Nature and imagination are twins, argued the great thinkers of classical liberalism.
On June 15, 2018, the Supreme Court of Canada (SCOC) disallowed Trinity Western University (TWU) (full disclosure, I am currently a professor of philosophy at Trinity Western) from launching its own law school because this private Christian school requires its students (as well as staff and faculty) to conform to its community covenant, which prohibits all sexual activity outside of heterosexual marital unions. Law societies from six other Canadian provinces had already approved TWU’s law school. Yet this case eventually landed in the laps of the Supremes in Ottawa because the law societies of Ontario and British Columbia, which have the same awesome power to decide who can be a lawyer in their provinces as other law societies in Canada, had voted to disallow the graduates of TWU’s law school from ever practicing law in these jurisdictions. In a 7-2 decision, a majority of the justices categorically sided with these two law societies, based on arguments that allowing this school to go forward would decrease the “diversity” of the legal profession as well as seriously reduce the “access” of LGBTQ students to this profession. “Significant harm” to these students would also result if they eventually attended this school as well.
When gay marriage became legal in Canada in 2005, the federal government assured religious communities that no special legal protections for their freedom were needed, since this redefinition of marriage would have zero impact on the realm of religious freedom. Had the government been telling the truth at that time, the TWU law school case would have never made it to the Supreme Court.
The rights revolution in Canada has had other radical effects in recent years, thanks to the policies of our Leviathan state. In 2017, the Liberal government of Prime Minister Justin Trudeau stipulated that only organizations that support the “reproductive rights” of women could receive public money for providing summer employment to students and youth. Translation: no money for you if you oppose abortion. Two years ago, the same government passed legislation making it virtually illegal to criticize the practice or ideology of trans-genderism. (Of course, the famous Canadian psychology professor Jordan Peterson has valiantly challenged the moral and intellectual validity of this legislation.)
In theory, a liberal democracy is not supposed to work this way. After all, the Canadian Charter of Rights and Freedoms protects both religious freedom and sexual orientation. John Rawls, in his work Political Liberalism (1993), strenuously argued for the need to “accommodate” traditional communities that may not hold liberal views on morality or religion, based on the proviso that these same communities not be allowed to impose their views on the rest of society. By the same token, a liberal regime should not impose any “comprehensive doctrine” of what is good or right upon the citizenry. Disagreements about sexual morality belong to the private sphere of life, not the public square. As Rawls argues, political liberalism does not envision society as a community in which all citizens have to agree with each other on religious or moral perspectives. Rather, debates over values must be “left to citizens individually—as part of liberty of conscience—to settle how they think the values of the political domain are related to other values in their comprehensive doctrine.” The strength of political liberalism, as Rawls defines it, is that it produces an “overlapping consensus” which allows citizens the freedom to disagree within the private sphere of life without inviting the state or state-affiliated institutions to settle these disagreements by coercive means. In accord with this social contract, no group, religious or secular, should seek hegemony over others who disagree with its perspective.
It is hard to see how a tiny law school that adheres to traditional biblical mores is a plausible candidate for imposing ideological hegemony on the rest of the nation. After all, attending TWU is a matter of consent, not coercion. (LGBTQ students who agree to practice celibacy have attended TWU, and many have reported happy experiences there.) Given the extensive secularization of Canadian society, along with the decline of social conservatism as a political force, within the past fifty years, it is also difficult to imagine how this school could cause “significant harm” to communities that do not share their values. Hypothetically speaking, if TWU’s law school were the only school that offered education in the law in Canada, one could reasonably worry about the power of this school to impose its own “comprehensive doctrines” of the good on LGBTQ Canadians or anyone else. However, the only players in this case who have this type of authority are the law societies who have opposed TWU from the start.
Judging from the language of the majority decision in the case of TWU’s proposed law school, one might think that the justices who opposed TWU still shared Rawls’s nuanced idea of accommodation. After all, these justices write that the anti-TWU law societies achieved a “proportionate balance” in negotiating the conflict between religious freedom and equality rights, in this case. However, it is hard (at least for me) to see how they can make this claim. Supporters of equality rights for LGBTQ persons got everything they wanted while social traditionalists got bupkus. These traditionalists in Canada should ask the question: is it now legal for the state and quasi-administrative bodies such as law societies to decide what should count as valid freedom of expression in the legal sphere?
Lest this claim sound like right-wing paranoia, it is worth noting that the Law Society of Upper Canada (Ontario) issued a statement last November that insisted that their members take a special oath requiring them to uphold the values of “equality” and “diversity” in their profession. That same month the society expressed its view that all references to Jesus Christ in TWU’s community covenant be counted as “discriminatory language” that should further disqualify TWU from having a law school. This statement, which was filed with the SCOC, dramatically reveals what the end game is for the opponents of TWU’s law school. They not only oppose a conservative version of marriage but they also oppose any reference to religious language in the public sphere, period!
One of the many ironies emanating from this case is that all the arguments used in favor of supporting LGBTQ equality rights could just as easily be employed by social traditionalists who want to practice law while having the freedom to retain their religious beliefs. Surely, the threat that TWU’s graduates would not be allowed to practice law in Ontario, Canada’s largest legal market, constitutes “significant harm” to social traditionalists, not to mention reducing their “access” to the legal profession by a long shot.
As supporters of TWU’s law school have often pointed out, the ripple effects of this case go far beyond the Christian community. Now that the law societies of Canada can disallow Canadians who hold illiberal views on marriage and sexuality, will they bar orthodox Jews or Muslims from practicing law as well? Surely, this is a blow to “diversity.” The opponents of TWU’s law school often complained that LGBTQ students who might attend TWU would have to choose between living a lie while studying there or face expulsion for practicing their sexual identity. Will traditionalists of all stripes have to live a lie as well if they are required to take an oath that calls on them to suspend their moral beliefs? More broadly, will religious charities, schools, and even churches be required to pass a values-test to demonstrate their support of the latest political fashions?
Social conservatives may end up having the last laugh here (if they are allowed to laugh in the new Canada). Celebration of this victory over TWU’s law school may turn out to be a rather short-lived one for leftists who are already battling their brethren over whose rights deserve the most recognition. It is well-known that feminists and trans-genderists are fighting each other for hegemonic control of the identity sweepstakes. If this battle royale ever ends up in the Supreme Court, will it be possible to strike a balance between these two ideological agenda? My guess is that the Supremes will have to engage in the same zero-sum game that they played with TWU: the losses of one group’s rights equal the gains of the other.
On a final philosophical note, the justices who opposed TWU may well prove Nietzsche right about what truly counts as “justice.” In Human, All Too Human (aphorism 92), he warns that justice can only be achieved between human beings of equal power. “One gives to the other what he wants to have, to be henceforth his own, and in return receives what one oneself desires.” Absent this mutual equality, the revenge of the stronger party over the weaker makes true justice impossible. In fine, power, not justice, may well decide the fate of liberty in the new Canada.