OTTAWA ̶ In a pair of closely watched cases that pitted freedom of religion against equality rights, the Supreme Court of Canada has ruled in favour of two law societies that refused accreditation to a proposed law school at a Christian university in British Columbia.
The law societies of Ontario and British Columbia had refused to accept future law school graduates from Trinity Western University (TWU) in Langley because the privately funded, evangelical Christian university has a community covenant that prohibits sexual activity outside of traditional marriage.
In 7-2 decisions handed down on June 15, the Supreme Court justices ruled the covenant discriminated against equal access to the law profession by lesbian, gay and other sexual minorities. . Though six of the nine justices ruled that religious freedom was engaged—one said it was not engaged—they argued the law societies had proportionately balanced competing Charter rights.
The Law Society of Upper Canada (LSUC) had won at both lower court levels, while the B.C. Law Society had lost at both levels.
At issue was a balancing of the Charter rights of religious freedom and freedom of association with the public interest statutory objectives of Ontario’s law society.
“In our respectful view, the LSUC’s decision not to accredit TWU’s proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the LSUC sought to pursue,” the majority wrote in dismissing TWU’s appeal of the Ontario Court of Appeal decision. “The LSUC’s decision was therefore reasonable.”
“In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession,” the majority ruled in the Ontario case. “To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics.”
“This is especially so in light of the societal trust enjoyed by the legal profession,” the decision said. “As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.”
The majority ruled the LSUC’s decision “only interferes with TWU’s ability to operate a law school governed by the mandatory covenant,” viewing it as a minor infringement, because a Christian law school could operate without a covenant.
“This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.
In the B.C. decision, the majority argued “an entire law school would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity.”
“Those who are able to sign the covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people,” the justices said.
Janet Epp Buckingham, a professor at Trinity Western who helped develop the proposal for the law school, called the decision disappointing.
“We feel that this is a loss for diversity in Canada,” she told reporters in Ottawa. “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.”
The university will have to take time to process the judgment, she said, and had no immediate plans for changes.
“Trinity Western University is not violating any law, they did not say we are violating any laws, so for the moment we’re going to continue to operate as we have. We do invite a diverse array of people to come to Trinity Western so long as they’re willing to become part of our community.”
The university had argued before the courts that it does accept LGBTQ students, some of whom are evangelical Christians who abide by the covenant.
Andrew Bennett, who formerly headed Canada’s Office of Religious Freedom and now promotes religious freedom through the Cardus faith-based think, suggested the decision advances “an imagined conflict between sexual identity and religious identity.”
“When we do that, it becomes very difficult for us to build a common life as Canadians,” said Bennett.“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 the freedom to live your faith publicly. A public faith is at the heart of freedom of religion and freedom of conscience.”
Bennett, a deacon in the Ukrainian Greek Catholic Church, compared the TWU ruling to the Supreme Court’s recent Wall decision, which upheld the right of the Jehovah Witnesses to determine their own rules governing their faithful.
“Clearly Wall states that it’s OK to practise your faith within the walls of your church, your temple, your gurdwara, but when you take that out and live your faith publicly, or when you associate with others who have the same faith as you …. It seems what the court has done ̶ when you put these two decisions side by side ̶ is they have taken a very narrow understanding of freedom of religion and freedom of conscience, that it is only to be exercised privately.”
The majority on the court—Justices Rosalie Abella, Michael Moldaver, Andromache Karakatsanis, Robert Wagner, now Chief Justice, and Clement Gascon—wrote a joint decision, arguing while religious freedom was engaged, the public interest mandates outweighed it. Justice Malcolm Rowe agreed with the majority decision, but argued in both cases religious freedom was not engaged. Former Chief Justice Beverley McLachlin, in her last decision with the Supreme Court, wrote concurring decisions, though she said religious freedom was significantly engaged. She referred to the 2001 decision regarding TWU and accreditation of its teachers college.
“In arriving at this conclusion, I am mindful of the fact that this Court has held that a decision to deny accreditation to TWU’s school of education was unreasonable: TWU 2001,” she wrote. “That case, however, is distinguishable from the one before us. There, the College of Teachers based its claim on the concern that teachers trained at TWU would bring discrimination into the classroom.”
“The LSBC here has not impugned the competence of potential graduates from TWU,” she wrote. “Instead, it is concerned with upholding its own mandate by seeking to avoid condoning or even appearing to condone discrimination.”
Justices Suzanne Côté and Russell Brown disagreed with the majority, arguing the Charter binds state actors, but “not private institutions like TWU.” They argued the law societies should have accredited TWU’s law school, and that examining the school’s admissions policies and its covenant were beyond their public interest mandate to ensure future lawyers’ competence and conduct.
“Accommodating religious diversity is in ‘the public interest,’, broadly understood, and approving the proposed law school does not condone discrimination against LGBTQ persons,” Côté and Brown wrote. While recognizing that many LGBTQ students would choose not to attend the law school, or sign the covenant at a cost to themselves, they argued. “TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions” (TWU 2001, at para. 25).”
“In our view, however, the majority fails to appreciate that the unequal access resulting from the covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society.”
The cases attracted a number of intervenors from Catholic and other religious groups, including the Catholic Civil Rights League, the Canadian Conference of Catholic Bishops, and the Archdiocese of Vancouver, who warned that a decision in favour of the law societies could have far-reaching implications for religious freedom in Canada.