Some Morals Make Bad Law


Last month, I responded to George Weigel’s commencement address to the law students of Ave Maria University, in which he urged prospective Catholic lawyers to fight the philosophy of legal positivism, which takes the perspective that there is no necessary connection between law and morality. Positivism also holds that a law promoting an immoral end is still a valid law, unlike the natural law legal theory of Thomas Aquinas, Pope Leo XIII, and even Martin Luther King Jr., who all argue that an immoral law is not a valid law. In response, I pointed out that judges who see law as necessarily connected to morality may still issue rulings that are, from the Catholic perspective, nonetheless immoral; the problem is not that they see law as having nothing to do with morality, but that they see law as intrinsically connected to flawed moral standards.

One example I used was the Canadian Charter of Rights and Freedoms, which sets out various rights and freedoms Canadian governments must respect when passing and enforcing laws. I suggested that in Canadian law, laws must necessarily be connected to Charter morality in order to be valid, which seems to be an expression of natural law legal theory. However, this Charter morality may serve to make practices such as physician-assisted suicide not only legal, but a constitutional right. From a Catholic perspective, this is clearly morally unacceptable and results from applying an insufficient moral standard that does not understand the nature of suffering or the dangers of endorsing self-destruction. The Catholic view is that Canadian law must respect a set of moral standards that do not protect the gift of life, and therefore it is necessarily flawed.

The problem with my argument last month is that the Charter, as part of the Canadian constitution, can also be understood as an expression of legal positivism, in that it matters not whether laws are consonant with morality so long as they are consistent with the fundamental law of the land: the constitution. According to this view, Charter morality only exists because it has been promulgated by the proper authorities, meaning Charter jurisprudence may be better understood as positivist.

However, shortly after I submitted my essay for publication, the Supreme Court of Canada issued its decision in Law Society of British Columbia v Trinity Western University. The majority ruling relied heavily on a connection between law and morality, even morality not enshrined in written law. This much better demonstrates my contention that the danger Catholic lawyers must fight is not the belief that law is not intrinsically connected to morality, but the association of law with flawed morality.

Charter morality

Trinity Western University (TWU) is a private Evangelical postsecondary institution that was seeking to open a law school. TWU students must adhere to a community covenant that, among other things, promises abstinence from sexual activity outside of marriage between a man and a woman. The Law Society of British Columbia refused to accredit TWU’s proposed law school because it objected to that condition of the covenant.

The Supreme Court found the Law Society’s decision was reasonable, despite it infringing on the freedom of religion of TWU students. The Court based its decision on what it found the Law Society’s powers to entail under the governing legislation. To find the decision was reasonable, it cited the analytical framework from Doré v. Barreau du Québec, which outlines how to evaluate administrative law decisions that engage Charter rights. According to Doré, the question is “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.” This analysis involves deciding whether the decision-maker (in the TWU case, the Law Society) “has properly balanced the relevant Charter value with the statutory objectives.” These Charter values underpin the rights enshrined in the Charter and give them meaning while remaining distinct from those rights.

Regarding TWU, the majority of the Supreme Court found the Law Society engaged in the proper balancing of Charter values. The problem is that, as dissenting Justices Brown and Coté point out, Charter values

are unsourced. They are, therefore, entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so. And, perhaps one judge’s understanding of “equality” might indeed represent a “shared value” with all Canadians, but perhaps another judge’s might not. This in and of itself should call into question the legitimacy of judges or other state actors pronouncing certain “values” to be “shared”. Canadians are permitted to hold different sets of values. One person’s values may be another person’s anathema…

Secondly, and relatedly, Charter “values”, as stated by the majority, are amorphous and, just as importantly, undefined. Lacking the doctrinal structure which courts have carefully crafted over the past 35 years to give substantive meaning to Charter rights (including the right to equality) and to guide their application, Charter values like “equality”, “justice”, and “dignity” become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined “values”, over other values and over Charter rights themselves.

These values do not exist in any constitutional text, but a robust and proportionate balancing of these values – to use the Court’s language – may suffice to justify a decision that infringes upon the rights and freedoms actually enshrined in the Constitution. The Doré framework is not just saying the Charter is necessarily connected to some sort of morality, but that there is a morality not specifically enshrined in law that can effectively operate as law and which judges must take into account when considering certain issues. This is clearly not legal positivism, but it is still problematic.

An insufficient natural law

The morality of Charter values is insufficient, as the dissent observes, because of its vagueness. The term “equality”, for example, can mean different things for different judges seeking different ends. As Howard Anglin of the Canadian Constitution Foundation, says, the Supreme Court is continuing

its watering down of Charter rights by interchangeable use of the slippery term “Charter values.” Considering we can’t agree on the scope of actual, written Charter rights, the introduction of this nebulous broader concept can only wreak mischief.

[Justice] Rowe rightly hones in on this problem in his section of the LSBC decision called “The Problem With Charter Values.” Quote: “This lack of clarity is an impediment to applying a structured and consistent approach to adjudicating Charter claims.”

Anglin further notes:

The state is obliged by the Charter to accommodate difference (e.g., religious differences). That is essence of a Charter right: to be free from state interference. But here the majority says the State can invoke undefined “Charter values” to compel conformity by a private actor.

So, according to the majority in this case, not only does the state *not* have a duty to accommodate minority views/differences, it can actually cite the Charter to eliminate difference and force a private actor, who is not bound by the Charter, to accommodate the difference.

This is what Brown/Coté mean when they say that the decision “turns the protective shield of the Charter into a sword.” The Charter is supposed to *protect* minorities from *state* action; it doesn’t impose burdens on them. The decision inverts the purpose of the Charter.

Charter values are an unwritten morality that the Court treats as so necessarily connected to law that they can basically operate as law, and indeed override what is actually established as law. Surely to use such nebulous concepts as a sort of unwritten law is to undermine the rule of law in fact. Laws will become uncertain because the undefined morality underpinning them may operate in unpredictable ways, given the understanding and disposition of the judge, and could even go so far as to undermine the party relying on his written Charter rights, as Anglin suggests. Given all this, it is clear Catholics cannot simply say that laws must be consistent with moral standards, otherwise they are not truly law. Instead, all lay Catholics, not just the lawyers, must show which specific moral standards offer a coherent and stable foundation for law, and establish a climate in which the Catholic moral vision shapes the moral imagination of those who pass and apply laws.

It is important to note that Charter values are not problematic from a Catholic perspective alone, but from any perspective concerned with ensuring that the laws which are actually promulgated are enforced. A framework operating to make it easier for the government to infringe on constitutionally protected rights by compelling the actor with delegated state authority to show only that it robustly and proportionately balanced all interests, instead of demonstrating the violation was minimally impairing or of pressing necessity, as is required when Parliament passes laws violating rights, is unsettling for all.

The religious freedom of lawyers and laity

Furthermore, while Anglin points out this ruling imposes conformity on private actors not actually bound by the Charter, it is also important to note that the majority ruling found that, as the code of conduct was not essential to Evangelical faith, the Law Society’s infringement on religious freedom was relatively minor. Both the dissenting judges and the concurring Chief Justice McLachlin reject this reasoning, but it still carried the day. This allows the state frightening scope to intrude on the constitutionally guaranteed freedom of religion and conscience, if only infringements on essential beliefs are severe enough to warrant censure. It should not be the government’s or the court’s role to weigh the importance of a belief; the fact that it is sincerely held and interfered with is enough to constitute an infringement.

Surely judges would not accept the government infringement of the conscience rights of a nihilist by forcing him to approve of some theological position. Though he might believe his action carries no cosmic or spiritual significance, this would not mean the infringement of his conscience rights is but a trifle. One might think the cases in which atheists object to prayers at city council meetings might be resolved rather differently; if they are atheists who don’t believe anything matters, how can prayer constitute a significant infringement on their rights? There would be no legal protection for the conscience of such people, which undermines the purpose of the Charter. This is a turn in Canadian jurisprudence that, as Dwight Newman of the University of Saskatchewan says, guts religious freedom. If only the most essential beliefs of a person are worth protecting, it is possible the Court will end up finding that many beliefs, proportionately balanced with the administrative decision-maker’s statutory objectives, are relatively inessential, and individual rights can be trumped by the state’s priorities. A Charter jurisprudence that truly worked to protect the rights of individuals would not be so narrowly applied.

The TWU decision shows firstly the true snare of contemporary legal theory: not legal positivism, but an undefined and rootless natural law, which Bruce Pardy of Queen’s University describes as being just “the vibe of the thing.” It also shows the urgency of all lay Catholics to act in the public sphere as Catholics specifically, not just generic citizens. The Law Society was ostensibly not concerned that TWU graduates would not be fit to operate as lawyers due to their values; neither should society be concerned that Catholics be less fit to work in the world because of their values. Catholics must prove this to be true, not by minimizing their beliefs, but by making them central to their action. Lay Catholics must make clear that when they act in the world, by giving charitably, or by seeking the common good, they do so specifically as Catholics; not because of some deracinated ethic. Indeed, all people must do this, to demonstrate that we have no inessential beliefs. The Catholic lawyers might have a special, more focused task to enter the arena of legal argumentation in order to shape and apply laws, but it remains the vocation of all the laity to create a culture in which those laws are seen to bear fruit.

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