Pluralism, Autonomy and Resistance: A Canadian Perspective on Resolving Conflicts between Freedom of Religion and lgbtq Rights

Abstract

Trinity Western University (TWU), an evangelical post-secondary institution in Canada, has litigated against three provincial law societies who refused to accredit TWU’s proposed law school because of a mandatory University Covenant that prohibits sexual intimacy outside of marriage ‘between one man and one woman’. Leave has been granted to appeal this matter to the Supreme Court of Canada. This litigation involves a conflict between constitutional rights: freedom of religion and LGBTQ equality rights. The Supreme Court of Canada mandates a non-hierarchical approach to resolving such conflicts, aimed at ensuring constitutional rights and freedoms do not depend on majoritarian support. Balancing competing fundamental rights and freedoms must be done contextually, with a weighing of harms and benefits on each side. Despite strong moral and theological objections to TWU’s stance on same-sex relationships, the authors argue that, in this instance the balancing of harms and benefits weighs in favour of freedom of religion.