that do not square with legal norms. Moreover, those who defend the Supreme Court’s decision might say, we wouldn’t dream of dictating what beliefs a person holds inside his own cranium, so long as they do not affect his actions in public.
Medieval scholastics were faulted for drawing distinctions not nearly so fine.
Could something like the TWU decision occur under U.S. law? Yes. U.S. courts, and some state legislatures, have begun to ratify the conceptual apparatus of progressive gender-identity theory. The paradigm is the U.S. Supreme Court’s ruling in Obergefell v. Hodges (2015). Justice Anthony Kennedy built the majority opinion on the assumption that sexual orientation is a naturally given category of being, parallel to, say, race or ethnicity, or to biological sexual identity (i.e., as male or female). Consequently, individuals are entitled to nondiscrimination and equality protections with respect to their sexual orientation no less than to their identity according to those other categories. In Justice Kennedy’s mind, his conclusion followed directly from his conceptual premise: How could any people be denied access to the legal status of marriage just because of who they are? (Of course, it would be logically possible to affirm and protect sexual-orientation identities while reserving the formal category of marriage for opposite-sex couples; “what marriage is” could be regarded as just as much of a fixed reality as “who people are.” But that is another discussion.)
To state the obvious, the conceptual apparatus of progressive gender theory does not appear in the text of the U.S. Constitution or of the Canadian Charter of Rights and Freedoms. To be fair, neither does the older conceptual apparatus it replaced — the one that echoes the Genesis account of man as imago dei, male and female, reflected in the marital union of a man and a woman: “The two shall be one flesh.” Neither American nor Canadian framers wrote this older paradigm into their texts. No doubt they unconsciously assumed it, whether they consciously believed in Biblical religion or not. It is a fair question whether something unconsciously assumed should be treated as binding.
What constitutional framers, both Canadian and American, did explicitly write into their texts, however, was the protection of liberty — of religion, of conscience, and of association, among other freedoms.
So it is interesting to compare the Canadian TWU ruling with the U.S. Supreme Court’s decision in Masterpiece Cakeshop last May. Jack Phillips won because the Colorado Civil Rights Commission had derided, as if it was mere bigotry, his religious belief about marriage. Writing for the majority, Kennedy, author of the decision vindicating same-sex marriage, held that government officials may not, in the course of their duties, disparage as “despicable rhetoric” (a commissioner’s expression) traditional religious beliefs about marriage. Apparently the U.S. Supreme Court is not ready to equate disbelief in gay marriage with Ku Klux Klan race hatred.
The U.S. Supreme Court in Masterpiece focused on disparagement and left untouched most of that case’s substantive issues. But the surprisingly strong majority, 7–2, exposed liberalism’s guilty conscience about what same-sex marriage is doing to the rights of religion, of conscience, and even of equality. The 7–2 majority on the opposite side, in the Canadian decision in Trinity Western, is salt in the wound of that guilty conscience.
The drama and the anguish could have been minimized, and still could be.
Many gender progressives, while pleased at their success, are increasingly uneasy with the social and legal penalties faced by those who dissent from their views. In their mind, equality in gender identity was to be the culmination of individual liberty, not the dawn of new forms of coercion. The Supreme Court of British Columbia saw it this way when it had ruled in TWU’s favor in 2016, lamenting that “a well-intentioned majority acting in the name of tolerance and liberalism” can, “if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.” It was this ruling that the federal Supreme Court just overturned.
The most astute gender progressives see that their victories will not wear well if they seem to result in a totalizing campaign of coercion against those who dissent from the new state-sanctioned beliefs about gender and marriage. It is dawning on them that carefully preserving liberty of conscience for dissenters may actually reinforce their achievements and better secure them for the long haul.
The pivotal rights issue of our era has become, once again, conscience rights for disbelievers.
Modern society, both Canadian and American, is clearly divided over gender concepts. Possibly, however, a majority could agree that gay-marriage disbelievers are entitled to rights of conscience in the era of same-sex marriage. From the vantage point of history, this should be familiar territory: Disbelievers need protection for their rights of conscience and free expression, against the belief system enshrined in law.
Canadians stand culturally closer to the tradition of English religious liberty than Americans do. That tradition was created in a multi-generational effort to detoxify the effects of an established church. In historical perspective, the Canadian Supreme Court’s Trinity Western decision looks like a retrogression to an uglier era, when the Crown tolerated private liberty of belief while imposing public disabilities on those who dissented from the doctrines of the established church.
Similarly, the decision against TWU potentially puts in its crosshairs every person, and every private voluntary community, unwilling to embrace government-prescribed beliefs about issues, marriage and sexual morality, that historically have been a concern of religion. The pivotal rights issue of our era has become, once again, conscience rights for disbelievers.
Perhaps more directly than the United States, Canada carries the great and uninterrupted English legacy of liberty under law. Can the heirs of Magna Carta, of John Locke, of William Blackstone — for that matter, of John Stuart Mill — feel anything but unease at the judgment of the Canadian Supreme Court in this case?