its students unfit to teach in the public school system. The university sued and the Supreme Court, dividing eight to one, ordered the College of Teachers to accredit the program.
The Court rejected the argument based on the equality rights of section 15: “To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.” The College of Teachers could appropriately consider equality rights, but it was also required to consider, as it had not, the right of religious freedom. Neither right is absolute. “TWU’s Community Standards, whichare limited to prescribing conduct of members while at TWU, are not sufficient to support the conclusion that BCCT should anticipate intolerant behavior in the public schools. Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.”
This is obviously not a case in which religious beliefs always trump the protection of homosexual conduct. Yet, given the American Supreme Court’s hostility to religion and solicitude for homosexuality, it is easy to think the decision might well have gone the other way in the United States.
Abortion
Abortion occupies an identical position in the Canadian
Charter
and in the American Constitution: both documents are silent on the issue, leaving the dispute between the opposing forces for resolution in the political arena. Section 7 of the
Charter
, which protects the right to life and the right to liberty, can be appealed to by both the anti-and the pro-abortion factions. From the beginning, then, the Supreme Court should have stated that neither provision was enacted with abortion in mind, and that the
Charter
, having deliberately avoided the issue, had nothing to say and so the issue must remain with the legislature. In Canada, however, the anti-abortion side actively but futilely sought a Court ruling that the “rightto life” guaranteed in section 7 of the
Charter
banned abortion. In the United States, pro-abortionists aggressively sought a ruling that abortion is a constitutional right and achieved victory in 1973 in
Roe
v.
Wade
. Anti-abortionists’ argument that abortion is forbidden by the guarantee against the deprivation of life without due process of law in the Fifth and Fourteenth amendments has, predictably, met with no success.
The outcomes have been similar in Canada and the United States because feminists and their New Class allies in both countries overwhelmingly support abortion rights. Given the judicial identification in both countries with those groups, the pro-abortion side has won. The political response to the judicial encouragement of abortion has not been as different in Canada and the United States as might have been expected, given the
Charter’
s notwithstanding clause – which, theoretically, is much more easily invoked than the American Constitution’s difficult procedure for securing an amendment. Yet the capacity for effective political response in the two countries is about the same: nil. Once a supreme court has spoken, creating what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously been unable to prevail in the legislature. Unless the government, national or provincial, is determined – unless restoring the previous position, the
status quo ante
, is an important part of its agenda (which in the case of abortion it never is) – the notwithstanding clause will remain unused and the pro-abortion forces will have won whatthey could not previously persuade the people and the legislature to accept. As a result, the number of abortions in Canada rose
The Court rejected the argument based on the equality rights of section 15: “To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.” The College of Teachers could appropriately consider equality rights, but it was also required to consider, as it had not, the right of religious freedom. Neither right is absolute. “TWU’s Community Standards, whichare limited to prescribing conduct of members while at TWU, are not sufficient to support the conclusion that BCCT should anticipate intolerant behavior in the public schools. Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.”
This is obviously not a case in which religious beliefs always trump the protection of homosexual conduct. Yet, given the American Supreme Court’s hostility to religion and solicitude for homosexuality, it is easy to think the decision might well have gone the other way in the United States.
Abortion
Abortion occupies an identical position in the Canadian
Charter
and in the American Constitution: both documents are silent on the issue, leaving the dispute between the opposing forces for resolution in the political arena. Section 7 of the
Charter
, which protects the right to life and the right to liberty, can be appealed to by both the anti-and the pro-abortion factions. From the beginning, then, the Supreme Court should have stated that neither provision was enacted with abortion in mind, and that the
Charter
, having deliberately avoided the issue, had nothing to say and so the issue must remain with the legislature. In Canada, however, the anti-abortion side actively but futilely sought a Court ruling that the “rightto life” guaranteed in section 7 of the
Charter
banned abortion. In the United States, pro-abortionists aggressively sought a ruling that abortion is a constitutional right and achieved victory in 1973 in
Roe
v.
Wade
. Anti-abortionists’ argument that abortion is forbidden by the guarantee against the deprivation of life without due process of law in the Fifth and Fourteenth amendments has, predictably, met with no success.
The outcomes have been similar in Canada and the United States because feminists and their New Class allies in both countries overwhelmingly support abortion rights. Given the judicial identification in both countries with those groups, the pro-abortion side has won. The political response to the judicial encouragement of abortion has not been as different in Canada and the United States as might have been expected, given the
Charter’
s notwithstanding clause – which, theoretically, is much more easily invoked than the American Constitution’s difficult procedure for securing an amendment. Yet the capacity for effective political response in the two countries is about the same: nil. Once a supreme court has spoken, creating what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously been unable to prevail in the legislature. Unless the government, national or provincial, is determined – unless restoring the previous position, the
status quo ante
, is an important part of its agenda (which in the case of abortion it never is) – the notwithstanding clause will remain unused and the pro-abortion forces will have won whatthey could not previously persuade the people and the legislature to accept. As a result, the number of abortions in Canada rose
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