Trinity Western University’s (TWU) decision to drop its mandatory community covenant has left religious freedom advocates wondering what the implications are for the future.
TWU’s president Bob Kuhn said the private evangelical Christian university has made no plans to re-start its pursuit of a law school. “It’s not on the list for immediate priority if any decision is made,” he said.
The decision to drop the covenant — which among other things, required students to refrain from sexual activity outside of traditional marriage — was under discussion for some time, even before the Supreme Court’s June decision, he said.
The timing of the announcement in mid-August had to do with wanting the policy in place for the start of the academic year in the fall.
The high profile of the TWU case led to a “lot of misinformation” about the university. that it “discriminated” and “did not permit gays to attend,” which was not true, Kuhn said.
“No one is refused entry based on their belief system, sexual orientation or other issues.”
The Supreme Court of Canada decision “provided some guidance, or at least a reference point for pursuing this,” he said.
The covenant remains in place for faculty and staff and “in our commitment to a biblically-based evangelical Christian perspective,” he said. “We’re not making any changes to our definitions we consider critical and central to the Christian message and our Christian foundations.”
Archbishop J. Michael Miller of Vancouver said he hopes TWU will go ahead with its proposed law school. “I think a law school at a Christian university is a good thing.”
The Archdiocese’s intervention, done jointly with the Catholic Civil Rights League and the Faith and Freedom Alliance “concerned freedom of religion, conscience and expression,” something “our constitutional history promote,” said Archbishop Miller, noting the Supreme Court of Canada in its June TWU decisions “did not really take on those arguments.”
The Archdiocese was not arguing for the covenant per se, he said, but for TWU’s right to have a covenant.
“The (Supreme Court’s) response really seemed to be the objectionable nature of the covenant,” the archbishop said dropping the covenant should make it easier for the proposed law school to get accreditation from the B.C. and Ontario law societies and for TWU to find support from the courts.
“They might find new grounds but I think it’s going to be harder because they argued heavily on the grounds of the covenant,” he said. “They didn’t want to try to argue that religious institutions had no right to a law school. To me, that doesn’t preclude the possibility they might come forward with other arguments.”
Phil Horgan, the president of the Catholic Civil Rights League said TWU has addressed the impediment to having a law school proceed.
“On the negative side, we have witnessed the impact of three Law Societies, but not all, which have chosen to apostatize a Christian university of certain commitments of its faith claims in higher education,” Horgan said.
“Further, the decision of the Supreme Court has overturned a previously understood constitutional matrix, especially as it applied to religious claims. Rather than apply an approach of genuine pluralism, and an acceptance of difference between competing claims, the majority accepted one set of claims over others, a process of allowing LGBTQ claims to Charter ‘values’ to trump recognized religious freedom claims.”
“Now that TWU has removed the mandatory nature of its community covenant – the sole objection of both the Court and law societies – will regulators of the legal profession welcome a law school at the evangelical Christian university if TWU resurrects its proposal?” asked former Religious Freedom Ambassador Andrew Bennett, the director of Cardus Religious Freedom Institute.
“Or, will they find new grounds to object to the creation of Canada’s first Christian law school?”
Bennett reiterated his criticism of the Supreme Court’s “narrower, truncated view of the fundamental right to freedom of conscience and religion” in its TWU decision.”
“We regret that the Supreme Court of Canada took a narrower, truncated view of the fundamental right to “The Court’s decision challenged the ability for Canadians to manifest their beliefs through action in society beyond public worship,” Bennett said.
“This raises questions about how governments, other state, and quasi-state actors in Canada will respect the rightful place of faith-based institutions in the public square.”
“Anti- religious bigotry will never be satisfied,” said Canadian constitutional lawyer Iain Benson, who now teaches law in Sydney, Australia. “The means of explaining of their concerns with developments will be plastic and endlessly amorphous.”
“The usual anti-religious ingenuity will be used to seek not only plausible public arguments but also judicial support, he said, noting only the British Columbia Court of Appeal and the two dissenting justices in the Supreme Court “understood the nature of diversity in Canada.”
Benson said justices needed to “know the important questions of society, to see through the simplistic formulations of the day and ground justice in rigorous philosophical, theological and judicial framework. The majority did none of that.”
“Now that confusion has been given a judicial imprimatur, we can except to see a deepening set of attacks on religious associations and their members,” he said.
Albertos Polizogopoulos, a constitutional lawyer who represented the Evangelical Fellowship of Canada (EFC) in its intervention in the TWU cases, noted in an article for Convivium.ca the division in the Christian legal community following the university’s decision to drop the covenant.
“Some disapprove of the decision and ask why TWU didn’t simply make the Community Covenant voluntary years ago, instead of spending years and millions of dollars fighting a legal battle that it ultimately did not need to wage,” he said.
“Others say that TWU fought the good fight, lost and now is simply responding to the Supreme Court’s decision in an attempt to preserve its institution and community.”
Polizogopoulos said the Court’s analysis had to do with the “reasonableness” test of the various law societies’ decisions regarding accreditation, yet that same test could allow law societies to come to differing conclusions.
“And therein lies the criticism: the reasonableness test results in unequal application or protection of Charter rights,” he wrote.
Kuhn said some of the criticism of TWU for dropping the covenant reflects an “oversimplification” of a complex legal case reflected in the Supreme Court’s TWU decision.
“We were deeply disappointed in that decision,” he said. “We don’t have much of a choice but to comply with the law of the land and act accordingly, as would any other Christian organization in in other circumstances.”
“It was an important issue; it remains an important issue, but has the benefit of a Supreme Court of Canada decision,” he said. “It puts it in context; it creates a picture of the future.”
Kuhn said TWU thought the 2001 Supreme Court decision regarding its teacher’s college would also apply to its proposed law school.
The 2018 TWU decision dealt with the “unique characters of the law societies, and to what extent those law societies could impose their view of moral and religious faith on Trinity Western,” he said.
“Now we know,” he said. “We haven’t change our principles at all, but this clarifies question of admission of students from all variety of belief and non- belief which is consistent with our mandate to deliver higher education from the Christian viewpoint.”gra