OTTAWA, Ontario — “Religious freedom can be limited where an individual’s beliefs or practices harm or interfere with the rights of others,” the Supreme Court of Canada ruled on Friday in issuing opinions in favor of the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada’s (LSUC) decisions not to grant accreditation to a proposed Christian law school in the province.
It said that Trinity Western University’s requirement that students agree to a lifestyle covenant, which includes a commitment to reserve sexual intimacy for marriage—and that between a man and a woman—is “exclusionary” and could cause harm to homosexuals.
As previously reported, the university has three concurrent lawsuits running against various provincial legal societies that have denied approval for the university to open an accredited law school due to its stance on sexuality and marriage. Two of those suits, Trinity Western University v. Law Society of Upper Canada and Trinity Western University v. Law Society of British Columbia, were brought before the Canadian Supreme Court, and were both decided this week, but with separate written opinions.
“The reality is that most LGBTQ individuals will be deterred from attending TWU’s proposed law school, and those who do attend will be at the risk of significant harm,” wrote the justices in one of the two decisions, which were both 7-2.
Read the rulings here and here.
While the majority noted that the denial of accreditation does indeed infringe on the religious liberty of Trinity Western University, a private Christian institution, they said that the infringement is “minor” because it “only interferes with TWU’s ability to operate a law school governed by the mandatory covenant.” The justices said that the school can’t “impose” their religious beliefs on students.
“Limits on religious freedom are often an unavoidable reality of a decision-maker’s pursuit of its statutory mandate in a multicultural and democratic society. Religious freedom can be limited where an individual’s beliefs or practices harm or interfere with the rights of others,” they wrote.
“Except for the interference identified above, no evangelical Christian is denied the right to practice his or her religion as and where they choose. The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm,” the majority opined.
The justices concluded that denial of accreditation was made in “the public interest, which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.”
The university policy at issue states, “According to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation. Honoring and upholding these principles, members of the TWU community strive for purity of thought and relationship, respectful modesty, personal responsibility for actions taken, and avoidance of contexts where temptation to compromise would be particularly strong.”
Students and staff at Trinity Western University must sign a covenant committing to personally uphold these lifestyle standards.
As previously reported, the university filed suit against the Law Society of British Columbia in 2015 after the Society withdrew its initial approval following a members’ referendum in October 2014. In December of that year, the Supreme Court of British Columbia ruled in favor of Trinity Western University, scolding the Law Society for treating the school unfairly by not balancing its Charter rights with that of homosexual students.
“There is no basis upon which a conclusion could be drawn or any evidence from the Special General Meeting or the October Referendum proceedings that the LSBC’s (Law Society of British Columbia’s) membership considered, let alone balanced, the petitioners’ Charter rights against the competing rights of the LGBTQ community,” wrote Chief Justice Christopher Hinkson.
The Society then appealed the decision to the British Columbia Court of Appeal, which unanimously agreed with Hinkson in November 2016.
“The Law Society’s decision not to approve TWU’s law school is unreasonable because it limits the right to freedom of religion in a disproportionate way—significantly more than is reasonably necessary to meet the Law Society’s public interest objective,” the court wrote. “This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”
The Society appealed to the Supreme Court of Canada, which issued a ruling against the law school on Friday. Two justices, Russell Brown and Suzanne Cote, dissented in both the British Columbia and Ontario cases before the court, finding that the private Christian school had a right to operate in accordance with its religious beliefs.
“In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. The unequal access resulting from the covenant is a function not of condonation of discrimination, but of accommodating religious freedom,” they wrote in Trinity Western University v. Law Society of Upper Canada.
“Approval of [Trinity Western University’s] proposed law school would not represent a state preference for evangelical Christianity, but rather a recognition of the state’s duty—which [the Law Society of British Columbia] failed to observe—to accommodate diverse religious beliefs without scrutinizing their content,” Brown and Cote also opined in Trinity Western University v. Law Society of British Columbia.
Earl Phillips, executive director of Trinity Western University’s proposed law school, lamented the majority decision, stating that it is not only detrimental to the legal profession, but it also sets a dangerous precedent for the country’s courts to follow.
“We feel this is a lost opportunity for Canadians, many of whom do not have affordable access to justice,” he remarked in a statement. “There are only three common law schools in Canada that offer a course in charity law. The TWU law school would have offered a specialty in charity law. Because Canada has the second largest charitable and non-profit sector in the world, this loss stands to impact Canadians coast to coast.”
“Without question, the Trinity Western community is disappointed by this ruling. 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,” Phillips mourned.
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