Competing views on state neutrality
By Bruce J. Clemenger. Reprinted with permission from Faith Today (Jan/Feb 2018). Subscribe to read more of his columns. 
In the recent Supreme Court case about the proposed law school at Trinity Western University, the lawyer for the Canadian Bar Association made a troubling argument that got everyone’s attention. Since the state must aim for religious neutrality, she argued, that means governments should not accredit or otherwise provide a benefit to any religious organization.
Her point was the TWU law school should not be accredited because it is operated by a religious group. But she argued that, applied more widely, her point of view would mean governments should stop other existing forms of recognition of religious groups, including the granting of charitable status.
Her view is increasingly common. Rather than ensuring governments are nonsectarian, proponents of this view press governments to withhold recognition or benefits from those whose beliefs and practices they find objectionable or contrary to their morality. They justify the discrimination in the name of state neutrality.
Those familiar with the lower court decisions in the TWU case have seen this before. The Ontario Court of Appeal decision, for example, said a law society is justified in withholding accreditation because of the religious character and related conduct expectations at TWU.
The B.C. Court of Appeal took a different tack. In its view, accrediting TWU would simply recognize that TWU can meet the standards established for training lawyers. It would not mean the government is affirming the religious beliefs or practices of TWU. From this perspective withholding accreditation because of the religious nature of TWU would be contrary to the state remaining religiously neutral.
Clearly, it’s important we reach agreement on what it means for the state to be religiously neutral. If you are religious, should governments discriminate by withholding services, protections or benefits? Or should they treat you the same regardless of your religion or faith commitment (including those who claim none)?
Several years ago the Supreme Court acknowledged that, ultimately, the state can’t be neutral with respect to religion. The justices wrote, "Trying to achieve neutrality in the public sphere is a major challenge for the state," and "We must also accept that, from a philosophical standpoint, absolute neutrality does not exist" (S.L. v. Commission scolaire des Chênes).
Nonetheless, the court went on to say, the state must be as neutral as possible, and that "State neutrality is assured when the state neither favours nor hinders any religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected."
In Canada we do not have the formal constitutional separation of church and state as in the U.S., and our history is replete with examples of governments funding religious schools and working with religious organizations to serve the public good.
For example, The Salvation Army is the largest nongovernmental social service provider in Canada. And many Christian relief and development organizations receive matching funds from the Government of Canada.
Being a religious organization in itself does not, and should not, disqualify a group from receiving a public benefit
Historically Evangelicals were the dissenters or nonconformists theologically and were discriminated against because of our unpopular beliefs. In some cases we were prevented from serving in public office or from the practice of law.
State neutrality came about precisely to address these kinds of injustices. It has traditionally been understood to mean governments will be nonsectarian and treat everyone the same regardless of their beliefs or religious practices, or lack thereof. Justice, or the government, is to be blind to religious differences.
In this view there could still be reason not to accredit TWU, as its own lawyers conceded in the Supreme Court. If the TWU religious character and behaviour covenant resulted in TWU graduates being unable or unwilling to meet the standards of the law society, or serve in the public interest as lawyers, then it would make sense to deny accreditation.
Of course, there is no such evidence, and TWU has an excellent track record of graduating students in a variety of professions who serve well.
Let’s remind each other that we exercise our faith in part to be a blessing to others. And let’s be wary when the language of neutrality is used to justify the denial of services to a group, rather than to be nonsectarian and as fair as possible.
Author:
Bruce J. Clemenger