A crack in Canada’s constitutional foundation

Unlike the United States, Canada has not made any court rulings on when an individual or organization could conscientiously refuse to provide goods and services that would amount to endorsing or celebrating LGBTQ rights. In other words, there was no Canadian equivalent of Masterpiece Cakeshop.

Closest to a current 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 as Trinity, a private Christian university, has a code of conduct that prohibits sexual intimacy outside of traditional marriage. The clause, many argued, unfairly discriminated against LGBTQ people and made law school inaccessible to them. In response, Trinity cited in response to the freedom of religion guaranteed by Canada’s Constitutional Bill of Rights: the Canadian Charter of Rights and Freedoms.

In 2018, a majority in the Supreme Court ruled that while exercising their statutory mandate to regulate the legal profession in the public interest, Canada could lawfully refuse to admit law school graduates due to the implications of the challenged clause in Trinity’s Code of Conduct for the LGBTQ – Community. Law school did not open, and the prospect that the ruling might apply to Trinity’s other professional programs influenced the university to later make the code of conduct optional for students.

In various societies such as Canada and the United States, there is a constant disagreement between individuals on a myriad of issues. Sometimes these disagreements lead us to understand what is true and false, right and wrong, good and bad. We regularly discuss and debate these issues. It is only natural to want others to see and then live what is good, right, and true.

But when we fail to convince others to accept our beliefs, we generally agree not to agree. We don’t enforce our beliefs, no matter how right we think they’re right. This attitude of tolerance – “live and let live” – is the basis for a free and democratic society. The Trinity Western ruling revealed a disturbing crack in this part of Canada’s bedrock. This deficiency, if left unchecked, allows for legal outcomes and social interactions that contradict the kind of democratic pluralism that the Charter seeks to protect.

That cornerstone of liberal democracy – robust tolerance – comes under further pressure in a legal battle between an LGBTQ group and a Catholic community in White Rock, British Columbia. The White Rock Pride Society asked for the Star of the Sea Parish event hall to be used for a 2019 fundraiser during Pride week. Star of the Sea declined because, in the opinion of the community, the proposed use of the space would contradict certain teachings of the Catholic Church.

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

White Rock Pride filed a complaint under British Columbia’s Human Rights Code, a law that prohibits discrimination based on sexual orientation (and other grounds) in the provision of services to the public. If the community had a real, reasonable justification for rejecting 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 lack of prospect of success, ruled that it deserved a full hearing.

In making this decision, the tribunal ruled that the case would not be resolved by a precedent. In 2005, the Tribunal ruled that a Catholic group could refuse to rent their auditorium to host a lesbian couple’s wedding if the refusal is politely reported. The present case does not involve a wedding reception, and White Rock Pride seems intent on emphasizing that distinction. The animating principle, however, is inevitably the same in both cases: an organization need not rent out its property to celebrate an event or to promote something that is contrary to its identity and beliefs.

Anti-discrimination laws are not a tool to force others to adopt our worldview – be it liberal, conservative, progressive or otherwise.

Some might argue that by making its event venue open to the public, Star of the Sea cannot allow certain events and others because of its beliefs cannot allow. This argument not only lacks sufficient nuance for a pluralistic society that advocates tolerance, equality and fundamental freedoms. It is also prone to abuse and tactical use, stimulated by opposition to unpopular beliefs rather than serving as a principle of general application.

What if White Rock Pride owned an event venue and, like Star of the Sea, rented it for various functions serving the community? What if Star of the Sea didn’t own a hall and asked to use the White Rock Pride hall for a gala to promote the Catholic belief in marriage and family? I suspect we would all say White Rock Pride could turn down the rental. It would be unfair, even cruel, to require White Rock Pride to give Star of the Sea a platform on its own lawn to advance those beliefs. If that’s true, why does Star of the Sea have to rent its hall to White Rock Pride?

Any answer based on the correctness of White Rock Pride beliefs or the incorrectness of Catholic doctrine misses the point. Supporting the Star of the Sea’s freedom to maintain its identity does not depend on endorsing Catholicism. In a free and democratic society, it is coherent for a person to reject Star of the Sea’s beliefs regarding marriage and family and yet support the community’s refusal to rent their hall to a group of opposing beliefs and the hall want to use it to move them forward.

Anti-discrimination laws are not a tool to force others to adopt our worldview – be it liberal, conservative, progressive or otherwise. They do not authorize majorities to lock out minorities. These laws target insidious and unjust discrimination in connection with the provision of services to the public. If we want to convince others of our views on a particular issue, we should use the right tools in a liberal democracy: dialogue, debate and discourse.

For these interactions between citizens to be constructive, we need to view our interlocutors as friends – yes, friends – rather than enemies. This should lead us to reject the idea of ​​a so-called “culture war”. War always leaves destruction, and friendly fire is especially tragic. There are advantages to seeing those with whom we disagree primarily as fellow citizens rather than as sworn enemies. Only good can come of shifting the paradigm of culture wars to one in which we acknowledge our disagreements but start from the standpoint that our beliefs, though diverging, stem from a common desire for human prosperity. Such a postponement, when undertaken by all sides, encourages consistent debate on follow-up matters of common concern.

Say what you want to say about Star of the Sea beliefs about marriage and family, but the refusal to host the White Rock Pride gala is not malicious or arbitrary – just like the White Rock Pride refusal, the hypothetical one Hosting a community gala on marriage and family would not be. In both cases, the rejections result from the group’s desire to honor their core beliefs – not to betray them.

If we are serious about inclusion and diversity, about building a society that truly lives up to these ideals, this kind of freedom deserves more leeway. “Tolerance and adaptation to differences,” said the dissenting judges at Trinity Western University, “serve the public interest and promote pluralism.” It is worrying that this idea is increasingly only accepted when the “difference” that demands tolerance enjoys the favor of the majority – or more precisely, the uncompromising minority within the majority.

The freedom to manifest core beliefs in public space is certainly not absolute, but in the case of Star of the Sea, the law should respect it. It is even more important that we as citizens live up to its tolerant spirit in our dealings with one another before the law comes into force.

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