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UnVriendly precedent

International | High Court homosexuality case threatens religious freedom

Issue: "Walk the Talk," Nov. 15, 1997

In 1991 Delwin Vriend wore a pink triangle lapel pin to work, a proud badge of his homosexuality. But the triangle was too much for the long-suffering administration at The King's University College, the small Christian Reformed liberal arts college in Edmonton, Alberta, where Mr. Vriend worked as a laboratory coordinator. When Mr. Vriend "came out," school administrators, who had known about his homosexuality for more than a year, felt they had to fire him. Mr. Vriend went to court, and on Nov. 4 and 5, his case was finally heard by Canada's Supreme Court.

Instead of attacking the college for treating him unfairly, Mr. Vriend sued the Alberta provincial government. Alberta is one of only four jurisdictions in Canada (Newfoundland, Prince Edward Island, and the Northwest Territories are the other three) that do not include homosexuals as a protected category in their human-rights code. Mr. Vriend wants the courts to force the Alberta Human Rights Commission to accept his complaint that he has been discriminated against because of his sexual preference.

The importance of Mr. Vriend's case goes far beyond the immediate issue of religious freedom. "We think this is a watershed case," says Gerry Chipeur, the Calgary constitutional lawyer who represents intervenors Focus on the Family-Canada and the Evangelical Fellowship of Canada. "If [Mr. Vriend] wins it will mean that judges have completely taken over the mantle of legislators in Canada. They will have begun to write entire phrases into the laws passed by our legislators."

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Mr. Vriend got what he wanted at his first trial. In April 1994, Madam Justice Anne Russell of the Edmonton Court of Queen's Bench admitted that he had not proved he belonged to a minority that had suffered historic discrimination. But she decided to accept his claim anyway and ruled that "sexual orientation" should be read into Alberta's Individual Rights Protection Act (IRPA) as a protected category. Without any evidence to support her theory, Madam Justice Russell stated that "it is safe to assume the legislature would have preferred an Act with sexual orientation included to no Act at all."

Six months later, in a move widely seen by critics as a reward for her efforts on behalf of the homosexual lobby, Ms. Russell was promoted by then Canadian Justice Minister Allan Rock to the Alberta Court of Appeal. Her promotion, characterized by one senior Alberta lawyer as "absurd" in light of her limited experience, meant that she sat as a member of the three-judge panel that heard the Alberta government's appeal of her original decision. However, in a move few expected, the other two judges overturned her decision. The majority judgment even called on "crusading" and "ideologically determined" judges to practice restraint.

The Supreme Court's decision may not be released until next fall. But supporters of the King's College hold out little hope that the high court will follow the appeal court's lead. In previous cases the court has already shown itself friendly to the homosexual agenda. Furthermore, there are 15 intervenors on Mr. Vriend's side, a list that includes such powerful supporters of left-wing causes as the United Church of Canada, the Canadian Bar Association, the Alberta Civil Liberties Association, and the Canadian Jewish Congress.

In a signal to the Supreme Court, Alberta Premier Ralph Klein told reporters two months ago that his government would have to add sexual orientation to the law if that is the court's desire. However, the government has the power to invoke a special "notwithstanding clause" within the Canadian Charter of Rights and Freedoms that allows provinces to ignore Supreme Court interpretations.

Only four groups have lined up with the Alberta government to fight for the King's College's constitutional rights. Despite the odds, Mr. Chipeur does not sound worried. "In my view our arguments are sound and the Alberta government is in an unassailable position," he says. Mr. Chipeur holds that IRPA's failure to mention homosexuals does not imply discrimination against them. And he will point out that the Canadian Charter's constraints on discrimination apply only to government actions.

Henk Van Andel, president of the King's College, refuses to speculate as to what his school will do if the Supreme Court rules against the provincial government and homosexuals can no longer be fired. But Mr. Chipeur says his reticence is simply good strategy. "By staying away from the issue," Mr. Chipeur explains, "the college helps keep the focus on legal questions, not religious beliefs."

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