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A Crack in Canada’s Constitutional Bedrock

Unlike the United States, Canada has experienced no high court rulings on the question of when individuals or organizations may conscientiously refuse to provide goods and services that would amount to endorsing or celebrating LGBTQ rights. In other words, there has been no Canadian equivalent to Masterpiece Cakeshop.

The closest to a recent Canadian equivalent was a case about the proposal to open a law school at Trinity Western University in British Columbia. The proposal sparked controversy within the Canadian legal profession because Trinity, a private Christian university, has a code of conduct that prohibits sexual intimacy outside of traditional marriage. The clause, many argued, unjustly discriminated against LGBTQ persons and rendered the law school inaccessible to them. Trinity, in reply, cited religious freedom as guaranteed by Canada’s constitutional bill of rights: the Canadian Charter of Rights and Freedoms.

In 2018, a majority of the Supreme Court held that bar associations in Canada, in exercising their statutory mandate to govern the legal profession in the public interest, could lawfully refuse to license graduates of the law school due to the impact of the impugned clause in Trinity’s code of conduct on the LGBTQ community. The law school did not open, and the prospect that the ruling might apply to Trinity’s other professional programs influenced the university to subsequently make the code of conduct optional for students.

In diverse societies like Canada and the United States, disagreements between individuals arise constantly on countless issues. At times, these disagreements engage our understanding of what is true and false, right and wrong, good and evil. We regularly discuss and debate these matters. It is only natural to want others to see and then live what is good, right, and true.

But if we do not persuade others to embrace our beliefs, we generally agree to disagree. We do not impose our beliefs, no matter how correct we consider them to be. This posture of tolerance—of “live and let live”—is foundational to a free and democratic society. The ruling in Trinity Western exposed a troubling crack in this part of Canada’s constitutional bedrock. This defect, if left unremedied, enables legal outcomes and social interactions that are antithetical to the kind of democratic pluralism that the Charter seeks to protect.

This cornerstone of liberal democracy—robust tolerance—is under further pressure in a lawsuit between an LGBTQ group and a Catholic parish in White Rock, British Columbia. The White Rock Pride Society requested to use the event hall at Star of the Sea Parish for a 2019 fundraiser during Pride week. Star of the Sea refused because, in the view of the parish, the proposed use of the space would contradict certain teachings of the Catholic Church.  

As a Catholic faith community, Star of the Sea believes that marriage is the comprehensive and lifelong union of one man and one woman, and that sexual intimacy may only occur within that union. The general stance of the Catholic Church (as well as Pride) on these issues is well known. White Rock Pride says that Star of the Sea cannot enforce these beliefs when it rents the hall to the public, and disputes the view that Pride events contradict Catholicism.

White Rock Pride filed a complaint under British Columbia’s Human Rights Code, a statute that prohibits discrimination based on sexual orientation (and other grounds) in the provision of services to the public. If the parish had a genuine, reasonable justification for declining White Rock Pride’s request to use the hall, the lawsuit will fail. The British Columbia Human Rights Tribunal, after being asked to dismiss the complaint for having no reasonable prospect of success, ruled that it merits a full hearing.  

The Tribunal, in making that ruling, determined that the case is not resolved by precedent. In 2005, the Tribunal decided that a Catholic group could refuse to rent its event hall for the reception of a lesbian couple’s wedding if the refusal is courteously communicated. The present case does not involve a wedding reception, and White Rock Pride appears intent on emphasizing that distinction. But the animating principle in both cases is inescapably the same: an organization need not rent its property for the celebration of an event or promotion of a cause that conflicts with its identity and core beliefs. 

Anti-discrimination laws are not tools for coercing others to adopt our worldview—be it liberal, conservative, progressive, or another.

Some might argue that by making its event hall available to the public, Star of the Sea cannot allow certain events and disallow others based on its beliefs. This argument not only lacks sufficient nuance for a pluralistic society committed to tolerance, equality, and basic freedoms. It is also prone to abuse and tactical deployment, animated by opposition to unpopular beliefs instead of serving as a principle of general application.

What if White Rock Pride owned an event hall and, like Star of the Sea, rented it for various functions in service to the community? What if Star of the Sea did not own a hall and asked to use White Rock Pride’s hall for a gala to promote Catholic beliefs on marriage and family? I suspect all of us would say that White Rock Pride could refuse the rental. It would be unjust, even cruel, to require White Rock Pride to grant Star of the Sea a platform on its own turf to advance these beliefs. If that is true, why must Star of the Sea rent its hall to White Rock Pride?

Any answer which relies on the correctness of White Rock Pride’s beliefs or the incorrectness of Catholic teaching misses the point. Supporting Star of the Sea’s freedom to sustain its identity does not hinge on approving Catholicism. It is coherent, in a free and democratic society, for a person to reject Star of the Sea’s beliefs on marriage and family yet support the parish’s refusal to rent its hall to a group that holds opposing beliefs and wants to use the hall to advance them.

Anti-discrimination laws are not tools for coercing others to adopt our worldview—be it liberal, conservative, progressive, or another. They do not empower majorities to ostracize minorities. These laws, in the context of providing services to the public, target invidious and unjust discrimination. If we wish to convince others of our views on a given issue, we should use the proper means in a liberal democracy: dialogue, debate, and discourse.

For these interactions between citizens to stand any chance of being constructive, we must view our interlocutors as friends—yes, friends—rather than foes. This should lead us to reject the very idea of engaging in a so-called “culture war.” War always leaves destruction in its wake, and friendly fire is especially tragic. There are benefits to be drawn from viewing those with whom we disagree as fellow citizens first and foremost, not as sworn enemies. Only good can come from shifting the paradigm of culture wars to one in which we acknowledge our disagreements but begin from the standpoint that our convictions, though divergent, stem from a common desire for human flourishing. Such a shift, if made by all sides, promotes consequential debate on consequential matters of shared concern.

Say what you will about Star of the Sea’s beliefs on marriage and family, but its refusal to host White Rock Pride’s gala is not malicious or arbitrary—just as White Rock Pride’s refusal to host the parish’s hypothetical gala on marriage and family would not be. In both cases, the refusals stem from a desire of the group to honor—to not betray—their core beliefs.  

If we are serious about inclusion and diversity, about building a society that truly lives up to these ideals, this type of freedom deserves greater latitude. “Tolerance and accommodation of difference”, the dissenting judges in Trinity Western University noted, “serve the public interest and foster pluralism.” It is troubling that, increasingly, this idea appears to be accepted only where the “difference” that asks for tolerance enjoys the favor of the majority—or, perhaps more precisely, the uncompromising minority within the majority.

The freedom to manifest core convictions in the public square is surely not absolute, but in the case of Star of the Sea the law should respect it. More importantly, before the law gets involved, we as citizens should live up to its tolerant spirit in our dealings with each other.