Trinity Western decision sends troubling religious freedom message

University plans to appeal the ruling to the Supreme Court of Canada

OTTAWA (CCN)

Deborah Gyapong / CCN.

Religious freedom advocates are troubled by a June 19 Ontario Court of Appeal ruling allowing the infringement of Trinity Western University's (TWU) religious freedom.

The Court upheld a divisional court ruling that the Law Society of Upper Canada had made a reasonable decision in refusing to accredit the evangelical Christian university's proposed law school.

Trinity Western said it would appeal the decision to the Supreme Court of Canada.

"This isn't just a loss for TWU," said TWU spokesperson Amy Robertson. "This is a loss for all Canadians. Freedom of conscience and religion is the first of the fundamental freedoms mentioned in the Charter. It is deeply compromised by this decision, and everyone in Canada, religious or not, should be concerned.

"To find that religious freedom was infringed, as the court did, but then to rule that the infringement was justified despite evidence that the infringement was not necessary, is very troubling," said Association for Reformed Political Action (ARPA) Canada legal counsel Andre Schutten, who intervened in the case. "The Law Society is a State actor, and as such, should not discriminate against minority Christian groups simply because their faith commitments may be unpopular."

The Law Society, like that in British Columbia and Nova Scotia, said they would not allow graduates of the school to come to the bar because of TWU's community covenant, requiring faculty and students to agree not to engage of sexual activity outside the marriage of a man and a woman.

The law societies have deemed this discrimination against homosexuals and the transgendered. TWU lost at both court levels in Ontario, but has won in both British Columbia and Nova Scotia at the lower court levels. Decisions from the respective appeal courts have not come down. TWU's proposed law school has been accredited by the law societies in other provinces.

"The Community Covenant is a core part of defining the TWU community as distinctly Christian," said Robertson. "We are not making a statement about LGBTQ people; we are making a statement about traditional Christian marriage, which is sacred to us. The same covenant calls for all members of the TWU community to respect the dignity of others regardless of their background. Loving one another without exception is one of the most important principles of the Christian faith."

"Based on my conversations with others in the TWU community, I know that LGBTQ students attend TWU, and they find it a safe, welcoming place to be," she said.

"In court and in public debate, this dispute between TWU and the law society has been framed as equality rights of the LGBTQ community on one hand against the religious freedom rights of Christians on the other," said Schutten. "But the section 15 equality right in the Charter also protects religious individuals. By denying accreditation to an approved law school simply because the students voluntarily sign onto a religious community covenant that some lawyers or judges find distasteful results in discrimination against Christian students."

"From a Christian perspective, our identity is first found in Jesus Christ," he said. "We are not merely or primarily sexual beings. That's why there are Christians who are gay or lesbian who willingly sign onto this covenant and who attend TWU."

"This decision endorses a false dilemma, that to protect religious rights is to undermine LGBTQ rights. If this decision holds, this case marks a serious decline in religious freedom," Schutten said.

"Obviously, I'm disappointed," said constitutional lawyer Albertos Polizogopoulos, who represented the Evangelical Fellowship of Canada and Christian Higher Education Canada in their interventions.

He said it is good, however, the Court "recognized Trinity Western University's religious freedom was being engaged" and the decision "goes on to recognize" the decision of the Law Society's violation of religious freedom is "not trivial or unsubstantial," but a "real, severe violation."

While this recognition is important, the judge goes on to conclude the Law Society's decision was reasonable "in light of the legislative scheme in Ontario, the process the law society was following," he said. Because the decision is so tightly related to the legislative context in Ontario, Polizogopoulos said he doubts it will have any precedent-setting effect on other provinces.

Catholic Civil Rights League president Phil Horgan agreed. "I don't consider the Ontario decision to be instructive on the other two provinces and their respective law societies."

"However, there is a concern that the notions of a robust or authentic pluralism appear to be marginalized in favour of a notion of tolerance which does not allow for particularly religious approach to professional qualification," he said. "The competing positions were one of authentic pluralism vs. 'tolerance' which is defined by a certain uniformity of thought. In this case, that uniformity of the public interest has trumped authentic pluralism."

The League intervened at both court levels in the TWU cases in British Columbia and Nova Scotia, but was denied intervener status in Ontario.