Was there once a time, perhaps in a "galaxy far, far away" or perhaps in our own dim past, when the struggle between systems of belief did not exist? In the West, we sometimes think there were centuries after the legalization of Christianity when a unified Church dominated the intellectual landscape to the degree that those who disagreed with its teachings (and no doubt there were some) had little choice but to be silent. If so, it seems impossible to identify any specific period where that was true. In earliest times, pagan philosophies still vied with Christian for adherents. Rowdy monks and pagans came to blows on many occasions. As time progressed, great Church councils were called to define orthodoxy and suppress heretical views, which obviously flourished. By the 14th century, Marsilius challenged the secular power of the Church and argued for its shift to the political state. Ockham rejected the forms of Aristotle, embraced nominalism and set the stage for the divorce between God and the laws of nature. A generation later, John Wycliffe argued his metaphysical realism, lending further support to the idea that temporal power should be exercised only by the political state. After that, we had the Reformation (in which the Church split), the Enlightenment (in which materialism and atheism became popular) and the Modern Age (with Marxism and Naziism opposed by various forms of democracy).
All these conflicts were clearly driven by differences in beliefs and values. And they led to situations in which opposing forces battled for supremacy and violence was done. Marsilius and Ockham were both forced to flee after being excommunicated. Wycliffe was also declared heretical and eventually some of his followers, such as Jan Hus, were executed. Millions were also executed under Naziism and Marxism. Culture clashes, therefore, are nothing new to Western civilization. Nor, I suggest, are they new to any human civilization that has existed on our planet. Perhaps this is why we refer to "culture wars." As these examples demonstrate, the usual turn of events in a clash of beliefs is the repression of one belief at the behest of another through, in some cases, violence and, in others, the exercise of power by religious authority or the State.
Today, in Canada, we have an unusual opportunity to diffuse these "culture wars" and permit a variety of beliefs to coexist, to discuss their differences, to seek to persuade and to argue for the views of public policy that our beliefs dictate or imply. This is because of the grant, under our Charter, of freedom of conscience and religion, with the limiting factor of section 1, that encroachments on this freedom must be reasonable limits imposed by law and justifiable in a free and democratic society. This, at least, ought to mean that when a majority belief system seeks to impose itself upon and silence the minority position through law or through practice of the State, courts can restrain the action. And, again, where individuals try to persecute, in some way, others who differ from them in belief, provincial and federal human rights legislation should be able to be called in aid. Even further, where parties attempt to restrain the expression of belief under human rights legislation, the various human rights tribunals or commissions, being arms of the State, should find themselves constrained to protect the exercise of contrary belief by the Charter. Thus, on paper, Canada has an unusual opportunity to allow the expression of multiple belief systems without repression.
And, in some limited respects, that has occurred in our courts. Sikh schoolboys have been allowed to carry their kirpans (with reasonable safeguards); Jewish condominium owners have been allowed to build temporary shelters on their balconies to celebrate a festival. But unfortunately, these exceptions have not been justified by a robust account of freedom of religion. Rather, they have been put forward as a kind of equality right. The consequence has been, I suggest, that freedom of religion and conscience has become devalued by the general public as a simple case of protecting the irrational believer from the values and norms of society. Where other issues of equality can be appealed to, the idea of freedom of conscience and religion is shunted to second place. Meanwhile, supported to a significant degree by public opinion and by the courts, the State has more aggressively pursued policies of uniformity and concealment of differences.
While the most obvious example of this would be the proposed legislation in Quebec banning the wearing of religious symbols, we can also point to other incidents: the Alberta government's refusal to continue the long-standing exception for Hutterites carrying driver's licences without photographs, and its success in defending this refusal in the Supreme Court of Canada; the refusal of the Saskatchewan Court of Appeal to uphold proposed legislative amendments to protect the conscience of marriage commissioners; and the position taken by the Ontario Human Rights Commission on physicians who refuse to perform abortions or prescribe contraceptives.
Thus, our culture wars follow an unfortunate pattern where one group attempts through various administrative or regulatory processes to deprive another of the right to express opinions or carry out activities to which they are committed. At that point, the dispute often moves to the next stage: some form of litigation to resist the incursions of those processes on the religious freedom of the target group and its right to live out the tenets of its faith. However, we find that the appeal to those mechanisms is often futile. Courts and tribunals treat issues of religious freedom with great caution, in many cases appearing to recognize little value in the fundamental freedom other than personal fulfillment. Thus, the defence often fails, or if it succeeds, does so in a way that in fact limits religious freedom rather than recognizing its importance. Freedom of religion, I contend, is not listed as a fundamental freedom simply to self-actualize the individual or to promote the equality rights of minorities. In a society with a plurality of belief systems, only repression can impose uniformity of moral values. Once repression begins, it starts the cycle that ultimately results in culture wars of the sort where anger, resentment and, potentially, violence become more and more likely. Freedom of religion, leading to the free discussion of varying ideas, morals, policies and viewpoints becomes essential to a democracy where uniformity of belief is no longer the norm. We have arrived at this point in Canada. It is essential that we come to a new understanding of freedom of religion in our State. As I have said, the tools are there, but using them requires us to question the interpretation of our Charter and our federal and provincial human rights legislation, and to reexamine the role of the State and the courts in cultural conflicts.
I want to focus on one of the battlefields in our so-called culture war where majority and minority values often clash: the education system — for the most part, post-secondary institutions. I also want to look at the moral issues that have become legal issues in efforts of various sides of the conflict to activate the weaponry of legal processes in their favour. Finally, I want to discuss the role the courts have played or may play in these cases and make some suggestions for an alternative approach that may break the destructive cycle that we refer to as the culture wars.
Moral conflict is difficult to resolve. Differing conclusions about right and wrong usually emerge from deeply seated differing perspectives on reality. Was the universe created only by chance? Do humans have a "nature" that they violate at their peril? Are there angels and demons, or is there no world beyond that perceived by human senses (extended and expanded through sophisticated instruments)? What is "consciousness"? While we think of these questions as ones that are asked only by philosophers or clergy, in fact, there is no human born who does not have, whether through her own reasoning or through culture imparted to him, or both, a belief about these matters. And as the belief goes, so the moral judgments follow.
The site of our culture conflicts resides where these differing beliefs lead to radically different opinions about what ought or not to be done by human beings. And in a university setting, those radically different opinions involve primarily the protection of human life—when it can be terminated and by whom — and sexual behaviour. At the root of these conflicts are a number of different conclusions about reality, not the least of which is what equality means and how highly, in the scheme of rights and wrongs, guarantees of equality rank. Do they out-weigh all other considerations? Or do they not? And what exactly is equality anyway?
It has been suggested that conflict over acceptance of same-sex relationships should be viewed as a matter of equality and that we should stop viewing it as a matter of morality. Such a suggestion illustrates nicely the problem. Almost no one believes that all forms of sexual conduct are acceptable. At the least, most people would agree that sexual conduct becomes "wrong" when it harms another or when free consent is not present. Some consider the conduct acceptable if it meets that minimum; some of these may still draw a line at conduct involving public acts or multiple partners; others look for some kind of emotional tie between consenting adults to make the conduct acceptable; while still others may require a formal legal or religiously sanctioned relationship.
But as long as most people hold that there are some forms of sexual activity that ought not to be carried on, sexual conduct will form a part of those people's moral system. A suggestion that it is really a matter of equality is nothing more than an illusory solution and is simply a mechanism to determine the outcome of what is still a moral argument. It does not remove the fact that for the vast majority of people, religious or not, sexual conduct forms a part of their moral belief system. Indeed, equality itself is a moral issue.
It is obvious that we no longer live in a society unified by common religious, conscientious or moral principles. The divisions can no longer be masked and the numbers on each side are sufficiently great that social pressure can no longer be counted upon, as was once the case, to ensure conformity of behaviour. Conformity can only be achieved by outright repression or intimidation, or by restricting the rights of those holding other views. Therefore, I suggest, we either learn how to turn culture wars into culture debate, with only democratically elected representatives having the power to set the legal outcome and with the courts assuming a robust role of providing adequate protection where reasonable for the dissenting minority, or our democracy will find itself imperiled.
Let us turn, then, to moral conflict on the university campus and see how the culture wars have gone, how they might progress in the future and how they might be ended.
There is little objection on most campuses to the presence of a variety of religions and worship practices. In the older universities, a number of colleges once or still affiliated with particular religious bodies exist and often offer chaplaincy or religious services to their populations on campus. Theological colleges, although generally no longer fully a part of our universities, still often hold affiliations with them. Even on the University of Victoria campus — a young university with a history of antagonism to religious studies and more so to theological studies there is an inter-faith chaplain's office and an inter-faith chapel.
This is likely not surprising. The history of the public school system in most provinces is quite different. In Ontario, a series of court decisions beginning in 1988 effectively removed any religious expression from the public schools, other than in the separate Catholic system. Efforts to accommodate minority faiths that require some activities during normal school hours, such as Muslim or Sikh religions, have tended to meet with hostility on one ground or another. In Quebec, compulsory programs teaching religious relativism have become controversial and sparked legal challenges. The issue has not arisen in the same way in the public university, no doubt for a variety of reasons. First, since most provinces set the age of majority at 18 or 19, the vast majority of students on campus are adults. Second, because of the structure of university programs in Canada, there is no integration of religious practice with the teaching mission, in contrast to the primary or secondary school systems. Thus there is no captive audience and, as adults, university students are free to make their own choices in this respect. Rights to worship as one pleases, provided those rights are generally exercised in private, have little impact on others and do not violate the Criminal Code, have not been controversial in modern Canadian law.
However, if the religious expression includes even the mildest form of moral statement on controversial issues, the situation changes dramatically. Let me outline a current conflict on the University of Victoria (UVic) campus that has been the subject of legal negotiations and is about to move into the litigation phase. The UVic Catholic Students Association (CSA) is a recognized club of the University of Victoria Students' Society (UVSS). The Students' Society is recognized by the University Act and, under that act, receives fees from every undergraduate student on campus, collected by the university administration, by law, with no controls on its actions under the statute other than a requirement that it file financial statements annually.
Last year, at an event showcasing the various clubs and their activities, the CSA had a table displaying literature that set out Catholic doctrines and beliefs. Included were some pamphlets that discussed marriage, sexual conduct and appropriate behaviour with the opposite sex. Of course, the pamphlets described marriage as between a man and a woman; decried homosexual relationships; abjured the "hook up" culture and all forms of premarital sex; and urged modest dress and conduct, particularly for women. The pamphlets were not used in any way; they simply sat on the table. A few students picked up the pamphlets and examined them. Some of those students then complained to the students' society that the CSA was guilty of harassment under UVSS policies, encompassing both homophobia and (as it is called) "slut-shaming" and promoting a patriarchal and anti-feminist society. The UVSS committee examined the matter and recommended censure to the Board. The UVSS Board, including students allied with the complainant groups, voted to reprimand the CSA.
The British Columbia Civil Liberties Association undertook representation of the CSA. In response to a letter from lawyers acting in the matter, the UVSS reconsidered its decision (without the directors who were allied with the complainant groups) and arrived at the same decision. They demanded that the CSA enter mediation with the UVSS and restated the reprimand and censure. Failing acceptance of the mediation and censure, the UVSS threatened further steps, presumably delisting the CSA from its approved clubs, thus hampering its rights to obtain space for meetings on campus or participate in UVSS activities.
The legal issue is an interesting one and, at this time, the result can only be a matter of speculation depending upon the strategy of the legal representatives of the CSA, who may follow an alternative process to a human rights complaint. However, the CSA is clearly a religious organization and its beliefs on sexual conduct are also just as clearly a part of Catholic faith and doctrine. The UVSS is in all likelihood providing a service commonly available to the public. Based on decisions of the Supreme Court of Canada, the fact that the "public" is limited in this case to undergraduate university students at UVic does not defeat that conclusion. Section 8 of the British Columbia Human Rights Code prohibits such suppliers from discriminating against others on the basis of religion. However, the section does provide a defence in the case of a "bona fide and reasonable justification." Would it constitute a "bona fide and reasonable justification" that the UVSS policy on harassment is drafted so broadly as to catch any expression of opinion contrary to the moral views that its Board holds?
No case has found that the simple expression of a belief that homosexual activity, for example, is immoral or that marriage should be confined exclusively to a man and a woman is discriminatory or in any sense illegal. It is possible that an argument can be made on the basis of the British Columbia Human Rights Code's prohibition on discriminatory publication. Section 7 of the Code, however, requires the publication either to indicate intent to discriminate or to expose a person or group to hatred or contempt on the basis of prohibited grounds. The mild statements in favour of heterosexual marriage and against immodest dress contained in the CSA pamphlets seem to fall far short of the test established by the Supreme Court of Canada in the recent Saskatchewan Human Rights Commission v. Whatcott.
It seems at least reasonable to say that if the UVSS wishes to make distinctions and thus discriminate on the basis of religious belief, a justification for doing so would have to be more than simply an adoption of a policy that makes the statement of a religious belief forbidden by calling it discrimination, harassment or "slut-shaming." While private voluntary organizations may well be able to restrict their membership to those who agree with them on moral, religious or other grounds, the UVSS stands in a far different position, with neither membership nor financial support being an option for students enrolled at UVic.
The activity of the UVSS raises also interesting questions about the university itself. As we all know, it is possible (although by no means certain) that the Charter applies to at least some activities of a university. Freedom of expression and freedom of conscience and religion would appear to be two important fundamentals of, first, academic freedom itself, but also of the university's role. Moreover, at least in British Columbia, where a majority of members of university boards are appointed by the government, and government exerts significant control over its operations, the university's relationship to the government is close; perhaps indeed closer than the Supreme Court acknowledged or realized in its landmark decision in Harrison v. University of British Columbia. But apart from some future case determining a broad applicability of the Charter to the intellectual life of the university, there is precedent for employers who fail to control discriminatory conduct of employees being themselves subject to claims for discrimination under provincial legislation. Of course, an employee is under the control of the employer in a way that student associations are not under the control of the university.
At present, as noted, the province's University Act limits the authority of the university to control student societies, at least with respect to providing them with their fees. However, student societies operate on the property belonging to the university and usually have contractual relationships with it for rental space and the provision of various services. As well, the executives of such societies are students in the university and subject to university rules. Might a university incur liability where it permits the repression of freedom of conscience and religion or, at least, discrimination against students on the basis of religion, on its property by student societies without exercising what control it may have through various means? The UVSS-CSA conflict raises all these questions, which, as yet, remain unanswered.
Everyone who reads the news is aware of the ongoing issues of pro-life campus organizations. Several high-profile cases have made the news. Universities, human rights tribunals and courts have generally failed to protect the rights of students in these groups to express their opinions or state their positions. The conflicts can be divided into two categories: conflicts with student associations, which bear a great deal of similarity to the problem I have just discussed, and conflicts with university administration, which is often primarily concerned simply with keeping the peace on campus. There are three cases that have been before adjudicative bodies in which pro-life student groups have sought protection against refusals by their student societies to provide the type of funding and services available to other student organizations. The results are mixed but may suggest a lack of willingness on the part of courts and tribunals to treat pro-life groups in the same way as other groups claiming protection from discriminatory treatment. University administrations have rarely involved themselves in these conflicts.
In the first case, the claimants argued before the human rights tribunal that they were discriminated against on the basis of political belief, contrary to section 14 of the Human Rights Code. In B.C, political belief is generally not protected under human rights legislation. However, it is protected where the issue involves the actions of a union or occupational association. The students argued that a students' association was analogous to a union or occupational association. However, the tribunal found that a student association did not qualify as a union or occupational association and the claim was dismissed, a conclusion that appears to be held also in the Quebec courts, based on recent litigation arising from the student protests against tuition increases.
Interestingly, if the Charter does apply to universities in some measure, then the requirement of compulsory membership in student associations imposed by the university might well be contrary to freedom of association, guaranteed in section 2 of the Charter. Moreover, if this decision and recent court decisions in Quebec are correct and student associations are not comparable to unions, factors that have made the Supreme Court of Canada reluctant to intervene in legislation providing for compulsory unionization might be absent. Should a court decide that the requirement of compulsory membership in student associations was unconstitutional, the fate of the current species of student association might well be sealed. Widespread indifference or hostility to student politics on campus could well translate into a decision by students to spend their money on matters other than joining a student association. Of course, decisions that student associations should not be treated like unions have not addressed the issue of compulsory membership and the application of the Charter to the university in this respect is unclear.
The second case was settled after a preliminary refusal to dismiss the claim by the tribunal member. That case was pleaded as discrimination on the basis of religion and the tribunal member found that while the organization was not itself primarily religious, its members were mostly motivated by religious belief. Thus he refused the student association's application to dismiss on the basis that there were no grounds for alleging discrimination on the basis of religion.
The third case is particularly troubling because it not only was decided by the tribunal on its merits, but the decision, which suffered from several flaws, was upheld by the Supreme Court of Canada on the basis of what appears to be a legal error. In Gray v. University of British Columbia (Okanagan) Students' Union, the pro-life club had been funded for a year by the student union. During that year, the club participated in the Genocidal Awareness Project, which displayed graphic images of aborted fetuses and compared current abortion practices to the Holocaust. Some students complained that the presentation was offensive, and the next year, the student union discontinued funding. The tribunal dismissed the pro-life group's complaint. Its reasoning was, however, fallacious.
First, the tribunal held that because other religious clubs were funded, there was no discrimination simply on the basis of religion. Certainly, this is a logical fallacy. That I may approve of some religions does not mean I have not discriminated against others. The point the tribunal was making was that it was the activities of the group, not its religion, that were the reason for the termination of funding. However, even this suffered from a failure to address a significant underlying issue: Discrimination against activities that are based on religious belief also constitutes discrimination on the basis of religion.
Consider: If a Muslim group distributed the Qur'an on campus, this might offend some people. However, if it was forbidden from doing so, while other campus groups were allowed to distribute literature, it would be hard to argue that the group was not being discriminated against on the basis of religion. This point was not considered. On judicial review, the decision was upheld. In the course of doing so, the judge adopted comments from counsel that stated that the purpose of the Human Rights Code was not to allow people to gain advantages that would be denied to others but to protect groups from repression on the basis of the prohibited grounds. But this is obviously wrong. In fact, that is exactly what the Human Rights Code (and all federal and provincial human rights legislation) does. Suppose, for example, that I am turned away from a bed and breakfast because of my sexual orientation. Without doubt, the tribunal will order that the owner admit me. Suppose, on the other hand, I am turned away because I am a member of the Liberal Party of Canada and the owner hates Liberals. Since political belief is not protected in this context in British Columbia, the owner is perfectly entitled to do this and no tribunal will order otherwise. The Human Rights Code is indeed expressly designed to give advantages to people with specifically identified characteristics where others would deny them those advantages based upon those characteristics. The fact that this was raised in the case of a religious discrimination case but has never been repeated or even seriously argued for other forms of discrimination is troubling.
Student associations have not given up on refusing club status to pro-life groups. I understand that disputes are currently ongoing at two other universities, Brandon and Trent.
I served eight years in administration as an associate vice-president. During those years, I was aware of a broad range of beliefs (religious and otherwise) among members of the senior administration. They, like the general population, were divided on these issues. The issue on which they were not divided was the simple wish that trouble, especially student unrest, be avoided. Nothing galvanized administrative action so quickly as a concern that a group of students would likely cause the university trouble. That trouble, it was feared, would resound in bad publicity, loss of donors, loss of prospective students, possible violence, outside interference from police, lawsuits and a waste of everyone's precious time. For quite reasonable motives, when it comes to student unrest, it is certainly true that the squeaky wheel gets the grease.
But an example that suggests a flaw in the pragmatic approach can be found in Wilson v. University of Calgary, heard by the Alberta court on April 17, 2013, with, at time of writing, the decision still pending. In Wilson, the Calgary pro-life club was participating in the Genocide Awareness Project, as they had done for some years. In 2007, their display of graphic posters was disrupted by opposing students who blocked access to and visibility of the posters. The next year, the administration issued a notice to the club, delivered by campus security, requiring them to turn the posters so that they faced away from the public pathways and could not be seen by casual passersby. When the students refused, they were charged with trespass and given penalties under the non-academic misconduct policy of the university for failing to obey the instructions of campus security in the performance of their duty. The trespass charges were stayed by the Crown. The penalty under the university policy was appealed, but eventually upheld by the board of governors.