Legal Docket: A big blow to a Canadian Christian university

NICK EICHER, HOST: It’s Monday morning, start of a new week for The World and Everything in It. Today is the 18th of June, 2018.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Later this morning, I expect the U.S. Supreme Court to issue more rulings. But for now, we have several rulings from last week to report.

And before getting to that, I want to tell you about a ruling from the Supreme Court of our neighbor to the north: a severe blow for religious freedom. Canada’s Supreme Court ruled against the right of a Christian school to operate under Christian principles.

EICHER: The case involves a school founded in 1962 in Langley, British Columbia, Trinity Western University.

The founders gave the school a mandate to teach from a Christian worldview. And it maintains for students and faculty a very specific, Bible-based code of conduct.

Trinity Western now serves 4,000 students in its undergraduate and graduate programs. Market research showed demand for a Christian legal education, so the school applied to the law societies in each Canadian province for accreditation of its planned law school.

Law societies in six of Canada’s provinces did grant accreditation. But two would not: Trinity’s home province, British Columbia, as well as the most-populous province in the country, Ontario.

The Supreme Court of Canada affirmed the Ontario and B.C. law societies, and that will now become national policy.

REICHARD: By a ruling of 7 justices to 2, Canada’s high court decided the code of conduct Trinity Western asks students to sign discriminates against gay people.

The community covenant includes a pledge not to lie, steal, cheat, curse, get drunk, use pornography—and to abstain from sex outside Biblical marriage. That last aspect was intolerable to the majority, as you can hear from these comments of judges during arguments back in November:

JUDGE: What you are precluding. Everything feels anodyne. You can’t slander, you can’t harass, you can’t lie, you can’t steal, dehumanize, drunk, drugs … and you can’t have a different sexual orientation … one of these is not like the others. One of these is protected by the Charter

WAGNER: …and the law society is a public entity, and the first mission of the law society is to protect society and uphold the rule of law. So how can you reconcile this obligation of the law society to uphold the law and then the Charter of Rights with obvious discrimination which is brought by the covenant of the Trinity college?

REICHARD: Just hours after the ruling came down, I spoke with Trinity Western University professor Janet Epp-Buckingham. She co-wrote the proposal for the law school.

I first asked Epp-Buckingham what the ruling actually says.

EPP-BUCKINGHAM: …Most of the judges recognize that religious freedom was violated for Trinity Western University in this case. But they have a ultimately ruled the law societies had the ability and the authority to refuse to approve this law school. We’re very saddened that this Supreme Court has made this decision—that there isn’t room in Canada for a small Christian university holding to traditional Christian values to open a law school.

REICHARD: When Canada legalized same-sex marriage in 2005, very specific language was included to protect those who have a different view on the purpose and nature of marriage. What happened to that?

JEB: …The…legislation changing the definition of marriage that says it is not against the public interest to hold and publicly expressed diverse views of marriage. And when we raised that in court in November when this case was heard by our Supreme Court of Canada, the judges didn’t seem very interested or convinced…. It was almost like, oh yeah, well that was then. Now we’re dealing with a new reality, and one of the things that shows is that when there are major legal changes, it does seem to change the channel in everything….

REICHARD: Two dissenting judges had another perspective. What did they say?

JEB: Well, I think that the dissenters really understand the nature of religious institutions and religious freedom… it does seem that don’t give full weight to the community aspects of religion and religious freedom. They really seem to prefer an, an individualistic approach and will decide in favor of people who want to have individual right,  I have the individual right to do what I want as opposed to a community of faith that say these are the rules that we have agreed to live by in our communities.

REICHARD: But how is this consistent when, for example, the Liberty Party of Canada insists its candidates be pro-choice? Will free association be removed from political parties?

JEB: There really seems to be a disconnect. It’s, it’s okay to require certain values but not other values. So for example we also have had another situation where the government of Canada funds summer jobs for students and particularly for charities and NGOs and this year they put in a new requirement that in order to get that funding you had to sign onto a certain statement of values that was pro-choice and pro-same-sex marriage. Many religious charities that previously had gotten that funding therefore weren’t eligible for the funding because of this new requirement. But somehow when you raised the issue of, well,…you’re imposing your values on all of these different individuals and organizations. And yet you won’t allow Trinity Western within its own community to say what our values are and to try to live by them. It seems hypocritical to me.

That was Janet Epp-Buckingham, professor at Trinity Western.

Her analysis reminded me of the lawyer on behalf of the school at argument, trying to remind the judges what was once common knowledge about the basics of free association. Listen to Kevin Boonstra:

BOONSTRA: …There is nothing marginal to evangelical beliefs in the community covenant. This is how they define the character of the religious community…The covenant itself is part of a self-definition of a religious community. The Charter protects the right to establish communities of faith like Trinity Western University. In order for any religious community to exist and thrive, it has to be able to define itself…

But it was not to be.

What the ruling means for Trinity Western University’s proposed law school going forward is still being worked out.

EICHER: Alright, well, to the United States Supreme Court now: Six rulings to report, and the biggie was the voter registration case out of Ohio (Husted v A. Philip Randolph Institute).

Big and bound to spark controversy because it was a 5 justices to 4 decision: The conservative four plus Justice Anthony Kennedy upheld a policy in Ohio to maintain accurate state voter rolls. If voters haven’t voted, and if voters ignore overtures from the state, election officials will remove them from the rolls.

During oral arguments in the case, you can perceive the logic of the eventual ruling in this comment from Justice Samuel Alito:

ALITO: You think that if somebody hasn’t voted for 20 years, that doesn’t raise an inference that the person has moved or died?

EICHER: In 2015, a man named Larry Harmon tried to vote, but could not because his name had been stricken from the voter registration list.

He’d not voted for seven years, and so election officials mailed a request to confirm his address. Harmon didn’t respond, so election officials took his name off the list.

So Harmon sued, and argued that Ohio violated federal election law. But the high court affirmed Ohio.

The four liberal justices in the minority were highly critical of the majority, accusing the five justices of ignoring the history of voter suppression.

REICHARD: Another ruling (Sveen v Melan) hands a win to the children of a deceased man in Minnesota whose ex-wife claimed rights to proceeds from his life insurance policy.

Many states have a law like Minnesota’s that removes an ex-spouse as primary beneficiary automatically in case of divorce.

But the ex-wife pointed out the state passed that law after the man agreed to terms in the insurance policy, and so she was entitled to a $180,000 payout. The high court disagreed and awarded the money to the man’s children.

The case wasn’t close: Eight justices ruled against the ex-wife with only one dissenter.

EICHER: This next case (Washington v United States) was so close it was inconclusive. It ended in a 4-to-4 tie, because Justice Anthony Kennedy had to recuse himself.

So the result is that a lower court decision will stand, and Washington State will have to replace nearly 1,000 flood-control culverts across the state.

The net effect is that the state is bound by treaty agreements from the 1850s that promised fishing rights in exchange for Native American land.

Here’s the chain of logic: The current culverts interfere with salmon migration, which is crucial to their reproductive cycle. That diminishes the population of fish and therefore diminishes the promised fishing rights.

So to secure those rights, the lower court ruled Washington state must build culverts that promote, not impede, salmon migration.

REICHARD: This next case (Minnesota Voters Alliance v Mansky) had seven justices affirming First Amendment rights. The decision strikes down a Minnesota policy against voters entering the polls wearing clothing with certain political messages.

In this case, a man tried to vote while wearing a shirt with the Gadsden flag. That’s the one bearing the slogan “Don’t tread on me.” He was also wearing a button that read, “Please I.D. me.”

Election judges turned him away from voting, so he sued, claiming free speech and equal-protection violations.

You can hear a foreshadowing of the eventual ruling in this comment by Justice Alito during oral arguments in February:

ALITO: And the problem is that so many things have political connotations. And the connotations are in the eye of the beholder. And on election day, you’re going to have hundreds -maybe thousands- of election officials in Minnesota and everyone of them probably thinks that he or she is the reasonable observer and they’re making a determination about whether something has political connotations.  

The ruling held that Minnesota’s law is too broad and too vague to be useful to voters to know what to do without being subject to the whims of an election official.

The case is reversed and remanded for further proceedings.

EICHER: A unanimous court ruled to limit when certain class actions can be filed. (China Agritech, Inc. v Resh)

The decision says a member of a failed federal class action may not start a new one after the statute of limitations has run out in the first one.

REICHARD: And our last ruling today. (Animal Science Products, Inc. v Hebei Welcome Pharmaceutical Co)

Now, this case is different, in that it involves the relationship of United States law to that of other nations, and the high court here was unanimous.

The decision says federal courts in this country don’t have to accept as binding statements from foreign nations about their own laws.

In this case, two American importers sued a Chinese manufacturer of Vitamin C for price fixing. The manufacturer replied simply that Chinese law required the price fixing and so the case should be dismissed.

The high court disagreed and sent the case back to lower court.

EICHER: The Supreme Court has 14 cases left to decide—minus whatever decisions it hands down this morning—with a deadline to render opinions by June 29th. And that’s this week’s Legal Docket.

(AP Photo/Jessica Gresko, File) This April 23, 2018, file photo shows the Supreme Court in Washington. 

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