Trinity Western loses fight for Christian law school as court rules limits on religious freedom 'reasonable'
Supreme Court of Canada says 7-2 decision will ensure open access for LGBT students
A B.C.-based evangelical Christian university has lost its legal battle over accreditation for a planned new law school, with a Supreme Court of Canada ruling today saying it's "proportionate and reasonable" to limit religious rights in order to ensure open access for LGBT students.
In a pair of 7-2 rulings, the majority of justices found the law societies of British Columbia and Ontario have the power to refuse accreditation based on Trinity Western University's so-called community covenant.
The mandatory covenant binds students to a strict code of conduct that includes abstinence from sex outside of heterosexual marriage.
The majority judgment said the covenant would deter LGBT students from attending the proposed law school, and those who did attend would be at risk of significant harm.
It found the public interest of the law profession gives it the right to promote equality by ensuring equal access, support diversity within the bar and prevent harm to LGBT students.
Two justices: law societies' powers should be limited
In the court's view, the law societies were acting within their mandate in considering TWU's admission policies in the accreditation process, and striving to uphold a positive public perception of the legal profession.
"In our respectful view, the [law societies] decision not to accredit Trinity Western University's proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the [law societies] sought to pursue," it reads.
Two dissenting justices, Suzanne Cote and Russell Brown, sided with TWU, arguing that the law societies' powers should be more limited when it comes to approving law programs.
TWU's proposed law school at its Langley, B.C., campus was granted preliminary approval by the B.C. provincial government in 2013, but that approval was later withdrawn due to legal challenges.
In B.C. and Nova Scotia, the courts had sided with TWU, ruling the university has the right to act on its beliefs as long as there is no evidence of harm.
Ontario's Court of Appeal ruled the other way, calling the covenant "deeply discriminatory to the LGBT community."
Mandatory covenant
The university's mandatory comprehensive covenant agreement requires that all students and faculty pursue a holy life "characterized by humility, self-sacrifice, mercy and justice, and mutual submission for the good of others." It requires members to abstain from using vulgar language, lying or cheating, stealing, using degrading materials such as pornography, and "sexual intimacy that violates the sacredness of marriage between a man and a woman."
While that rule effectively bars anyone who is unmarried from having sexual relations, it's the reference to "man and a woman" that is considered discriminatory against LGBT people. Same-sex marriage became legal in Canada in 2005.
TWU has 40 undergraduate programs and 17 graduate programs, including a teachers' education program.
'Loss for diversity'
Janet Epp Buckingham, a TWU professor who helped develop the law school proposal, said she was saddened by the ruling.
"We feel that this is a loss for diversity in Canada," she said. "Canada has traditionally upheld values of diversity for a broad array of religious views. So we're very disappointed in the way the Supreme Court of Canada has ruled today."
Buckingham said the university will take time to process the long and complex judgment before deciding on next steps. One option the university's board of governors could consider is lifting the mandatory covenant, she said.
Other professional programs at the university, such as the teaching and nursing programs, have been operating successfully for years, turning out graduates who are well-respected in the community, Buckingham said. She said she does not anticipate any challenges to those programs, whose students are also required to sign the covenant.
Canada has always valued diversity. Sadly, the Supreme Court has decided that this does not extend to a law school at Trinity Western University. <a href="https://t.co/563CnJJbsQ">https://t.co/563CnJJbsQ</a> <a href="https://twitter.com/hashtag/TWULaw?src=hash&ref_src=twsrc%5Etfw">#TWULaw</a>
—@TrinityWesternLaw Society of B.C. President Miriam Kresivo called the ruling "a recognition of the responsibility of the Law Society to uphold the rights of all persons and to protect the public interest.
"The court recognized that the Law Society has an overarching interest in protecting equality and human rights, as well as ... removing inequitable barriers to the legal profession, in carrying out our duties and ensuing public confidence."
But Andrew Bennett, director of the religious freedom institute at the Christian-based think tank Cardus, said the ruling could have broader implications for other professions such as medicine, and for other religious schools.
He said the Supreme Court has affirmed and advanced an "imagined conflict" between sexual and religious identities.
"This is not a question of religious identity, it's not a question of sexual identity. It's a question of fundamental freedoms, and also about the freedom to live your faith publicly," he said.
Access to justice
Bennett said the ruling takes a narrow view, suggesting that freedom of religion and conscience are only to be exercised privately.
The Law Society of Ontario applauded the decision for respecting its objective of promoting a diverse bar.
"Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs," said treasurer Paul Schabas.
"Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest."