TWU in the Supreme Court: Why this may be the most important case of the decade for Religious Freedom

28 Nov 2017 TWU in the Supreme Court: Why this may be the most important case of the decade for Religious Freedom

TWU Case: On the feature today, an interview with ARPA’s Director of Law and Policy, on oral hearings before the Supreme Court of Canada this Thursday and Friday in the Trinity Western case.

In the news..

Parental Rights affirmed in two rulings: There were two important affirmations of parental rights in education last week; one in a court in Ontario, the other in a Committee at the United Nations.

In Vitro Fertilization: ARPA has released a new policy report on the ethical ramifications of In Vitro fertilization.

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Parental Rights affirmed in Ontario

Derek Ross, Executive Director of Christian Legal Fellowship

The Ontario Court of Appeal has released a decision in a case with major implications for parental rights in education. A father in Hamilton – referred to in court document only as “E-T” – had asked the Hamilton Public School Board for advance notification when certain subjects were to be taught at his children’s public school so that he could remove those kids from classes if the content conflicted with the family’s sincerely held religious beliefs.

A lower court had turned down the request, and this week, a 3-judge panel of the Ontario Court of Appeal issued its ruling in the case. In essence, the court ruled that while the father had parental rights, the evidence in this case wasn’t strong enough to support his request.

Derek Ross is the General Counsel and Executive Director of Christian Legal Fellowship. He appeared before the court as an intervenor in support of the father, and he says the ruling is a mixed result. “(The father) agreed that the acceptance of others is a necessary virtue to teach,” but he didn’t want his children to be “indoctrinated” in the view that acceptance of others requires full endorsement of their choices.” Ross says the court ruled that in this particular case, it doesn’t appear that this actually occurred in the classroom. “There didn’t appear to be any evidence that this sort of teaching had actually transpired.”

However, Ross says the court was clear about parental rights generally. “They said ‘if there is evidence that students are being pressured to abandon their religious convictions or being taught in such a manner that undermines the parents’ ability to transmit their faith to their children, the result could very well have been a different one.’”

Ross says the court made two key findings in support of parental rights. “First, the majority (of the court) made it very clear that parents have primary authority for making decisions about the wellbeing (of) their children, and that the state’s authority is secondary to that parental right. And they also said that the authority of the state to educate children is a ‘delegated authority’, and that delegation comes from parents.” Ross says that means the court clearly affirmed the right of parents to choose homeschooling or independent schools, and that no one “has to participate in public education.”

The case may not be done yet. There’s a possibility the evidentiary ruling on the father’s specific complaint could be appealed to the Supreme Court of Canada.

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Parental Rights affirmed at the United Nations

A surprise vote last week at the United Nations Committee on Social, Humanitarian and Cultural issues. There are 174 countries represented on that committee, and grouping of countries primarily from Africa blocked a resolution affirming the rights of children to self-determination when it came to sexual and reproductive health issues, and also inserted language that insisted on the primacy of parental rights when it came to issues of sex education. Several member states reaffirmed their belief that parents must play a central role in education, with Singapore’s delegate stressing that the upbringing of children was best done by parents and legal guardians. The motion on parental rights passed by a vote of 90 to 76; the United States and even the Russian Federation voted in favour. Incredibly, Canada opposed the motion.

For more on the resolutions, go here and here.

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ARPA's new policy report on In Vitro Fertilization

ARPA Canada lawyer, John Sikkema

ARPA is out with a new “Respectfully Submitted” Policy Report. This one deals with In Vitro Fertilization (IVF). Lawyer John Sikkema says there’s still considerable debate about the ethics of the practice itself, but the report doesn’t address that issue. He says the report acknowledges the fact that there are ethical discussions underway about the very practice of IVF, but doesn’t address that issue directly. Rather, he says, it deals with policy issues that flow out of the fact that IVF is going on. “The ethical standard that is at the core of this report is that the intentional destruction – or even the negligent or wanton destruction – of human life is unethical.” The report, he says, tries to answer questions about “how (we are) dealing with embryos created outside of the womb, what’s happening to them, what is their connection to their genetic parents… and what are they being used for. So we deal with things like experimentation, discarding embryos, freezing embryos, and those kinds of things.”

The report has been distributed to lawmakers across the country. Sikkema says there hasn’t been any response indicating that anyone wants to take up the cause, but ARPA will be undertaking a lobbying campaign in the New Year to get lawmakers to address the fact that there are “a lot of gaps” in current legislation on this issue.

You can find a full copy of the policy report online here.

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LN Feature: TWU in the Supreme Court - Why this may be the most important case of the decade for Religious Freedom

ARPA's Director of Law and Policy, André Schutten

ARPA’s Director of Law and Policy, André Schutten, is due to appear before the Supreme Court of Canada this week. ARPA has been granted intervener status in two Trinity Western University appeals regarding the establishment of a Law School in British Columbia. Oral arguments in the case begin on Thursday of this week. On the feature this week, an interview with André on the event of the hearing.


LN: So, two days from now, the Supreme Court of Canada starts its hearings on the Trinity Western University case. For folks who may have just arrived on this scene late, run through some of the fundamentals here. What’s this about?

AS: Essentially, Trinity Western University – a Christian university – wants to start the first-ever Christian Law School. It’s actually the first-ever religious law school that’s not one of the pre-existing 22 secular law schools in Canada. And they were approved to do that by both the National Federation of Law Societies of Canada as well as the Minister of Higher Education in BC. Both of those bodies determined that Trinity Western’s Law School program, as proposed, was completely compatible with the practice of law in Canada. However, three Law Societies – in British Columbia, in Ontario, and in Nova Scotia – all said “Well, we don’t like the Community Covenant at Trinity Western. We don’t like that this is a Christian University that takes their faith seriously and requires their students and their staff to live according to Biblical virtue.” And because of that, they said “We will not recognize that law degree.” So this has been challenged in the courts in BC, Ontario, and in Nova Scotia. At the lower level – at the Courts of Appeal – and now two of the matters, the Court of Appeal decision in BC, where Trinity Western won, and the Court of Appeal decision in Ontario, where Trinity Western lost; both of those two decisions have now been appealed to to the Supreme Court of Canada, where they hopefully will answer the question for us in a clear way: “Can Law Societies discriminate against Trinity Western University and its law degree simply on the basis of its faith commitment?”

LN: ARPA is an intervener in this case; we’ve been granted the intervener status. What’s the fundamental point of the arguments that ARPA is bringing to the table?

AS: I want to focus in on that question of “discrimination”. The other side on this issue, they keep saying that Trinity Western University is the one who discriminates. They say that their faith community or their faith covenant discriminates against particularly LGBTQ individuals, but also against others. And my argument is that: “No-no-no, the discrimination that’s happening here – in this case – is not against LGBTQ people, but against evangelical Christians who associate with Trinity Western University.” And the discrimination that’s happening is by State actors; by the Law Society in BC and the Law Society in Ontario. That’s a proper understanding of discrimination. But discrimination and association are two sides of the same coin. Freedom of Association is protected in the Charter – in Section 2 (d) – so to associate with other people of like mind. as Trinity Western is doing. that requires in a sense setting a distinction between yourselves and others. That’s what association means. It’s actually a logical and necessary component of Freedom of Association. And so, in order to understand which side of the coin you’re looking at – is this legal “discrimination” or is this “association”, freedom of association? – you need to follow legal tests, legal analysis, in order to come to that decision. You don’t follow emotional gut feelings. You follow legal tests, and that’s where we’re hoping to direct the Supreme Court to really focus in on. “What is the legal test? The law is on the side of Trinity Western. Follow those legal tests and Trinity Western should win.”

LN: There’s another wrinkle here. The President of Trinity Western (Bob Kuhn) sent a letter to the alumni earlier this month, and I’m just going to quote from it here, briefly. He says:

The Law Society of Upper Canada (Ontario) now says that (the Supreme Court) must reject Trinity Western not just because of (the) position on marriage…” (in other words that Community Covenant…) “but also because of (the University’s) ‘distinctly Christian’ environment. In its written argument filed with the Supreme Court, the Law Society highlighted every part of the Community Covenant it found discriminatory. (And) the first two highlighted words were ‘Jesus Christ.'” (President Kuhn writes that) “It has become apparent that along with the Christian virtues that we commit to practice, the law society also wants to prohibit the very faith that distinguishes the University.”

I guess first of all, is this a new development – a new wrinkle – in this case? And secondly, how do you read that whole thing?

AS: It’s definitely a new development. I mean, that argument has not yet been made in the lower courts, and in a sense I’m actually kind of confused by it. It seems to me that the Law Society of Upper Canada is overplaying their hand by suggesting that a Christian University cannot be Christian. Cannot say that they confess faith in Jesus Christ. That to me is absolutely ridiculous. I mean surely Freedom of Religion would suggest that we can believe – not just personally and privately in the privacy of our own homes or our own bedrooms, that we believe in Jesus Christ – but that can shape our entire life, and that we can confess that publicly and not be punished or marginalized or treated differently because of it. So it seems to me an overplay on the side of the Law Society of Upper Canada. But at the same time, it’s basically a twisted view of secularism. It’s a view that thinks – and this is actually quite dominant in Quebec out of their cultural tradition of the last 60 years or so – and that is a particular view of secularism.

So there’s two different views of secularism. One is a view of secularism that’s very pluralistic. It says that the civil state – the government – will not take a position on religion, but it’ll allow all faith traditions to contribute in a robust way out of their own faith tradition, and do so freely. But there’s another, much more radical form of secularism – which is being reflected in that argument by the Law Society – which says that secularism means to stamp out all religious expressions of faith, and to make everybody “neutral” by eliminating any references to faith. And that’s a wrong view of secularism. It’s not been endorsed by our Supreme Court yet; in fact, they’ve endorsed the opposite. They’ve endorsed a type of secularism that’s pluralist, and that allows all faith communities to express themselves out of their tradition without compromise.

LN: So you’ve got two more days; I’m assuming all the arguments are pretty much together, and you’ve rehearsed what you’re going to say. What can folks do between now and Thursday and as this thing progresses?

AS: There’s only one thing left to do, Al, and that’s to pray. You know, the lawyers can prepare as best they can, but at the end of the day this is a decision that rests with nine judges, sitting on the Supreme Court – the nine most powerful legal minds of the country. And we know that “In the hands of the Lord is the heart of the King“,  and I would say the heart of the nine Supreme Court judges, and He can direct them as He sees fit. So we entreat our listeners to please pray for wisdom for these judges; for minds and hearts that are open to the concerns of the Christian community in this particular case. And pray that God would continue to protect religious freedom in this country not so that Christians can live a life of ease, but so that the Gospel can go out in Canada unaffected, unhindered, so that many more Canadians can come to know the love and joy and peace of Jesus Christ.

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