In the American state of Colorado, a Christian baker refuses to create a cake for the celebration of a same-sex union.[1]<\/a> Meanwhile, in the Canadian province of British Columbia, a Christian evangelical university imposes a code of conduct prohibiting same-sex sexual intimacy, leading the law societies of British Columbia, Ontario, and Nova Scotia to refuse to accredit its proposed law school. The three law societies justify their refusal by pointing to the discriminatory nature of the code.[2]<\/a> For some, these two high-profile cases, decided by the highest American and Canadian courts in 2018, simply embody the \u201cirresolvable\u201d tension between liberty and equality confronting liberal democracies. While they are indeed intelligible through this lens, we submit in this article that the complexity of these two cases extends far beyond it.<\/p>\n Indeed, these cases are part of a larger legal trend in which religious actors\u2014here, a \u201cdevout Christian\u201d[3]<\/a> and an evangelical institution\u2014argue that the equality rights of others conflict with their own religious freedom. For them, complying with modern LGBTQ2+[4]<\/a> anti-discrimination protections would compel them to act in ways that contravene their beliefs.[5]<\/a> Exemptions from anti-discrimination laws are thus sought by such believers in areas such as housing, education, employment, health care, adoption, and marriage-related provision of goods and services. Such cases, particularly in the United States, are litigated by highly organized and long-standing opponents to LGBTQ2+ rights, such as the Alliance Defending Freedom.[6]<\/a> The point of interest of this legal trend is that, in claiming minority status for themselves and arguing that they have become a disadvantaged group in need of protection, religious actors opposing LGBTQ2+ rights are upending equality rights jurisprudence in the United States and Canada in a discursive process we term the \u201cminority label.\u201d[7]<\/a><\/p>\n In this new paradigm,[8]<\/a> religious believers refusing to comply with LGBTQ2+ anti-discrimination protections are no longer members of an oppressive majority seeking to impose traditional morality norms upon others. Rather, they depict themselves as lone dissenters who have lost the culture war on morality,[9]<\/a> and who simply seek to protect \u201cwhat is left\u201d of their religious freedom. This is a value which, they argue, \u201chas been relegated to a narrow, private sphere [and] which must be \u2018closeted\u2019 from public display.\u201d[10]<\/a> In other words, these religious believers are recast as a minority requiring protection from \u201cliberal orthodoxy,\u201d where equality rights constantly trump religious freedom. Hence, while their beliefs have not changed, conservative religious groups invoking the minority label contend they no longer speak as a majority: they rather speak as a new minority seeking exemptions from anti-discrimination laws to be able to protect their freedom of religion.[11]<\/a><\/p>\n The use of the minority label by these religious groups can be seen as an attempt to achieve what Reva Siegel calls \u201cpreservation through transformation.\u201d[12]<\/a> This expression designates a dynamic through which actors resist contemporary discarding of conservative legal rules by trading arguments that have lost their mainstream appeal for others that better echo modern sensibilities. Their hope is to have these former legal rules reached though an alternative path that is more credible, which would re-legitimize their unchanged policy preferences.[13]<\/a> The use of the minority label to oppose LGBTQ2+ rights follows this logic: conservative religious believers have set aside a discourse focused on the preservation of traditional mores in favour of arguing that opposition to queer unions is a respectable, minoritarian religious belief warranting protection in the name of the right to religious freedom and equality.<\/p>\n This discourse differs from prior legal claims to minority status in the context of religious freedom in at least two important and interrelated ways. First, claims for protection on the basis of minority status have spread from discrete and insular communities often holding uncommon beliefs to claimants whose beliefs have long held a mainstream legal and social status and which continue to be shared by many.[14]<\/a> This makes the mobilization of the minority label appear counterintuitive\u2014as Melissa Murray points out, these claimants are not the traditional \u201cimagined subjects\u201d of anti-discrimination protections.[15]<\/a> Second, the concept of \u201cminority\u201d is now deployed to contest anti-discrimination law norms by framing disputes as consisting of conflicting claims between the rights of two minorities equally in need of protection. Subjects and detractors of anti-discrimination protections are thus placed on par with one another.<\/p>\n This novel argumentative strategy is at the heart of the two aforementioned recent LGBTQ2+ rights-related decisions: Masterpiece<\/em> Cakeshop v. Colorado Civil Rights Commission<\/em>[16]<\/a> (Masterpiece Cakeshop<\/em>), from the US Supreme Court, and Law Society of British Columbia v. Trinity Western University<\/em>[17]<\/a> and its sister case Trinity Western University v. Law Society of Upper Canada<\/em>[18]<\/a> (hereinafter referred to together as \u201cTWU<\/em>\u201d), from the Supreme Court of Canada. The efforts of members of conservative Christian groups to claim minority status to justify their non-compliance with anti-discrimination laws in these cases inform us of the persuasive potential of the minority label. It also highlights what is at stake in accepting or rejecting the believers\u2019 non-compliance requests.<\/p>\n This article thus seeks to shine a light on the minority label and to dissect its persuasive mechanics by studying the judicial narratives crafted by parties, courts, and media around these two decisions. In our discussion, we retrace how religious believers opposing LBGTQ2+ The article proceeds in two parts. Part I presents the conditions of possibility of this discourse by listing the various elements accounting for the development of the minority label rhetoric among religious opponents to LGBTQ2+ rights. In Part II, we examine how the minority label operates as a rhetorical process in the discourse of parties, courts, and media. Three main argumentative strategies will be discussed: language framing, moral symmetry arguments, and respectability claims. For each strategy, we compare the reasons of the American and Canadian supreme court justices who adopted them in order to better understand how the minority label is received in each specific national context. We conclude by offering brief thoughts on the risks that the rise of such a discourse carry in the long term for LGBTQ2+ rights.<\/p>\n Various circumstances and factors contribute to the emergence and development of a discourse in which religious opponents to LGBTQ2+ rights can mobilize the minority label to demand exemptions from anti-discrimination protections. While exploring these circumstances and factors in detail goes beyond the purpose of this article, we wish to highlight their existence in order to lay the basis of an explanation of how this discourse became possible<\/em>. Its emergence is grounded in a combination of socio-historical factors and doctrinal elements extracted from the legal understanding of religious freedom. Together, these preconditions opened a space for the minority label discourse to develop. The main elements of this \u201cperfect storm\u201d are outlined below.<\/p>\n <\/p>\n Such a use of the minority label by religious groups is uniquely modern in that it owes its emergence to at least three main socio-historical phenomena: advances in LGBTQ2+ rights, a shift in demographics, and the normalization of reverse discrimination claims.<\/p>\n The new discourse studied here is a direct response to recent LGBTQ2+ rights mobilization and victories. Simply put, LGBTQ2+ discrimination first needed to be largely prohibited in the private sphere for opponents to be able to claim that such prohibitions interfered with their right to live according to their private religious beliefs. Indeed, when the debate pertained mostly to the public sphere, it was impossible for opponents of same-sex unions to portray themselves as a \u201ctargeted\u201d minority, as nothing was yet being directly asked of them as individuals.[19]<\/a> Hence, as the LGBTQ2+ rights movement progressed from public sphere victories (outlawing overt hostility and unequal treatment from state laws)[20]<\/a> to secular private sphere issues (banning private discrimination in commerce and services), the discourse of opponents adapted accordingly.[21]<\/a> The old rhetorical tropes appealing to traditional morality,[22]<\/a> which formed the main counter-discourse of conservative religious believers in public sphere debates, soon became of limited use. This is so not only because the ultimate failure to stop LGBTQ2+ rights advancement in the public sphere confirmed the decreased effectiveness of arguments rooted in traditional morality, but also because these arguments fail to resonate with what is at stake in the private sphere debate.<\/p>\n Indeed, the fact that LGBTQ2+ activists invoked their own right to individual freedom and personal privacy to counter traditional morality arguments during public sphere debates was seldom lost on their opponents. Now engaged in the private sphere terrain, these arguments were accessible to opponents of LGBTQ2+ rights, and presented significant rhetorical benefits. Chief among these advantages was that their claims could be situated on par with those of the LGBTQ2+ community. This is especially significant as these religious groups are now of the view that the legal recognition of same-sex marriage makes their <\/em>stance on the issue the unpopular one, leading them to consider themselves a new minority. In that sense, the 2015 US Supreme Court decision in Obergefell v. Hodges<\/em>, granting marriage equality to same-sex couples, is perceived by American religious opponents to LGBTQ2+ rights as clear confirmation of their new minority status, springing the minority label rhetoric into action.[23]<\/a><\/p>\n Hence, the advent of anti-discrimination protections for LGBTQ2+ citizens in the private sphere was a necessary precondition of the emergence of the discourse we study here.<\/p>\n The fact that certain Christian religious groups are now appealing to the minority label may also be explained by the apparent decline in Christian identity occurring in many Western democracies.[24]<\/a> A recent survey indicated that the percentage of Americans identifying as Christians went from 78.4% in 2007 to 70.6% in 2014.[25]<\/a> In Canada, national surveys indicate that 77.1% of Canadians identified as Christians in 2001, as compared to 67.3% in 2011.[26]<\/a><\/p>\n As demographics shift around them, conservative Christians might feel that they will lose the political power they once had to set the political agendas over moral issues. This is especially so given the fact that a section of the Christian population has come to support same-sex marriage. These changes thus call for new strategies not only in the political sphere, but also in the legal one. The mobilization of the minority label to support their demands for anti-discrimination exceptions is one such new strategy. The use of the minority label in the context of a demographic shift is of interest because Christians can still be said to be close to the centre of religious hegemony in the United States and in Canada, for the most part. The deeply held beliefs they seek legal recognition for\u2014that is, their religious opposition to same-sex marriage[27]<\/a>\u2014were until fairly recently the law of the land in both the United States and Canada. Today, these beliefs continue to be shared by many\u2014including other religious believers and non-believers. For this reason, their mobilization of the minority label in these circumstances appears counterintuitive.[28]<\/a><\/p>\n The adoption of a rhetoric defending the right of opponents to same-sex marriage to \u201creligiously dissent\u201d as a new minority was also facilitated by the American and Canadian legal orders\u2019 familiarity with the idea of \u201creverse discrimination.\u201d Indeed, precedents supporting the idea that a non-disadvantaged group can claim discrimination existed before the phenomenon studied here emerged. For instance, white people that constitute the racial majority in the United States have by now grown accustomed to finding ways to make use of anti-discrimination law protections for themselves.[29]<\/a> Notably, they have argued that affirmative action policies discriminate against them on the basis of race in the context of college admission and employment.[30]<\/a> At first glance, Canadian constitutional law appears protected against such a fate, as the formal entrenchment of section 15(2) of the Canadian Charter of Rights and Freedoms<\/em>[31]<\/a> (Charter<\/em>) ensures the legal viability of Canadian affirmative action policies. This is noteworthy because remedial programs are the first obvious targets for reverse discrimination claims, as demonstrated by the many challenges launched against them in the United States.<\/p>\n Yet, while section 15(2)\u2019s protection of remedial programs does make reverse discrimination claims less prevalent in the Canadian context,[32]<\/a> the ambiguous doctrinal framework that governs section 15(1) of the Charter<\/em> has allowed some reverse discrimination cases to thread their way in.[33]<\/a> Thus, even though the Canadian Supreme Court has rarely sided with these plaintiffs, it is nevertheless familiar with the paradigm in which such cases are being argued. As such, reverse discrimination claims are intelligible in the Canadian context as well and might have paved the way for the minority label.[34]<\/a><\/p>\n The existence of such precedents lays the groundwork for the articulation of a discourse in support of religious exemptions from anti-discrimination laws which protect LGBTQ2+ rights through the frame and language mobilized in equality rights cases. Indeed, some reverse discrimination cases bear similarities with the process described here. In both of them, opponents of the equality rights of groups traditionally covered by anti-discrimination laws are not depicted as discriminators, but as \u201cminorities\u201d who are victims of discrimination themselves.[35]<\/a> They want to situate their claims on par with the ones of the people whose rights they believe to be incompatible with theirs. Echoing the reverse discrimination framework, the minority label discourse benefits from intuitive legal intelligibility. As such, the normalization of reverse discrimination claims operates as a rhetorical precedent for the phenomenon we study here.<\/a><\/p>\n In addition to a changing socio-historical landscape, certain key legal doctrines contribute to the \u201cperfect storm\u201d leading to the development of the minority label discourse: the courts\u2019 conceptions of religion and religious freedom, the doctrine of complicity, as well as the place of pluralism and tolerance in the judiciary\u2019s set of values.<\/p>\n The courts\u2019 conception of religion and freedom of religion are two interwoven elements that offer religious believers contesting anti-discrimination law norms a solid legal apparatus. Inspired by the importance given to freedom of religion by their respective constitutional texts, American and Canadian courts consider religion to be a moral good: something that is worth protecting for its own sake. Indeed, whether this commitment is implicit (as in decisions where courts equate religion to an individual\u2019s place in the universe in relation to a divine power[36]<\/a> or to human dignity[37]<\/a>) or explicit (as in cases where religion is recognized as an integral part of one\u2019s identity[38]<\/a> or as a social tool instilling moral character and values[39]<\/a>), a positive view of religion prevails.[40]<\/a><\/p>\n Partly for this reason, both the American and Canadian supreme courts have long adopted a subjective, personal, and deferential definition of religious freedom which focuses on sincerely held beliefs.[41]<\/a> In other words, the content of religious beliefs is not assessed with regard to its \u201cobjective\u201d validity as to official religious doctrine; the fact that the claimant sincerely believes they have a religious obligation is sufficient.[42]<\/a> Among other concerns, this approach reflects the view that religion is in itself a common good, and one that courts should avoid tampering with. It also seeks to protect religious believers who might not adhere to the \u201cofficial\u201d interpretation of religious texts, and to promote debate between diverse members of the same faith.<\/p>\n An important implication of this approach is that the restraint of a \u201cvalidity\u201d inquiry extends not only to the source of the belief (e.g., interpretation of text, adherence with a specific sub-current within the faith), but also to its content. Courts thus refrain from deciding whether a belief is \u201cgood\u201d or \u201cbad,\u201d \u201cdiscriminatory\u201d or not. This approach has clear advantages, such as promoting a diversity of religious understandings, as well as of being useful in cases where courts are unfamiliar with the specific religion practiced by a claimant. But this doctrine also serves the judiciary\u2019s own interests, as it allows courts to steer clear of complex moral and religious doctrinal debates. Indeed, by not discarding anyone\u2019s beliefs at the outset, the courts can comfortably claim neutrality on these sensitive matters.[43]<\/a><\/p>\n The courts thus tend to take the substance of claimants\u2019 sincere religious beliefs outside the scope of legal debate and critique. Since religion is understood as a common good worth protecting in itself, and since religious claims are assessed only on the basis of sincerity,[44]<\/a> courts avoid discussion of the content of claimants\u2019 beliefs. This is a comfortable standpoint for them, from which they retain \u201cneutrality.\u201d However, the shortcomings of this approach become apparent in cases such as the ones discussed here: it is much harder for courts to avoid the content of religious beliefs when this content is precisely what is at stake. Such cases put courts in a deeply uncomfortable position.<\/p>\n Falling back on prior doctrinal commitments to avoid examining the content of religious beliefs can relieve some of that tension for courts, as religious claimants insist that the debate is only about the value of religious freedom itself. This creates an ideal playing field for them: as religion is deemed a broad moral good, attention is placed on its abstract, universal value, and is thus drawn away from the negative discriminatory content and effects of the specific religious beliefs at hand. The case then becomes solely about the tension between two rights\u2014religious freedom and equality\u2014that are placed on the same footing. Conservative religious claimants opposing LGBTQ2+ rights are likely to attract greater sympathy from courts with such a framework than they would if they were faced with doctrinal tests diving into the content of their beliefs, which would leave their discriminatory aspects open to critical probing.<\/p>\n Another doctrinal understanding which supports the development of the minority label rhetoric is the question of the degree of state interference required to constitute a religious freedom infringement. Coercion and impact are familiar types of \u201cburdens\u201d[45]<\/a> that the law can impose on believers. But a third emerging kind, \u201cratification,\u201d[46]<\/a> is behind the opposition to anti-discrimination law statutes. This burden is grounded in the doctrine of \u201ccomplicity,\u201d which asserts that the state cannot force religious believers to ratify or be complicit in a practice they believe to be contradictory to the precepts of their religion.<\/p>\n Believers invoking this doctrine claim that various degrees of \u201ccompelled participation\u201d in the contested practices constitute impermissible ratification. From \u201cdirect\u201d participation such as celebrating a wedding, to \u201cindirect\u201d participation such as creating a wedding cake, the factual situations that can constitute complicity abound. This doctrine\u2019s elasticity is most apparent in cases such as Wheaton College v. Burwell<\/em>,[47]<\/a> where the fact that a religious organization was exempt from providing contraception was deemed insufficient to ensure they were not made complicit in a practice they oppose. Since triggering that exemption would result in someone else providing the service, the organization argued that this legal scheme still made them complicit. This is an important effect of the complicity doctrine: because it gives rise to claims which have a peculiar focus on the conduct of others,[48]<\/a> it poses a greater risk of harm for other individuals than the more traditional freedom of religion claims.[49]<\/a> Indeed, part of what makes ratification claims so complicated is that they are about the religious believer\u2019s relationship with a third party.[50]<\/a> While still in its early stages and not always invoked successfully,[51]<\/a> the doctrine of complicity neatly translates religious opposition to LGBTQ2+ rights into the language of the law.<\/p>\n While the doctrine of complicity is familiar to Catholic theology, other religious groups also rely on this notion when seeking exemptions.[52]<\/a> In the United States, a broad \u201cconservative, cross-denominational coalition of Christians\u201d[53]<\/a> has emerged around the idea of preserving traditional morality. One of the strategies adopted by this coalition is to rely on the notion of complicity to obtain religious exemptions from anti-discrimination statutes protecting LGBTQ2+ people.[54]<\/a><\/p>\n A final element worth mentioning that facilitates recourse to the minority label is the prominent place that pluralism and tolerance holds in the judiciary\u2019s set of values. Indeed, Canada particularly prides itself\u2014both in judicial and political discourses\u2014in its pluralist, tolerant, and multicultural society, in which ethnic, religious, and cultural differences are acknowledged, respected, and celebrated.[55]<\/a> The same is true of the United States, where the values of pluralism and diversity have been stressed by the courts numerous times.[56]<\/a> There is no doubt that pluralism and tolerance are essential values in diverse societies. Yet, the exact outcomes they dictate in a given case are often a contested matter.<\/p>\n Freedom of religion is often explained as an essential means to promote pluralism.[57]<\/a> Likewise, the promotion of pluralism is frequently deployed by equality rights advocates as a core principle around which to articulate anti-discrimination strategies. The fact that both rights share this core justification provides the ideal confluence of values for conservative religious claimants to draw on equality rhetoric to obtain religious-based exemptions from anti-discrimination provisions.<\/p>\n In sum, various socio-historical and doctrinal elements account for the emergence of the minority label discourse studied here. Advances in LGBTQ2+ rights such as the recognition of same-sex marriage lend credibility to the idea that formal legal victories transformed pro-LGBTQ2+ views into a mainstream affair, relegating its opposition to a minority status. The settling of such \u201cpublic sphere issues\u201d also confined the debate to the private sphere, where opponents of LGBTQ2+ rights adapted to the different values in play by embracing the individual freedom and privacy arguments that they used to face. The normalization of reverse discrimination claims in contexts such as affirmative action debates confers intuitive appeal to their position, thus serving as a rhetorical precedent. The judicial desire to claim \u201cneutrality\u201d on sensitive issues, as well as the accompanying doctrine of subjective sincere beliefs and the idea that religion is a general common good, allows the minority label proponents to avoid having to defend the content of their (discriminatory) beliefs and practices. At the same time, the complicity framework neatly articulates the impact on their protected right. Finally, the ability to appeal to the deeply rooted ideals of pluralism and tolerance increases the minority label\u2019s compelling character. Together, these main factors made the emergence of the minority label discourse possible. <\/a><\/p>\n With this context in mind, we now turn to the two cases under analysis. As we will see, the reasoning applied in these cases reached markedly different results and\u2014more importantly\u2014demonstrates very different ways of assessing the minority label. Indeed, while this new discourse was openly embraced by many American Supreme Court justices, it attracted sympathy from only two of their Canadian counterparts.<\/p>\n Following a brief presentation of the facts of the two cases, we will shine a light on the three main argumentative strategies through which the minority label operates in these cases: language framing, moral symmetry arguments, and respectability claims.<\/p>\n Firstly, we will examine how religious believers presenting themselves as a minority in need of protection now frame their legal claims by explicitly using the language of equality and evoking its ethos.<\/p>\n Secondly, we will take a step back to consider the moral assumptions that this linguistic shift promotes. We will show that the minority label rests on a premise of \u201cmoral symmetry,\u201d that is, the idea that all distinctions are equally condemnable discrimination, regardless of context or power differentials at play. This presumed equivalence opens up the possibility of drawing on implicit associations existing between the term \u201cminority\u201d and experiences of oppression and social subordination. The central role played by this strategy will be apparent when we consider with whom these conservative religious claimants choose to equate themselves in their analogies. Indeed, claimants compare themselves with \u201ctraditional\u201d victims of discrimination in order to construct a narrative in which there is a commensurability between anti-discrimination laws imposing standards of conduct on conservative Christians and discrimination against the LGBTQ2+ community.<\/p>\n The final characteristic of the rhetorical apparatus of the minority label consists in reclaiming the respectability of the believers\u2019 views. By branding their views on subjects such as queer love as, at least, respectable, conservative religious believers curtail the process through which LGBTQ2+ rights advances could cement as an incontestable \u201cnew normal.\u201d This ensures that the widespread adoption and maintenance of these anti-discrimination norms remains a live issue in the coming years.<\/p>\n Before turning to the ways in which language framing, moral symmetry, and respectability claims unfold, let us briefly outline the two decisions under consideration.<\/p>\n In 2012, before same-sex marriage was legal in Colorado, Jack Phillips, a Christian baker, refused to create a wedding cake for a same-sex couple. The couple filed a complaint with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act<\/em>, which protects citizens against discrimination on the basis of sexual orientation in the enjoyment of public accommodations.[58]<\/a> Phillips argued that his faith prohibited him from creating a wedding cake for a same-sex wedding, as the expressive act of baking the cake would make him complicit in a practice he deeply opposes on religious grounds. He thus invoked his right to free exercise of religion and to free speech to justify his refusal of service. The Colorado Civil Rights Commission ruled in the couple\u2019s favour, determining that, if Mr. Phillips offered wedding cake baking services to heterosexual couples, he ought to provide the same services to same-sex couples.[59]<\/a> In addition to directing him to cease and desist from discriminating, the Commission also imposed training and compliance exigencies. The Colorado Court of Appeals affirmed the Commission\u2019s decision,[60]<\/a> and the Colorado Supreme Court declined to hear the appeal.[61]<\/a><\/p>\n For its part, the US Supreme Court sidestepped the main issue of the conflict between freedom of religion and equality rights, and limited itself to reversing the Commission\u2019s decision on a question of process. The Court opined that the Commission\u2019s members did not judge the case with sufficient religious neutrality. The decision on the issue which captivated Americans for many months\u2014namely, whether Mr. Phillips was allowed to refuse service to a same-sex couple on religious grounds\u2014was thus left open.<\/p>\n Trinity Western University (Trinity Western), a private evangelical post-secondary institution located in British Columbia, attracted attention in 2014 over its proposal to establish and operate a law school. At the heart of the debate was Trinity Western\u2019s Community Covenant Agreement. This code of conduct embodied Trinity Western\u2019s evangelical Christian values and prohibited certain activities, including \u201csexual intimacy that violates the sacredness of marriage between a man and a woman.\u201d[62]<\/a> Although Trinity Western did not formally ban or prohibit admission to LGBTQ2+ students, all students seeking admission had to accept the terms and comply with the Covenant. Expulsion was one of the possible punishments for students found in contravention of it.[63]<\/a><\/p>\n Because this mandatory code of conduct was deemed discriminatory toward members of the LGBTQ2+ community, the law societies of British Columbia,[64]<\/a> Ontario,[65]<\/a> and Nova Scotia[66]<\/a> decided not to accredit Trinity Western\u2019s proposed law school. As a result of these decisions, the qualifications of future graduates of Trinity Western\u2019s proposed law school would not be recognized by these law societies and they would be unable to apply for a licence to practice law in these provinces.<\/p>\n In response, Trinity Western brought separate legal challenges against the three law societies. They argued, among other things, that the denial of accreditation violated religious rights protected by the Charter<\/em>. Trinity Western was successful in its application for judicial review in front of the supreme courts of British Columbia and Nova Scotia and in the subsequent appeals to their respective courts of appeals.[67]<\/a> However, the decision of the Law Society of Upper Canada to deny accreditation was upheld by both the Ontario Divisional Court and the Ontario Court of Appeal.[68]<\/a> Only the decisions from British Columbia and Ontario were appealed to the Supreme Court of Canada, where a majority of justices found, in a pair of decisions, that the law societies were entitled to deny accreditation of the proposed law school.[69]<\/a> The two dissenting justices held that the law societies could only validly refuse accreditation because of concerns about candidates\u2019 competence and ethics\u2014concerns which were admittedly absent here.[70]<\/a> Alternatively, they were of the view that even if public interest was to form a valid refusal basis generally, the refusal in this case unduly restricted Trinity Western\u2019s freedom of religion and infringed upon the state\u2019s duty of religious neutrality, so that public interest was not served by denying accreditation.[71]<\/a><\/p>\n It is worth pointing out that, unlike Masterpiece Cakeshop<\/em>, the TWU<\/em> case did not squarely present itself as a direct contest between rights. This would have been the case if, for example, a student was denied admission to Trinity Western for refusing to sign the Covenant. It rather involved administrative law issues, and the question of the balance between religious freedom and equality rights was brought forward when examining whether the law societies\u2019 decisions reflected a proportionate balancing of their statutory mandates with the Charter<\/em> protections at play.[72]<\/a> Given these particularities, the TWU<\/em> case was not an ideal case for the Canadian Supreme Court to make a transformative decision on the balance between religious freedom and equality. Nonetheless, as we will discuss below, it still provided an opportunity to move beyond the legal issues raised by the case and to engage with the discourse used by the parties regarding the minority label.<\/p>\n The first strategy through which the minority label operates in these two cases is language framing. The paradigmatic language used to frame the claims of religious believers shifted from arguing that their views represent common morality to presenting themselves as a minority in need of protection. This is evident in the vocabulary used in the legal proceedings and communication strategies of the parties. Instead of presenting themselves as a \u201cmajority\u201d claiming to enforce traditional values shared by a multitude\u2014as would have been typical in earlier debates\u2014believers in these two cases have explicitly<\/em> recast themselves as a \u201cminority\u201d seeking exemptions from laws that offend their mores. While it might appear inconsequential at first glance, this change of language is strategic. Assuredly, presenting themselves as a new minority sets in motion the rhetoric which draws questionable parallels between them as \u201cminoritarian\u201d believers and other vulnerable minorities. Eventually, this leads to the presentation of their anti-LGBTQ2+ rights beliefs as worthy of paramount protection, even to the detriment of other parties\u2019 rights.<\/p>\n The two cases under consideration are rife with references to the religious believers involved\u2014here, conservative Christians\u2014as forming a minority group. Indeed, in their written submissions, the petitioning believers in both cases present themselves as part of a lone dissenting group subject to majoritarian impositions, and words like \u201cminority\u201d[73]<\/a> or \u201csubculture\u201d[74]<\/a> are used to characterize their reality.[75]<\/a> In addition, the petitioning believers refer to the opposing side as the \u201cmajority.\u201d[76]<\/a> This terminology is generally employed without specifying the exact basis for assuming minority status. Does the use of these words refer to a minority defined in terms of size? In terms of power or socio-economic status? Does it refer to a minority within a specific geographical area or in a specific context? We do not know. And this is not surprising: it is precisely the fluidity of the notion that makes the use of a label normally associated with equality rights cases not only possible, but also highly strategic and compelling.[77]<\/a> By using the minority label to defend their beliefs, conservative religious believers in Masterpiece Cakeshop<\/em> and TWU<\/em> rely on its amorphousness to credibly recast themselves as the groups in need of protection.[78]<\/a><\/p>\n Expectedly, the minority label is also invoked indirectly in these cases, through the use of vocabulary often mobilized in equality rights cases: language of perpetuation of serious disadvantage,[79]<\/a> exclusion,[80]<\/a> stigmatization,[81]<\/a> marginalization,[82]<\/a> ostracization,[83]<\/a> isolation,[84]<\/a> harm to dignity,[85]<\/a> and of being systematically overlooked[86]<\/a> is employed to refer to the believers\u2019 situation. A similar language is also used by interveners in both cases to refer to the religious believers.[87]<\/a> Here, such vocabulary is intended to highlight the sense of dire \u201crisk\u201d posed to religious freedom by further progress in the realm of equality rights.<\/p>\n This is apparent in a Washington Post<\/em> op-ed authored by the Masterpiece Cakeshop<\/em> petitioner himself, published during the American Supreme Court deliberations. In this piece, Mr. Phillips writes that a decision in favour of the Colorado Civil Rights Commission\u2019s decision would confirm that he deserves social ostracization for his beliefs and that he does not belong in the polity.[88]<\/a> Hence, contrary to the traditional usage of this language in defence of discriminated groups, these notions are invoked here to justify the exclusion of people who are part of such a group from a given service (the Masterpiece Cakeshop custom wedding cakes service). Such a feature becomes part of a rhetorical strategy aimed at capitalizing on the power of the minority label to convince the Court.<\/p>\n The premise that religious believers opposing same-sex marriage have minority status was generally adopted at face value in the Masterpiece Cakeshop<\/em> case. Many passages of the US Supreme Court\u2019s majority\u2019s reasons implicitly rely on this premise, while some sections of the concurring reasons explicitly employ this vocabulary. The majority opinion penned by Justice Kennedy turns on the determination that the Colorado Civil Rights Commission showed \u201cimpermissible hostility toward the sincere religious beliefs\u201d[89]<\/a> of the defendant, a concept that conjures the systemic, state-led discriminatory treatment once endured by minority faiths. Justice Kennedy also writes that comments made during the hearing about the separation of commerce and religious beliefs implied that believers \u201care less than fully welcome in Colorado\u2019s business community,\u201d[90]<\/a> an argument that embraces the idea that religious opponents of LGBTQ2+ rights are a minority in need of protection.<\/p>\n Justice Gorsuch is even more explicit in his endorsement of the \u201cminority label\u201d idea in his concurring reasons. He writes that labelling Mr. Phillips\u2019s opposition to gay marriage as offensive is an impermissibly \u201cjudgmental\u201d stance, adding that \u201cthe Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.\u201d[91]<\/a> Finally, Justice Thomas, writing about the freedom of speech issue in his concurring reasons, writes that \u201cif Phillips\u2019 continued adherence to that understanding [opposing same-sex marriage] makes him a minority after Obergefell<\/em>, that is all the more reason to insist that his speech be protected.\u201d[92]<\/a><\/p>\n In the TWU<\/em> case, the minority qualification is never questioned by lower courts.[93]<\/a> However, the rhetoric was not adopted at all by the majority of the Supreme Court of Canada. Indeed, Trinity Western is confined to being designated simply as a \u201cprivate religious institution created to support the collective religious practices of its members.\u201d[94]<\/a> Words like \u201cminority\u201d or \u201csubculture\u201d are notably absent from the majority opinion.<\/p>\n However, the strategy was received favourably by the two dissenting justices. Indeed, it is interesting to point out that Justices C\u00f4t\u00e9 and Brown refer indirectly to Trinity Western as a minority by quoting the British Columbia Court of Appeal.[95]<\/a> Furthermore, they write that the Trinity Western community\u2019s religious experience is so unique that it can be difficult to understand for adjudicators who do not share it,[96]<\/a> and that it is particularly vulnerable to the \u201cculturally forceful hand of the law.\u201d[97]<\/a> They also write that Trinity Western ought to be protected from the imposition of \u201cvalues which a state actor deems to be \u2018shared,\u2019\u201d[98]<\/a> and argue that accommodating Trinity Western\u2019s religious difference could be commanded by both equality[99]<\/a> and dignity.[100]<\/a> The repeated use of concepts such as the \u201cimposition\u201d of \u201cculturally forceful\u201d views to describe requests that Trinity Western respect LGBTQ2+ equality rights makes clear that the two Canadian dissenters have accepted the premise on which the minority label rests.<\/a><\/p>\n We have seen that the process by which conservative religious believers explicitly describe themselves as a minority can lend credibility to their claims for exemptions, as the fluidity of the notion of minority allows them to recast themselves as a group in need of protection. This strategy further compels favourable implicit moral assumptions. As such, a feature of this discourse which we will now examine can be called \u201cmoral symmetry.\u201d[101]<\/a><\/p>\n In the context of discrimination, moral symmetry contends that two harms suffered are, in every relevant respect, equivalent. A moral symmetry framework can be used to support the idea that any discrimination on the basis of a ground (e.g., race), is equally harmful, notwithstanding whom it targets (e.g., Blacks or whites).[102]<\/a> As we will see, the contention of symmetry is here extended beyond groups of the same ground to equate \u201cprotected\u201d and \u201ccognate\u201d groups defined by different grounds (sexual orientation and religion).[103]<\/a> This cross-grounds symmetry further complicates the picture.<\/p>\n In the two cases examined here, religious believers build on this idea of moral symmetry and construct a narrative in which the harm experienced by conservative Christians (because of the anti-discrimination duties imposed on them) and the harm faced by the LGBTQ2+ community (because of discriminatory practices such as the refusal of services) are commensurable. As a result of this equation, the cases are presented with not one<\/em> but two<\/em> \u201cequivalent\u201d minorities in need of protection who suffer \u201cequal\u201d harm. In our view, this appeal to moral symmetry is a necessary step for conservative religious believers to invoke further arguments that are only cognizable when understood to be flowing from their pre-identification as a vulnerable religious minority that is on the same footing<\/em> as other minorities. This will become apparent in our discussion of the remaining tool through which the minority label operates: the claims to respectability.<\/p>\n Of course, the conservative religious believers in question may very well genuinely perceive themselves as minorities. But such symmetrical depictions obscure the facts that each group or subgroup is differently positioned socially, has a unique history, and has varying levels of access to valuable goods and status, all of which leaves them differently vulnerable to discrimination. Inevitably, this symmetrical thinking abstracts discrimination based on sexual orientation and gender identity from the history of persecution of the LGBTQ2+ community\u2014as well as from the persecution the community still faces. Furthermore, it obscures the legacy of political, social, and economic power held by Christians and Christian organisations as the consequence of the historical domination of Christian values and their hegemony in American and Canadian societies.[104]<\/a><\/p>\n As we will see, once this equivalence is established, the minority label can then be taken a step further. From a minority that is on par<\/em> with others in terms of its vulnerability to discrimination, conservative religious claimants can become the<\/em> minority most in need of protection. While such statements might appear to contradict the symmetrical logic they invoke, they can be reconciled as two separate but complementary elements essential for obtaining a favourable ruling. This is so because symmetry alone cannot point the court\u2019s ruling in any one direction. Thus, the believers must add that, in the present social context, LGBTQ2+ people are indistinguishable from the majority of straight people who are in favour of same-sex marriage. As such, LGBTQ2+ people are not a vulnerable minority in this regard, while conservative religious opponents of same-sex marriage are. This second step is most visible, we will see, in Trinity Western\u2019s systematic attempts to minimize the harm its Covenant caused to LGBTQ2+ people, as well as in the constant reminders in both the American majority reasons and the Canadian dissenting opinion that a majority of citizens now support same-sex marriage.<\/p>\n In Masterpiece Cakeshop<\/em>, the moral symmetry framework is put to work through the use of analogies. As we will see, Mr. Phillips\u2019s counsel brings moral symmetry to the table by drawing parallels between his case and those of minorities who experience patterns of disadvantage, inequality, and disenfranchisement from the political process.[105]<\/a> The distinctive limitation of analogies, namely that they obscure crucial differences between two objects by overly magnifying their similarities,[106]<\/a> works here to bolster the persuasiveness of the minority label.<\/p>\n Indeed, Mr. Phillips\u2019s counsel\u2019s arguments at the hearing\u2014as well as the ones presented by the US Solicitor General who defended the same position\u2014framed the issue as symmetrical. They did so by contending that the situation was hard to resolve precisely because constraining Mr. Phillips would mean eventually constraining other minorities\u2014including LGBTQ2+ people themselves\u2014to be complicit in the creation of oppressive symbols. As Mr. Phillips\u2019s counsel put it in rebuttal:<\/p>\n The record is clear on that. Demeaning Mr. Phillips\u2019 honorable and decent religious beliefs about marriage, when he has served everyone and has a history of declining all kinds of cakes unaffiliated with sexual orientation because of the message, he should receive protection here as well. This law protects the lesbian graphic designer who doesn\u2019t want to design for the Westboro Baptist Church, as much as it protects Mr. Phillips<\/em>.[107]<\/a><\/p>\n Here, Mr. Phillips\u2019s situation was equated with the one of a lesbian graphic designer refusing to work for a church whose website domain name is \u201cgodhatesfags.com\u201d and which advocates for capital punishment for homosexuality.[108]<\/a> This analogy successfully confers a minority status upon Mr. Phillips, as the hate and persecution endured by the comparative actor (the lesbian graphic designer) successfully rubs off on the actor she is being compared with (Mr. Phillips).<\/p>\n The Solicitor General employed a similar analytical framework in his oral argument. He drew parallels not only with the case of the gay graphic designer refusing to work for the Westboro Baptist Church, but also with the one of a Black artisan forced to craft a cross for a Ku Klux Klan reunion.[109]<\/a> In both submissions, the cases are stripped of their highly different contexts to allow an intense focus on one bare similarity: opposition to participation in an \u201cexpressive event\u201d one \u201cdisagrees\u201d with. Hence, both counsels equated forcing Mr. Phillips to be \u201ccomplicit\u201d against his religious beliefs in the same-sex wedding he would prepare a cake for, with forcing a gay or a Black person to be complicit in events and speech directly promoting their very own oppression, suffering, and death. That the two can be credibly equated in a court of law is cause for deep concern.<\/p>\n How did Mr. Phillips manage to associate himself more closely with LGBTQ2+ people persecuted by the Westboro Baptist Church than with the persecutors within that church? That is quite fascinating considering that, although the extremism of their positions and tactics surely differs, they are both religious opponents of same-sex marriage. It is possible that Mr. Phillips\u2019s calm demeanour and polite discourse (in his op-ed, he refers to the couple to whom he denied service as \u201cthe gentlemen\u201d and says that they are welcome in his shop)[110]<\/a> contributed to distance him from groups who resort to hate speech.<\/p>\n But Mr. Phillips\u2019s restrained demeanour and general \u201cperfect defender\u201d quality is in itself insufficient. It is only by successfully laying the foundation that Mr. Phillips\u2019s religious identity put him at risk of discrimination and persecution that his advocates were able to associate him with more \u201ctraditional\u201d victims of discrimination. As we have alluded to previously, the increasing prevalence of reverse discrimination claims in the American context makes this stupefying symmetrical portrayal nonetheless appear legally intuitive. Moreover, the courts\u2019 desire to remain \u201cneutral\u201d in cases involving freedoms of religion and speech makes them receptive to such symmetrical arguments, which can be branded as emerging from a \u201cneutral principle\u201d[111]<\/a> framework.[112]<\/a><\/p>\n The notion of moral symmetry is also present in the TWU<\/em> case, albeit in a different way. The appeal to symmetry in Masterpiece Cakeshop<\/em> focuses on \u201ccomparable\u201d complicity in a practice one \u201copposes.\u201d In TWU<\/em>, however, symmetry is deployed through the idea of equivalent harm suffered by the protagonists.<\/p>\n Indeed, the harm suffered by the LGBTQ2+ community because of the Covenant is not only considered equivalent to that of the religious believers, but is also actually constantly minimized. For instance, in the Nova Scotia Supreme Court decision, this harm is reduced to an \u201celement of stress\u201d inherent to living in a multicultural society.[113]<\/a> The Court also uses the term \u201chomophobic\u201d between quotation marks to describe the Covenant,[114]<\/a> seemingly indicating that the discriminatory nature of the code of conduct, which prohibits same-sex sexual intimacy, is a matter of interpretation.<\/p>\n As the Ontario Divisional Court points out, attempting to minimize the concerns arising from the harmful effects of the Covenant, Trinity Western also strategically portrays itself as a safe and welcoming institution that accommodates everyone, including LGBTQ2+ students.[115]<\/a> They insist that homophobic or discriminatory conduct is not tolerated and is a violation of their Covenant.[116]<\/a> Again, this type of rhetoric seeks to diminish the actual harm caused by the discriminatory code of conduct.<\/p>\n Trinity Western thus goes further than implying a symmetrical harm for religious believers and LGBTQ2+ individuals. Indeed, Trinity Western argues that, in this case, the real <\/em>harm is caused to the dignity of evangelical Christians.[117]<\/a> Here, positions are reversed, and Trinity Western appears as the one harmed group, discriminated against by the law societies that rejected them. Just like Mr. Phillips\u2019s dignity was harmed by the Colorado Civil Rights Commission in Masterpiece Cakeshop<\/em> (as it disrespected his beliefs), the Trinity Western students\u2019 dignity \u201cis harmed when they are \u2018marginalized, ignored, or devalued\u2019 by the LSBC.\u201d[118]<\/a> In both cases, the focus is placed on the relationship between a public body and the conservative believers, keeping the harm endured by the LGBTQ2+ community, whose rights are defended by said public bodies, just out of the frame. This narrative is also echoed by the intervener Christian Legal Fellowship:<\/p>\n The Law Societies have, throughout these proceedings, expressed concern about the \u201charmful message\u201d they would send if they were to approve TWU. But in rejecting TWU, they have done exactly that. They have sent the harmful message that the evangelical Christian community\u2019s lawful view of marriage is \u201cabhorrent,\u201d \u201carchaic\u201d and \u201chypocritical.\u201d[119]<\/a><\/p>\n Despite appeals to moral symmetry and an attempt to reverse the roles, the majority of the Supreme Court of Canada was not convinced by Trinity Western\u2019s strategy. The majority decision focused on harms caused to LGBTQ2+ individuals, writing that the refusal to accredit Trinity Western\u2019s law faculty furthers the objective of \u201cprotecting the public interest in the administration of justice … by preventing the risk of significant harm to LGBTQ people who attend TWU\u2019s proposed law school.\u201d[120]<\/a> Indeed, according to the majority, \u201cLGBTQ students enrolled at TWU\u2019s law school may suffer harm to their dignity and self-worth, confidence and self-esteem, and may experience stigmatization and isolation.\u201d[121]<\/a><\/p>\n The dissenting justices, however, very much echoed the view that Trinity Western was the injured party in the case. Indeed, they contended that while one of the law societies \u201cpurported to act in the cause of ensuring equal access to the profession, it has effectively denied that access to a segment of Canadian society, solely on religious grounds.\u201d[122]<\/a> They argued that there is no \u201clegally cognizable injury\u201d[123]<\/a> here and described the contested Covenant as representing \u201cso-called \u2018discriminatory\u2019 … practices.\u201d[124]<\/a><\/p>\n Furthermore, the dissenting justices go as far as to lump in anti-LGBTQ2+ rights beliefs with inoffensive if peculiar religious beliefs that might be hard to understand for justices, but to which they should turn \u201can unconcerned shoulder, satisfied that the practice or commitment at stake simply does not offend the culture of Canadian constitutionalism.\u201d[125]<\/a> They further argued that the exclusion of LGBTQ2+ candidates from the proposed law school is justified, as \u201cthe unequal access resulting from the Covenant is a function of accommodating religious freedom.\u201d[126]<\/a><\/p>\n Finally, it is especially noteworthy that the dissenters take great care to highlight that conservative religious believers have an experience which members of the judiciary might be unable to easily relate to. This unique demonstration of empathy is reserved for Trinity Western, but is not extended either to LGBTQ2+ students attending the school or to those who are part of the larger Canadian legal community.[127]<\/a><\/p>\n In addition to minimizing the harm suffered by the LGBTQ2+ community and emphasizing the harm caused to Trinity Western\u2019s community, the dissenters also directly invoke symmetry. They do so by citing a South African LGBTQ2+ landmark victory in support of their plea for tolerance toward Trinity Western. The case referenced, National Coalition for Gay and Lesbian Equality v. Minister of Justice<\/em>, struck down the criminalization of same-sex sexual intimacy. The dissenters in TWU<\/em> point to the idea brought forward in this case, namely that equality should not mean conformity but rather respect for differences.[128]<\/a> Of course, the difference for which they seek respect here is not queerness, but religious opposition to it. This symmetrical appeal very much resembles the ones brought forward by counsels in Masterpiece Cakeshop<\/em>, where the same rhetorical technique was used to equate Mr. Phillips\u2019s situation to that of the lesbian graphic designer refusing to work for the Westboro Baptist Church.<\/em><\/p>\n The American and Canadian cases thus diverge significantly. The Masterpiece Cakeshop<\/em> decision contains clear signals of agreement with the assertion that there is a symmetry between the situation of religious opponents to queer love and that of the LGBTQ2+ community. This is most notable in its inability to find a \u201cneutral principle\u201d distinguishing between the victory of bakers refusing to prepare cakes bearing anti-LGBTQ2+ messages and the defeat of Mr. Phillips in front of the Commission.[129]<\/a> In contrast, the TWU<\/em> majority decision appears to close the door on this possibility. In sum, while the parties have deployed similar rhetorical devices to support their religious claims, the responses of the majorities of each court have gone in opposite directions.<\/p>\n We have seen that employing terms associated with vulnerable minorities as well as invoking moral symmetry allows conservative religious believers to craft a narrative in which they are a new vulnerable minority either on par with others, or in need of an even greater degree of protection.<\/p>\n Once these two elements have been established, the minority label discourse moves on to its final goal: reclaiming the respectability<\/em> of views opposing LGBTQ2+ rights. As recent defeats preclude openly advocating for the rightness of traditional morality in the legal realm, respectability, as a gateway to tolerance requests, becomes of paramount concern. The hope is to get traditional morality proponents\u2019 views as close as possible to moral rehabilitation in the eyes of the public by finding a place for them within the bounds of modern legal values such as tolerance and the protection of minorities.<\/p>\n Presenting opposition to LGBTQ2+ rights as a minoritarian belief held by a vulnerable religious minority eases the path to respectability. This is manifest in the two cases under consideration, where religious believers plead for tolerance for diverse beliefs held by minorities\u2014including, of course, theirs\u2014in the name of pluralism. In other words, in Masterpiece Cakeshop<\/em> and TWU<\/em>, religious believers are not arguing for the moral validity of their beliefs. Rather, they are asking society to tolerate their viewpoints, which, albeit having perhaps become unpopular, are still respectable.<\/p>\n This rhetoric allows conservative religious believers to build a strong case for the exemptions they seek, as tolerance is an important modern social good. Indeed, as previously explained, not only is tolerance among the very reasons for protecting religious freedom in the first place, it is also a core principle around which equality rights advocates build strategies for eliminating discrimination. As we will see, tolerance is at play in both the Masterpiece Cakeshop<\/em> and TWU <\/em>cases, where it is mobilized by both the parties and the courts.<\/p>\n In the Masterpiece Cakeshop<\/em> case, the Alliance Defending Freedom asserts the respectability[130]<\/a> of Mr. Phillips\u2019s beliefs and emphasizes tolerance and pluralism. Indeed, the Alliance features an interview with Mr. Phillips\u2019s counsel on its website, where the narrator explains why she shares his cause: \u201cJack represents what a pluralistic society looks like.\u201d[131]<\/a> In this interview, she asks\u2014and that is a recurring theme in the Alliance\u2019s promotional material\u2014for tolerance, not from<\/em> Jack (like LGBTQ2+ advocates do), but for<\/em> Jack and his belief against same-sex marriage.<\/p>\n Mr. Phillips\u2019s counsel also mobilized the idea of tolerance during her rebuttal at the US Supreme Court: \u201c[P]olitical, religious, and moral opinions shift. We know that. And this Court\u2019s dedication to Compelled Speech Doctrine and to free exercise should not shift.\u201d[132]<\/a> The message being sent to the Court and the broader public here is that the popularity of Mr. Phillips\u2019s beliefs is declining, and that, as a person holding unpopular but respectable religious beliefs, he now especially needs the tolerance and protection of the Court.<\/p>\n This plea for the tolerance of Mr. Phillips\u2019s respectable beliefs was well received by the American Supreme Court. Indeed, the attempt to foster tolerance for unpopular views and to ease social tension was very visibly displayed. In fact, the majority of the Court showed so much concern for the protection of Mr. Phillips\u2019s religious views that it formed the primary basis for judgment. Indeed, the majority refused to settle the core issue of the conflict between religious freedom and equality rights directly. It rather chose to focus on the less controversial idea of judicial neutrality, interpreting it to mean that adjudicators must express respect for both proponents and opponents of same-sex marriage. They overturned the initial decision against Mr. Phillips, writing that the Commission failed to treat his beliefs with sufficient respect, thus displaying unacceptable bias.[133]<\/a> This is so because of comments uttered by a panel member which \u201cdisparage his religion.\u201d[134]<\/a> Furthermore, by labelling anti-same-sex marriage messages as \u201coffensive\u201d in another case, \u201cthe Colorado court\u2019s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips\u2019 religious beliefs.\u201d[135]<\/a><\/p>\n In his concurring reasons, Justice Gorsuch also stresses the importance of tolerance, building on a free speech idea deeply ingrained in the American psyche:<\/p>\n Just as it is the \u201cproudest boast of our free speech jurisprudence\u201d that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. … Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country\u2019s commitment to serving as a refuge for religious freedom.[136]<\/a><\/p>\n The majority also makes clear that Mr. Phillips, the \u201cexpert baker\u201d and \u201cdevout Christian,\u201d[137]<\/a> is precisely one of the \u201creasonable and sincere people\u201d opposing gay marriage \u201cin good faith\u201d whom Justice Kennedy acknowledged in his Obergefell<\/em> opinion.[138]<\/a> Justice Kennedy\u2019s opinion in Masterpiece<\/em> thus reads like a moral rehabilitation of opponents of same-sex marriage. Even though he stresses the importance of the dignity interest of LGBTQ2+ citizens,[139]<\/a> it is clear that the opinion seeks first and foremost to convince the judiciary and the broader public of the respectability of Mr. Phillips\u2019s views. When Mr. Phillips was asked to craft a cake for a same-sex union celebration, he faced, according to Justice Kennedy, a \u201cdilemma\u201d that was \u201cparticularly understandable\u201d in the 2012 context.[140]<\/a><\/p>\n Since in the Court\u2019s view Mr. Phillips\u2019s beliefs are respectable, they must be taken seriously if the Court is to remain neutral on the content of citizens\u2019 beliefs and to treat everyone \u201cthe same.\u201d As Justice Kennedy expressed during the hearing: \u201cTolerance is essential in a free society. And tolerance is most meaningful when it\u2019s mutual. It seems to me that the state in its position here, has been neither tolerant nor respectful of Mr. Phillips\u2019 religious beliefs.\u201d[141]<\/a> This indignation on the part of the US Supreme Court, denouncing hostility toward religion, is reminiscent of Trinity Western\u2019s argument that the law societies have exercised a form of moral condemnation over them, by targeting them and qualifying evangelical views as \u201charmful,\u201d[142]<\/a> \u201chighly problematic,\u201d[143]<\/a> \u201coffensive,\u201d[144]<\/a> \u201cdisrespectful,\u201d[145]<\/a> and \u201cderogatory,\u201d[146]<\/a> among others.<\/p>\n The opportunity for rehabilitation that the Masterpiece Cakeshop<\/em> decision represents for conservative religious opponents to LGBTQ2+ rights was not lost on the Alliance Defending Freedom. Indeed, they proudly displayed three key \u201ctakeaways\u201d from the judgment on their website:<\/p>\n Jack\u2019s case brought liberals and conservatives together because we should all agree:<\/p>\n (1) Government hostility toward religious beliefs has no place in our pluralistic society;<\/p>\n (2) We all should have the right to live and work consistent with our deeply held beliefs;<\/p>\n (3) Countless people of good will\u2014from faith traditions as diverse as Islam and Christianity\u2014believe that marriage is the union of a man and a woman.[147]<\/a><\/p>\n We can see how the new trope is at play in their depiction of their victory. Interestingly, by portraying themselves as a minority, they are able to make universalist appeals. Not because the content of their belief is shared by a majority of Americans like it once was, but rather because many other minorities are at risk of persecution by the state, to whom they equate themselves by association. In other words, they are defending a cause that is greater than themselves. That is why the Alliance Defending Freedom noted the fact that \u201cliberal\u201d justices sided with them;[148]<\/a> it gives credibility to their defence of a \u201cneutral\u201d idea. Finally, we see that reclaiming their respectability is an important part of the process, one they highlight with their third takeaway: \u201cCountless people of good will\u2014from faith traditions as diverse as Islam and Christianity\u2014believe that marriage is the union of a man and a woman.\u201d<\/p>\n In sum, the majority of the justices of the US Supreme Court accepted the respectability arguments presented by Mr. Phillips and his supporters, situating the dispute within the minority label framework. The decision sidestepped the core issue by declaring that the Colorado Civil Rights Commission lacked basic neutrality in its consideration of Mr. Phillips\u2019s beliefs. Nonetheless, it sent a strong message about the respectability of Mr. Phillips\u2019s views, and about the fact that LGBTQ2+ rights are still up for debate.<\/p>\n In TWU<\/em>, pluralism and tolerance are also central pieces of the rhetorical strategy deployed by the university, in its quest to reclaim the respectability of its position. Indeed, Trinity Western defined the debate at the outset as one where the majority, in an \u201cintolerant and illiberal\u201d manner, seeks to impose its views on a minority.[149]<\/a> Trinity Western invoked the risk of the \u201ctyranny of the majority\u201d prevailing \u201cto the detriment of all of Canada\u2019s diverse communities.\u201d[150]<\/a> They also argued that the distinctive beliefs of the evangelical community can put them \u201cin tension with broader societal norms and popular opinion.\u201d[151]<\/a> In this case, their beliefs clash with the current popular opinion which is favourable to same-sex marriage, thus leading them to direct their arguments on the necessary tolerance which society must now demonstrate toward them.<\/p>\n Trial and appeal courts who heard the case echoed this view. \u201cWho tolerates whom?\u201d, asked the Nova Scotia Supreme Court, arguing that \u201c[m]ainstream values no longer stigmatize LGBT people. Those who do are now the dissident and dissonant voices.\u201d[152]<\/a> The British Columbia Court of Appeal similarly stated:<\/p>\n In the context of this case, the members of the TWU community constitute a minority. A clear majority of Canadians support the marriage rights of the LGBTQ community, and those rights enjoy constitutional protection. The majority must not, however, be allowed to subvert the rights of the minority TWU community to pursue its own values. Members of that community are entitled to establish a space in which to exercise their religious freedom.[153]<\/a><\/p>\n Certain interveners and media followed in the same narrative vein. \u201cA \u2018free and democratic society\u2019 is … robustly pluralistic,\u201d the Evangelical Fellowship of Canada and Christian Higher Education wrote.[154]<\/a> The theme of diversity was also echoed in the media after the final decision was released, with some commentators expressing the view that Trinity Western\u2019s defeat was a \u201cblow to diversity.\u201d[155]<\/a> Upon learning of the outcome, the following message appeared on a Trinity Western website: \u201cUntil now, Canada has always encouraged the rich mosaic created by the diversity of views, race, gender and belief systems in this country. Regrettably, the Supreme Court\u2019s decision limits the contribution of faith communities to Canadian society.\u201d[156]<\/a><\/p>\n Like the strategy of invoking moral symmetry, these pleas for tolerance emphasizing the respectability of the religious believers\u2019 viewpoints were not endorsed by the majority judgment. No reference is made to a necessary need to show tolerance for the minoritarian beliefs of the religious opponents to LGBTQ2+ rights. On the contrary, the majority argues that in this case, \u201cmore is at stake … than simply \u2018disagreement and discomfort\u2019\u201d with the potentially offensive views of others in a free, democratic, and plural society.[157]<\/a> Here, according to the majority, the minor interference with Trinity Western\u2019s religious freedom is justified because of the significant concrete harm that Trinity Western\u2019s beliefs and practices cause to LGBTQ2+ people.[158]<\/a><\/p>\n Had the pleas for tolerance been endorsed by the Canadian Supreme Court, it would have allowed Trinity Western to successfully reverse the roles. From a historically oppressed group, the LGBTQ2+ community would have become part of the majority that contributes to impairing the rights of the new religious minority. Thus, the harm they might suffer by their exclusion because of the Covenant would seem less substantial, and the potential for success of religious claims for exemptions from anti-discrimination laws would have greatly improved.<\/p>\n Despite the outcome, it should be noted that the theme of pluralism was relied upon by the two dissenting justices, for whom this case required the Court to decide \u201cwho controls the door to \u2018the public square\u2019\u201d[159]<\/a> in a secular state where pluralism is intrinsically valuable and should be fostered:[160]<\/a><\/p>\n Properly understood, secularism connotes pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view.[161]<\/a><\/p>\n This seemingly \u201ccontent neutral\u201d approach to freedom of religion and belonging, where one does not have to stop excluding others to demand inclusion, implicitly acknowledges that Trinity Western\u2019s religious opposition to queer love is respectable enough to warrant protection.<\/p>\n Furthermore, the argumentative strategies of the dissenters analyzed above\u2014namely, minimizing the discriminatory nature of the Covenant and the forceful appeals to tolerance for Trinity Western through a symmetrical framework\u2014work together to present Trinity Western\u2019s views as respectable. Indeed, they argue that Trinity Western is simply showing a lawful preference for members of its own faith, and that \u201c[t]he purpose of TWU\u2019s admissions policy is not to exclude LGBTQ persons, or anybody else, but to establish a code of conduct which ensures the vitality of its religious community.\u201d[162]<\/a><\/p>\n Finally, the dissenters echo the American plurality\u2019s reasoning by asserting that the law societies\u2019 requests that Trinity Western modify its Covenant constitute a breach of state religious neutrality. Indeed, they write that the law societies failed to uphold their duty to accommodate diverse religious beliefs \u201cwithout scrutinizing their content.\u201d[163]<\/a> In their view, making accreditation conditional on the removal of the discriminatory section of the Covenant is a violation of state neutrality, as it \u201crepresented an expression by the state of religious preference which promote[d] the participation of non-believers, or believers of a certain kind, to the exclusion of the community of believers found at TWU.\u201d[164]<\/a> This assertion is especially in line with the minority label, for it approves the idea that merely asking a religious group not to discriminate constitutes a failure of religious neutrality. As the Canadian case of TWU<\/em> did not involve forceful comments by a decision-maker of the kind uttered by the member of the Colorado Civil Rights Commission in Masterpiece Cakeshop<\/em>, one could say that the dissenters take the duty of religious neutrality even further than their American counterparts. The law societies did not have to express any animus against the belief at hand; the mere request to remove the Covenant\u2019s contested clause was enough to violate religious neutrality.<\/p>\n However, Trinity Western\u2019s plea for the respectability of their discriminatory beliefs was not accepted by the majority of the Canadian Supreme Court justices. As we saw, their decision focused on the important harm that Trinity Western\u2019s Covenant caused to LGBTQ2+ people, rather than on the need to tolerate Trinity Western\u2019s newly minoritarian beliefs in a pluralistic society. Here again, the two cases diverge, leading us to believe that in the future, similar claims by religious groups seeking exemptions from anti-discrimination law duties may be facilitated in the American context, while the minority label may not be a winning strategy in the Canadian context.<\/p>\n In conclusion, it appears that the recourse to the minority label strategy was far from fruitful for all the parties involved. As we have seen, this rhetoric mixes explicit linguistic claims and implicit equation between the subjects and detractors of anti-discrimination laws through a moral symmetry framework. It also seeks to reclaim the respectability of opposition to LGBTQ2+ rights. Still, while a majority of Canadian Supreme Court justices remained unmoved, this rhetoric was echoed on the American side.<\/p>\n In recasting religious believers as a new vulnerable minority, proponents hoped to secure a more modern legal argument to support their opposition to same-sex marriage, and lay the ground work for an eventual precedent reversal by ensuring the issue remains a live one. In the meantime, should exemption requests be successful, they would provide \u201cpiece-meal gains\u201d for the new \u201cminority\u201d pending a complete victory. As described earlier, this strategy evolved out of the defeat of their former rhetorical trope of choice that offered the latitude to defend and advocate for the validity and rightness of their beliefs. This is something they did openly until recent advances in LGBTQ2+ rights issues, including the Obergefell<\/em> decision in the United States.[165]<\/a> After being defeated on this terrain, they now seek \u201cpreservation through transformation\u201d[166]<\/a> with the new trope of \u201cminoritization,\u201d where, rather than trying to prove the validity <\/em>of their beliefs, they limit themselves to defending their respectability<\/em>. In a sense, this is a notable rhetorical setback for them, as a judicial victory based on the old trope would have gotten them much closer to their ultimate objective of having traditional morality norms enforced by the state. In contrast, the new trope can only get them so far: respectability may yield exemptions, but cannot, on its own, provide complete victory.<\/p>\n However, the many ways in which decisions such as the one by the US Supreme Court in Masterpiece Cakeshop<\/em> are nonetheless a victory for opponents to LGBTQ2+ rights should not be underestimated. First, even if victories based on the new trope bring forth more incremental gains in the \u201cculture war,\u201d they nonetheless have the power to eventually lead to a web of exceptions that could come to indirectly regulate the issue.[167]<\/a> Indeed, according to Douglas NeJaime and Reva Siegel, such a phenomenon is already occurring in the American context regarding reproductive rights: exemption claims are invoked with such regularity and have such an expanded scope that they end up significantly influencing the regulation of the contested conduct itself.[168]<\/a><\/p>\n Citing health care exemptions laws as a cautionary tale, their analysis shows how individual demands\u2014for exemption from any involvement in procedures such as abortion, sterilization, and contraception\u2014originally presented in the name of settling social conflict, soon aggregated into a broader strategy on the part of conservatives to make incremental gains in the \u201cculture war.\u201d[169]<\/a> Indeed, NeJaime and Siegel worry about the potential of complicity-based claims to stretch well beyond the confines of individual conscience, as they progressively expand upon two axes.[170]<\/a> Firstly, on who can request an exemption: from doctors to receptionists, hospitals, insurance companies, and even employers providing health insurance.[171]<\/a> Secondly, on how much \u201ccomplicity\u201d is deemed too much: from practicing the procedure, to assistance, referrals, or even simply providing information about the existence of the service elsewhere. Alive to this type of risk, Justice Sotomayor asked during the Masterpiece Cakeshop<\/em> hearing whether siding with Mr. Phillips could lead to obstacles in access to same-sex marriage related services in remote regions, such as near military bases.
\nanti-discrimination protections innovate by depicting themselves as a new minority, claiming a vulnerability usually reserved for traditional subjects of discrimination. We lay out the argumentative strategies supporting this discursive shift, converging toward one main goal: to anchor their religious claims on the ethical terrain occupied by discriminated individuals. We examine the common features in the rise of this discourse in the American and Canadian settings and how the two supreme courts react differently to the minority label contention.<\/p>\n<\/a>I.\u00a0 The Conditions of Possibility of the Discourse of the \u201cMinority Label\u201d<\/h1>\n
<\/a>A.\u00a0 A Changing Socio-Historical Context<\/h2>\n
1.\u00a0\u00a0\u00a0 The Advances in LGBTQ2+ Rights<\/h3>\n
2.\u00a0\u00a0\u00a0 The Shift in Demographics<\/h3>\n
3.\u00a0\u00a0\u00a0 The Normalization of Reverse Discrimination Claims<\/h3>\n
B.\u00a0 A Fertile Legal Landscape<\/h2>\n
1.\u00a0\u00a0\u00a0 The Courts\u2019 Conceptions of Religion and Freedom of Religion<\/h3>\n
2.\u00a0\u00a0\u00a0 The Doctrine of Complicity<\/h3>\n
3.\u00a0\u00a0\u00a0 The Importance of Pluralism and Tolerance<\/h3>\n
II. The Operation of the \u201cMinority Label\u201d<\/h1>\n
<\/a><\/a>A.\u00a0 The Cases Under Analysis: Masterpiece Cakeshop & TWU<\/h2>\n
1.\u00a0\u00a0\u00a0 Masterpiece Cakeshop<\/em><\/h3>\n
2.\u00a0\u00a0\u00a0 TWU<\/em><\/h3>\n
B.\u00a0 <\/a>Framing Through Language<\/h2>\n
C.\u00a0 Invoking Moral Symmetry<\/h2>\n
1.\u00a0\u00a0\u00a0 How Moral Symmetry Is Invoked in Masterpiece Cakeshop <\/em><\/h3>\n
2.\u00a0\u00a0\u00a0 How Moral Symmetry Is Invoked in TWU <\/em><\/h3>\n
<\/a><\/a>D. Reclaiming Respectability<\/h2>\n
1.\u00a0\u00a0\u00a0 How Respectability Is Reclaimed in Masterpiece Cakeshop<\/em><\/h3>\n
2.\u00a0\u00a0\u00a0 How Respectability Is Reclaimed in TWU<\/em><\/h3>\n
<\/a><\/a><\/a>Conclusion<\/h1>\n