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A Wall Between Church and CourtA Wall Between Church and Court

A Wall Between Church and Court

Convivium contributor Janet Epp Buckingham explains this week’s unusual Wall case in which the Supreme Court said judges have no business telling churches how to decide who belongs. It’s a positive outcome for religious freedom, she says, though less far-reaching than other anticipated rulings will be.

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Topics: Religion, Law, Religious Freedom
A Wall Between Church and Court June 1, 2018  |  By Janet Epp Buckingham
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It’s one of those strange legal cases that should never have gone this far. But on Thursday, the Supreme Court of Canada brought an end to the strange saga of Randy Wall and his fight with the Highwood Congregation of Jehovah’s Witnesses. 

In essence, the court ruled that church membership decisions are not reviewable by courts. Justice Rowe, writing for a unanimous court, stated, “In the end, religious groups are free to determine their own membership and rules….”

This is a relief for religious institutions that watched two lower levels of court say the opposite in rulings that would have granted Randy Wall a court hearing in his dispute with his former church.

Randy Wall is a real estate agent in Edmonton. He is, or was, a Jehovah’s Witness and had been since 1980. In 2014, a series of events ended in him being disfellowshipped from his congregation. These events included his 15-year-old daughter being disfellowshipped, and two instances of drunkenness. Wall admitted to the drunkenness but was disfellowshipped because he was “not sufficiently repentant.”

The Jehovah’s Witness religious practice of disfellowshipping requires that other members of the congregation have only limited relationships and conversations with a disfellowshipped member, even if it is a family member. Obviously, the disfellowshipping of the daughter caused considerable family hardship and the disfellowshipping of the father even more so.

Beyond that, a significant portion of Randy Wall’s real estate clientele were members of his congregation. After being expelled from Highwood Congregation, Wall’s real estate business tanked. 

Wall was therefore not happy with the decision. He first tried appealing the decision through internal processes. That failed. But the point behind the expulsion was that Wall be repentant and restored to his congregation. Somehow that avenue seems not to have occurred to Randy Wall.

Instead of repentance, Wall chose to continue fighting his expulsion. He decided to take it to court. Without hiring a lawyer, Wall brought an application for judicial review by way of an order for certiorari. This is a lot of legal terminology but basically, it’s how you would appeal a decision of an administrative tribunal such as a human rights decision. 

When faced with this unusual procedure, Highwood Congregation applied to have the case thrown out of court. They argued that the court has no jurisdiction (no legal power) to decide who gets to be a member of a religious community. You can’t have judicial review of every decision by every person or organization in the country!

But a judge of the Alberta Court of Queen’s Bench ruled it was indeed “justiciable,” meaning Wall would get his day in court. So, the Congregation appealed to the Alberta Court of Appeal. In a two to one decision, it upheld the lower court ruling. 

On what possible basis could courts decide that this was something they could rule on? The foundation for Wall’s case is a 1993 Supreme Court of Canada ruling about a Hutterite Colony. In that case, several Hutterian Brethren men, all with the last name “Hofer,” were expelled from Lakeside Colony in Manitoba. Hutterian Brethren hold property and farm communally. It means that when these men were shunned, they had to leave the community, including their homes and livelihood. 

The lower courts were convinced on the basis of the Hofer decision that Wall had a legitimate case because his livelihood was affected by his expulsion from his Jehovah’s Witness congregation. But the two cases are very different. Randy Wall’s situation did not involve any contract or property rights. His real estate business losses were collateral damage.

This leaves the issue at play as being about membership in a religious institution. And that is exactly what the Supreme Court of Canada has ruled. Highwood Congregation, or any other church or private organization, is not subject to court oversight of its decisions. Private organizations can make their own decisions about membership. 

Justice Rowe likened this to a variety of other decisions courts should not make, including who is the best hockey player of all time, or addressing a family dispute over being invited to a cousin’s wedding. 

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Those of us who are members of religious communities might take issue with this characterization. Our participation in a religious community reflects our deeply held beliefs and is part of our relationship with God. It forms part of our identity. It determines our friend group. It is more serious than an argument about hockey, even recognizing that hockey forms part of Canadian identity. Sorry, folks, being a member of a church is a higher calling than being a fan of the Maple Leafs!

Justice Rowe addressed this issue as well. He ruled that, “issues of theology are not justiciable.” This is actually a good thing. Courts are not qualified, and we should not ask them, to determine issues of theology. 

Through this decision, the Supreme Court of Canada has given a measure of autonomy to churches and religious communities. But how far does this extend? Does it include religious organizations that are not houses of worship? 

These are important questions because there has been pressure on some Christian institutions to do things that violate their religious principles or practices. Christian hospitals and hospices have been pressured to offer assisted dying. Christian schools in Alberta are being required to change their policies on sexuality.

We are also eagerly anticipating the Supreme Court’s decision in the cases over the proposed law school at Trinity Western University. Justice Rowe in the Wall case was careful to point out that the Charter was not at issue because the court was not dealing with government but with private litigants. 

The Trinity Western case, on the other hand, is about the Charter rights of the university. The law societies of British Columbia and Ontario were making accreditation decisions so were acting as government. That means that the law societies are required to respect the religious freedom of Trinity Western. There are thus broader issues at play.

The long and short of it is that the Supreme Court of Canada has strengthened the autonomy of congregations of believers. They can be assured that courts will not get involved with what are really internal decisions. How far this extends to other religious institutions will be determined in future decisions.


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