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The Charter Is Not a Blueprint for Moral Conformity

48 Pages Posted: 9 Sep 2017  

Barry W. Bussey

Leiden University, Leiden Law School

Date Written: August 31, 2017

Abstract

Canadian jurisprudence is earnest in supporting diversity and religious freedom. It is in the context of the same-sex marriage debate, that commitments were made by Canadian political leaders, and by the S.C.C. in both the TWU 2001 and Reference cases to support diverse views on marriage and political liberation. TWU deserves its accreditation because of the following points: first, state “neutrality” requires the Canadian state to respect and conditionally defer to the morally laden belief systems of religious associations rather than to assume, as some seem to interpret the term, a commitment to no moral position(s). Such deference is not absolute, but should be extended absent an infringement of traditional health and safety concerns of the state. When TWU takes the position that traditional marriage is a moral truth, the state must, with the boundaries of health and safety, respect and protect it, even though it might not agree. Second, there is no law against TWU’s practice of traditional marriage. Thus, it is hard to argue that to limit marriage to its traditional mode within a voluntary community somehow threatens the health or safety of others. Third, the concept of “Charter values,” such as equity or pluralism, cannot properly mean the elimination of Charter rights, such as freedom of religion, speech, and association. Justice Campbell, was correct to note that the Charter cannot be the moral blueprint for our society, as the state has no secularizing mission. The Charter is not a sword to enforce state ideology but, rather, a shield to be used to protect individuals and groups from the state.

Keywords: Law and Religion, Trinity Western University Law School

JEL Classification: K19

Suggested Citation

Bussey, Barry W., The Charter Is Not a Blueprint for Moral Conformity (August 31, 2017). Available at SSRN: https://ssrn.com/abstract=3032525

Barry Winston Bussey (Contact Author)

Leiden University, Leiden Law School ( email )

Leiden
Netherlands

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