Category Archives: Law

Establishment of Religion

Human rights, Law, Philosophy/Ideas, religion

Recently I posted about the establishment of religion clause in the US. We don’t have such a clause in our constitution but we do have a clause guaranteeing religious freedom, which has been interpreted to include freedom from religion.

I like the English philosophers who often went by the name of liberals.  Today, liberalism is a bad word in many circles—particularly in the United States. I find it very congenial. I am not talking about the Liberal party in Canada or the Democratic Party in the US. I will leave that for another day. I am talking about small “l” liberalism.

I think the philosophy of liberalism was started in England by John Locke, who lived mainly in the second half of the 17thcentury. That’s a long time ago, but I think its important. Locke’s ideas were borne in the crucible of English politics during this time. That history had important effects on liberalism. And it is important today, though too often forgotten.

The Reformation and the problem of religious minorities was central to Locke’s political philosophy because those were the burning issues (literally burning issues) of his times. By the 1680s there was clear political unrest in England. Until then this was not an issue all values were shared because everyone in Europe was a Roman Catholic. Until then the issue of minority rights did not arise for there were no minorities. After that political theorists had to figure out how can we live in a society together when we don’t all share the same values? We are still trying to solve that problem.

The religious wars of the 17thcentury were incredibly bloody and Locke and the liberals did not want to see them repeated. In the 21stcentury we should be no less vigilant.

2 years ago, Chris and I attended a lecture at the University of Manitoba by Professor Steve Lecce. I have often thought of what he said. He said, that the key question of modern and contemporary political theory is, according to Lecce, “How should we live together in society when we don’t all share the same values?”

According to traditional liberals, the state is not an instrument for pursuing common goals, but rather an institution that allows each of us to pursue our own personal goals while living in society with those who have different objectives. Where values diverge, as they now inevitably do in any post Reformation society and in particular in modern societies that include immigrants from around the world, how can we live together in peace and harmony without resorting to might is right or without resorting to the ability of the majority to dominate? Liberals say that there are some things the majority or the powerful should not be able to do. Instead we will have a method of settling disputes fairly. The state in such circumstances has to be like a referee or umpire. That is why the state must remain neutral between religions for example. It should not assist one religious group to establish its religion over others.

This was very important in the Reformation when religious freedom was the critical issue of the time. It is still important. It is particularly important in places like Steinbach where religion is very important. The Reformation splintered the dominant religion and cleared the way for new problems that were irrelevant before then when everyone agreed.

Until the Reformation a common religion bound us all so that this was not an important issue. Religion until then was the social glue that kept us together. After the Reformation, religion became an explosive issue that could blast society apart. And it often did. It still often does that. Before the Reformation religion was the basis of societal trust.  After the Reformation religion became an instrument of distrust. We still live in this post-Reformation world.

There were 2 possible solutions to this problem of religion after the Reformation:

 

  • A religion can be imposed by force or power to achieve religious unity. This was tried with great vigor in the religious wars of the 17th The result was great misery and abject failure. John Locke developed his philosophy just after those wars which were burned into his memory. Unfortunately, now many of those memories are vague or forgotten.
  • The second possible solution is the radical idea proposed by liberals like John Locke–toleration. That had never been tried before. It was truly deeply revolutionary. It is important to remember this when modern liberals are often seen as dull and boring theoreticians. In the 18thcentury this idea was profoundly revolutionary. Many hated the idea of tolerance because they saw it as capitulation to evil.  Liberals said we had to accept differences.

 

Nowadays toleration, a value that was revolutionary in its day, and I would submit, is revolutionary today, can seem like very thin gruel compared to the spicy virtues reflected by much more aggressive and powerful advocates like ISIS, Boko Haram, Donald Trump, and their ilk. It can seem wishy-washy just like–well—liberals. The liberals stand for permitting others to have their say. This is much less sexy than threatening to ban them, or build a wall to keep them out, or kill them. However, in a world charged with the most vicious of religious hatreds like that of Europe in the 17thcentury or our current world in the 21stcentury, tolerance is not wishy-washy at all. After all the 17thand 20thcenturies were the two most violent centuries in the past 500 years according to Steven Pinker. [2]Tolerance is the most vital of all the virtues! Liberals should step to the plate with vigor and confidence. Liberals actually represent our best chance for civilization to endure.  At least so liberals believe.  At least so I believe.

In the 17thcentury there were those who feared the worst from this revolutionary new idea of tolerance.  Would this not lead to the destruction of public morality?  Personal morality should never be permitted to undermine public morality, it was widely believed. This in fact is the essence of Conservatism! It is stillthe essence of conservatism.

It is still vitally important in a community like Steinbach today as I write.         Recently, our little community has been challenged by a young Lesbian couple who wanted the schools in our area to teach about all families and not ignore the diverse kinds of families like theirs. They want respect. They do not demand acceptance, but they want to be recognized. Many in my community–the modern conservatives–believe sincerely that this can lead to the disintegration of the modern family and with it our cherished western society. The conservatives don’t want to tolerate the lesbians. They feel that this will lead inevitably to the disintegration of all that they hold dear. This is classic conservatism.

Liberals challenge this view. Liberals hold that we can each freely have our own personal opinions and morality without challenging the social order or value of society. Let people disagree. We can all get along provided each of us accepts limits. We must tolerate each other even when we believe others are wrong. This will not destroy society. In fact modern liberals, like Justin Trudeau, believe that the diversity of modern society will strengthennot weaken society.

That means that we must put reasonable limits on our religious values too. We can hold them personally as much as we want, as vigorously as we want, but we cannot impose those values on others. The social value of imposing religious values was rightly discredited after the religious wars of the 17th century. We don’t want to go back there. That is why we in Steinbach must accept same sex marriage as a permitted alternative life style that must be respected, even it is not accepted. This respect will not destroy society it will strengthen it. To live in society we must respect others even when we disagree with them. That is why traditional liberals say that no religion should be established by the state. Everyone should be absolutely free to choose whatever religion they want, including no religion at all. Then we might be able to live together even when we have fundamental disagreements. If we learn tolerance we have a chance of living together. If we don’t we stand no chance.

Many people on the religious right today seem quite willing to permit a religion to become established by the state, provided of course it is their religion. Mennonites at one made a similar principle at the heart of their own position about religion and politics. They knew from profound personal experience how an established religion, such as the Catholic religion in their case, could be used against them to try to beat down their rights to practice their own religion. Nowadays, too many of Mennonites have forgotten this important lesson as they try to impose their own religious views on others. This is what they have done in Steinbach.

A good friend of mine said I must be “even-handed”. I agree. He suggested I had not considered those who advocate imposing Sharia law on us here in the west. Actually I have never encountered that, but if it happened here I would denounce it just as strongly. Muslims too must learn the benefits of tolerance. All of us must.

Religious freedom to discriminate: Law Society of British Columbia and Trinity Western University and Brayden Volkenant

Law, religion, ,

 

Many people in my community have become very excited about the case of Law Society of British Columbia and Trinity Western University (‘TWU’) and Brayden Volkenantwhich together with a similar case in Ontario went all the way to the Supreme Court of Canada (‘SCC’) for a decision about how religious freedom and the right to be free from discrimination worked together in Canada. It is always difficult for courts to reconcile 2 conflicting freedoms. In this case at issue was the right of the TWU community to religious freedom and the right of members of the LGBTQ community to be free from discrimination. Both are important rights protected by the Charter. Should one override the other or should one be bent in favor of the other?

To evangelical Christians in my community this was a crucial case. They felt their religious freedom was at stake. I heard that the Southland Church, the largest evangelical church in town, , held a fast and vigil the night before the decision was announced. Their prayers went unanswered.

TWU is an evangelical Christian postsecondary school that sought to open a law school that would require its students to sign a Covenant Agreement (‘Covenant’) that prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.” That covenant prohibits conduct throughout the 3 years of law school even when students are off campus in the privacy of their own homes.

The Law Society of British Columbia (‘LSBC’) is the regulator of the legal profession in BC and implemented a resolution declaring TWU’s proposed law school was not an approved faculty of law because of its mandatory covenant. It felt that the covenant was discriminatory against the LGBTQ community and others. TWU and one of its students made an application to court to compel LSBC to approve its law school arguing that its failure to do so violated its religious rights protected by s. 2(a) of the Canadian Charter of Rights and Freedoms (‘Charter’). The SCC upheld the decision of the LSBC and hence the proposed law school is notapproved in BC. Other provinces may follow the same course of action.

Was the SCC right or are the protesters at Southland right? The reasons of the court were long and complicated. I would recommend that anyone interested in this subject read those reasons in their entirety. It is difficult to fairly précis the decisions. All in all 7 SCC judges agreed with LSBC and 2 dissented agreeing with TWU.

The nub of the matter is that law school seats are a treasured benefit. Hundreds of people, across Canada apply for each seat. TWU would have had 60 seats available for its graduates and it was clear to all that TWU’s Covenant would have effectively closed the door to the vast majority of LGBTQ students. Those who would have been able to sign the Covenant would have had 60 more law school seats per year to apply for than LGBTQ students. In short LGBTQ students would have fewer opportunities relative to others. Should that have been allowed? The majority of the SCC said “no”. The SCC held that this would undermine true equality of access to legal education and by extension the legal profession. According to the majority of the SCC “substantive equality demands more than just the availability of options and opportunities–it prevents the violation of essential human dignity and freedom” and “eliminates any possibility of a person being treated in substance as ‘less worthy’ than others.”

TWU admitted that eliminating the mandatory Covenant, which is what LSBC required, would not prevent any believing member of their community from adhering to their beliefs. Rather it said removing the Covenant was an interference with their members’ beliefs that they must be in an institution with others who shared or respected their practices on sexual relations.

The majority of the 7 judges (5 of them) disagreed with TWU holding that the impact of the decision of the LSBC was “of minor significance” to the religious freedom of the TWU community.  The Chief Justice McLachlin and one other judge  admitted it was of morethan minor significance. butnonethelessagreed that the Covenant could not lawfully be required. I find her judgment the most interesting.

First, because TWU is a private institution, the Charter does not apply to it and it is allowed to discriminate against the LGBTQ community (even though I would argue it ought not to do that because it is not right to do so). But the TWU insistence on the mandatory Covenant is a discriminatory practice because it imposes a burden on LGBTQ people solely on the basis of their sexual orientation. Married heterosexual law students can have sexual relations, while married LGBTQ students may not! The Covenant “singles out LGBTQ students” (and others I would add) “as less worthy of respect and dignity than heterosexual people and reinforces negative stereotypes against them,” the Chief Justice said. Those LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students. Heterosexual students can choose from all law schools without discrimination, where one law school would only be available to LGBTQ students willing to endure discrimination.  This, the court determined, is a harmcaused by the exercise of religious freedom by TWU.

The LSBC is duty bound to protect the public interest and preserve and protect the rights and freedoms of everyone, including the LGBTQ people. The religious freedom of TWU stops at the point where it harms others and infringes on their rights. The LSBC was within its rights to refuse to condone practices that treat certain groups as less worthy than others. I would respectfully suggest that members of the Southland Church Community should also refuse to condone such practices on the part of TWU.

The Chief Justice admitted that this decision has negative impacts on the religious freedom of the TWU community and these were of more than minor significance. Yet she accepted the position of the LSBC that it could not condone a practice that discriminates by imposing burdens on the LGBTQ community on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity, and enhancement of equality in the legal profession. The Law Society was faced with an either-or decision  on which compromise was impossible–either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices . In the end, she said, “after much struggle the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion…The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.”

While I agree completely with the decision of the Chief Justice of Canada and the other judge who agreed with her, I want to go a step farther. I want to go beyond the narrow confines of the law and the Canadian Charter. I think it is time–no it is high time–for the evangelical religious community to take an honest look at itself and its traditional practices. It is time for it to stop using religious freedom as a shield to allow it to infringe on the rights of others. That is not the purpose of religious freedom. It is time for the evangelical community to stop causing harm to others in the name of religious freedom. That is what it tried to do in this case and d it has done so over and over again in the name of religious freedom on the basis of dubious interpretations of ancient texts. The evangelical community can and should to better.