Since the adoption of our Charter of Rights and Freedoms in 1982, the accepted narrative tells us that Canadians are better protected than they were under the statutory Bill of Rights (1960) and the centuries-old Common Law tradition. But are we really? In the wake of the Supreme Court of Canada’s recent decision in the Trinity Western case we have reason for doubt.
Section 2 of the Charter claims to guarantee the fundamental freedoms of all Canadians, including “freedom of conscience and religion.” However, section 1 also tells us that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Because this limiting clause is expressed in such vague language, it is up to the courts to decide which limits are reasonable and which not. However, the courts are under no obligation to admit that their criteria for doing so are rooted in an unstated religious worldview placing the individual at the centre of life.
Trinity Western University, an evangelical Christian post-secondary institution in British Columbia, attempted to establish a Christian law school but ran into difficulty when the law societies of Ontario and B.C. declined to accredit the institution. Why? Because its community covenant prohibits students from engaging in sexual activity outside of a biblical understanding of marriage. There once was a time when such a requirement would scarcely cause controversy, because the larger society understood the distinctive character of marriage as a unique and lifelong covenant between a man and a woman, capable in principle of bringing forth and nurturing the next generation. As such, marriage deserved protection as a matter of simple justice, because, without it, society as a whole would suffer.
To do as we please
Over the past half-century the advance of sexual individualism, pursued with religious fervour, has effectively downgraded marriage from the status of institution to a mere private contract between two persons to fulfil whatever ends they desire. The shift to contract is an integral component of the larger narrative that tells us that we are progressively liberating ourselves from the old customs and mores that once limited our options. This is a manifestation of what I have called the “choice-enhancement state,” the latest stage in the ongoing development of liberalism.
This liberalism is by no means religiously neutral; it is based on a firm faith that the good of society is advanced by liberation from all sorts of constraints, including social, political, economic and even natural. The liberal faith is articulated as support for human rights. But these rights are now separated from the responsibilities that once gave them meaning. For example, freedom of speech, of the press and of assembly are fundamental to just governance in a democratic state. But now freedom is increasingly defined as the right to do as we please. We now have the apparent right to fulfil our desires irrespective of the standards of the variety of nonstate communities of which we are part.
In 1992 the U.S. Supreme Court declared that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This, of course, is incompatible with the ordinary demands of society and constitutes a revolutionary upending of all standards differing from the public law of the state. Canada’s Supreme Court increasingly echoes this conception, holding that Trinity Western’s community covenant is an oppressive imposition on individual choice.
Over the decades, the courts have used the Charter, less to protect Canadians from state overreach, and more to make it difficult for communities to uphold membership standards. While some think this progressive, it is actually a setback for public justice, which requires governments to weigh in the balance the interests of individuals and communities and in so doing refrain from imposing the parochial faith of liberal individualism on the larger society.
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