OTTAWA — The Supreme Court of Canada’s decisions on Trinity Western University’s (TWU) proposed law school have delivered a severe blow to religious freedom, say advocates.
Canada’s highest court released two 7-2 rulings Friday on Trinity Western’s proposed law school, affirming the decisions of both the Law Society of Upper Canada (LSUC) and the Law Society of British Columbia (LSBC) not to accredit the future law school. The court issued two decisions because the Ontario law society won at both lower court levels, while the B.C. society lost.
At issue was the privately-funded, evangelical Christian university’s mandatory community covenant which includes abstaining from sexual activity outside of traditional marriage between a man and a woman.
“This decision . . . effectively relegates freedom of conscience and religion out of section 2 of the Charter (of Rights and Freedoms),” said former Ambassador of Religious Freedom Father Deacon Andrew Bennett, now director of Cardus Law.
“Clearly by the decision today, they are stating that as long as you live your faith privately and within the four walls of your place of worship, that’s acceptable,” Father Deacon Bennett said. “But any expression of belief, any association that in its very essence asserts a particular belief, that’s unacceptable.
The majority on the court ruled TWU’s covenant discriminated against equal access to the law profession by LGBTQ law students. They argued the law societies were right in rejecting the proposed law school’s accreditation because of their respective public interest mandates to ensure equal access by LGBTQ students to the law profession. The main decisions were written by five justices. Two justices wrote concurring decisions with separate arguments. Two justices dissented, arguing TWU should have been accredited.
“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, with similar arguments in the B.C. case.
“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 court said.
Father Deacon Bennett argues that “the courts have effectively put into conflict, or has affirmed a conflict between sexual identity and religious identity,” the former ambassador said. “We cannot build a society based on that understanding, we cannot build a society where we challenge implicitly a person’s human dignity because they hold beliefs that run counter what is a prevailing secular value. This is a very disconcerting decision.”
Archbishop Michael Miller of Vancouver, whose diocese includes Langley, B.C., where TWU is located, said he was “saddened” by the decision “with its potential to undermine freedom of religion, conscience and association in Canada.”
“The decision runs counter to Canada’s tradition of balancing rights and freedoms, and the implications of this decision for constitutional freedoms in Canada are severe,” Archbishop Miller said. The Archdiocese of Vancouver intervened in the TWU case jointly with the Catholic Civil Rights League (CCRL) and the Faith and Freedom Alliance.
“With this decision, the court has moved away from our historic tradition of reconciling competing rights, and closer to a prioritization of rights, essentially ruling some are more important than others,” Archbishop Miller said.
The CCRL said the decision could have ripple effect. “The broader implications of the SCC’s decision will cast a pall on the future interface between religious viewpoints and state engagements in the public square,” said the League in a news release. “Questions will now be raised on continued or future access to state benefits, public funding or government approvals of available programs.”
“It’s a terrible, terrible decision,” said constitutional lawyer Iain Benson, who now teaches law in Australia. “It’s a very dark day in Canadian legal history.”
According to the majority view on the Supreme Court, “the standard religious position on sexual morality no longer accords with a reading of public interest,” Benson said.
“That is extraordinarily serious,” he said. “It has the potential to open up whole swathes of Canadian culture to scrutiny under so-called ‘charter values.’”
“This has now opened the door to all kinds of claims that will come against private religious organizations that hold to the traditional definition of marriage,” said Barry Bussey, director, legal affairs for the Canadian Council of Christian Charities. During arguments in the TWU cases Nov. 30-Dec. 1 last year, Bussey warned ruling against TWU would open an “abyss” that jeopardizes any group, charity or individual requiring accreditation or licensing by the state.
André Schutten, director of law and policy at the Association for Reformed Political Action (ARPA) Canada, said he was “disappointed the decision did not wrestle with the law,” but the majority “grounded their reasons in a nebulous concept of charter values and they did not point back to the constitution, they did not point back to the law.”
ARPA Canada’s legal counsel John Sikkema pointed out that TWU followed “all the relevant rules” to gain accreditation for its law school but the court ruled “a law society can decide what public interest means.”
“There’s no way for a school like Trinity Western to know that in advance,” he said, noting, “They haven’t broken any rule.”
“Without question, the Trinity Western community is disappointed by this ruling,” said Phillips. “However, all Canadians should be troubled by today’s decision that sets a precedent for how the courts will interpret and apply Charter rights and equality rights going forward.”
Asked if TWU will consider dropping the covenant, Janet Epp Buckingham, director of TWU’s Laurentian Leadership Centre and one of the architects of the proposed law school, said, “We are going to continue operating as a Christian university as we have.”
Any decision regarding the covenant would have to be addressed by TWU’s board of governors, she said, noting TWU is not breaking any laws.