Whatever happened to the valid free exercise of religion?

National Affairs Rory Leishman

 In opposing the establishment of a law school at Trinity Western University (TWU), the Canadian Council of Law Deans have demonstrated once again that they, like our judicial masters in the courts, have renounced both freedom of religion and the rule of law. In a letter to the Federation of Canadian Law Societies, the deans charge that TWU discriminates against “gay, lesbian or bisexual students” by requiring all students to  sign a “community covenant agreement” to uphold the traditional principles of Judeo-Christian morality including abstention “from sexual intimacy that violates the sacredness of marriage between a man and a woman.” On this basis, the deans call upon the Federation not only to reject TWU’s application to establish a law program, but also “to investigate whether TWU’s covenant is inconsistent with federal or provincial law.”

As it happens, the Supreme Court of Canada rejected this kind of argument in Trinity Western (2001), when the Court sanctioned the creation of a teachers’ education program at TWU and, in so doing, implied that the university’s covenant constitutes a valid exercise of freedom of religion under section 1 of the Canadian Charter of Rights and Freedoms.

Given this precedent, the naive might suppose that TWU also has an undoubted constitutional right to establish a law school. The law deans know better: they understand that Canada’s top court is infested with judicial activists who have scant regard for precedents.

And that’s just fine with the law deans. And the same goes for most Canadian law professors, three of whom maintained in a commentary published by the National Post on Jan. 2 that Trinity Western is obsolete. “It has been 12 years since that decision, and much has changed,” the professors claimed. “Today, a decision of the Federation to deny the request of TWU (for a law school) would be held to a different standard — a standard that recognizes the increased Charter protections for gays and lesbians today.”

Is that right? Over the past 12 years, have Parliament and the provincial legislatures amended the Charter to include enhanced protection for gays and lesbians?

Not at all. There is not now, and never has been, any mention of gays and lesbians in the Charter. Regardless, in Egan v Canada (1995), the Supreme Court of Canada overturned the express will of Parliament by unilaterally reading a provision for equality rights for homosexuals into the Charter. Now the country’s trendy law deans think it’s time for appointed judges rather than elected legislators to change the law again, by decreeing that a private Christian university like TWU no longer has a constitutional right to establish a law school.

Even the 2001 Trinity Western decision constituted an illegitimate exercise in judicial law-making inasmuch as the Supreme Court of Canada warned in this ruling: “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.”

Ian Hunter, emeritus professor of law at Western University, pointed out in a commentary for the Globe and Mail, that with this ruling, our judicial dictators warned the Christians at TWU: “You are free to be hearers of the Word but not doers; you may render unto God when on campus but only to Caesar off campus. By their deeds no one shall know them.”

Of course, it’s not just Christian teachers and lawyers whose rights are under increasing attack. Over the past 15 years, Canada’s  so-called human rights commissions and the courts have decreed that Christian marriage commissioners have no right in conscience to refuse to marry same-sex couples; that Christian mayors have no right to decline to issue gay pride proclamations; and that Christian print shop owners have no right on religious grounds to refuse to print items that promote homosexuality as a safe and legitimate alternative lifestyle. The Ontario Human Rights Commission has even gone so far as to suggest that Christian physicians have no right to refuse to participate in abortions.

Meanwhile, in the United States, judicial activists have likewise constricted the provision in the First Amendment to the United States Constitution that Congress shall make no law prohibiting the free exercise of religion. Despite the plain words of this clause, the United States Supreme Court arbitrarily decreed in Employment Division v. Smith (1990), that Congress and the state legislatures can regulate religious practices through laws of general application that apply to all citizens regardless of religious belief.

Both liberals and conservatives in the United States Congress were outraged. But rather than meekly acquiesce to this lawless exercise in judicial activism, they enacted by overwhelming majorities in both the House and Senate the Religious Freedom Restoration Act (RFRA), which President Bill Clinton signed into law in 1993.

In essence, the RFRA provides that the government cannot place a burden on a person’s exercise of religion unless the government can demonstrate that the burden represents the least restrictive means of advancing a compelling public interest. This is a tough test that the government can rarely pass except in cases like a decision to override the refusal of a parent on religious grounds to permit a minor child to undergo a life-saving blood transfusion.

In Gonzales (2006) the United States Supreme Court upheld the constitutional validity of the RFRA in relation to federal laws. Now, it remains to be seen if this same court will uphold the right of Christian employers under the RFRA to refuse on religious grounds to provide insurance coverage for abortifacient drugs as mandated by the Obama administration.

Meanwhile, in view of the example set by the United States Congress in enacting the RFRA, Canadians are left to wonder why our legislators cannot likewise exercise their undoubted powers under the notwithstanding clause of the Constitution to assure that our judges fulfil their duty to uphold the laws and the Constitution as enacted and originally understood.