British Columbia’s top court has upheld the right of Trinity Western University to operate a law school, setting the stage for the Supreme Court of Canada to weigh the religious freedom of a small, private university with the rights of LGBTQ people.
The school’s community covenant, which opponents say is discriminatory because it forbids sex outside heterosexual marriage, has also prompted legal challenges in two other provinces – including one in Ontario that is already the focus of a potential hearing at the country’s Supreme Court.
In B.C., the province’s law society initially accredited the university’s law school, but reversed that decision after facing backlash from its members. In a unanimous decision released Tuesday, five B.C. Court of Appeal judges said the law society was wrong to reverse its original decision.
“A society that does not admit of and accommodate differences cannot be a free and democratic society – one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” wrote the judges, as they upheld a lower court decision that also sided with the university.
“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 fact intolerant and illiberal.”
The university quickly applauded the ruling.
“Everyone, religious or not, should celebrate this decision as a protection of our Canadian identity,” Trinity Western spokeswoman Amy Robertson said in a statement. “The freedom to believe as we choose and practise accordingly is one of the most profound privileges we have as Canadians.”
The school has fought similar cases in Nova Scotia and Ontario.
In Nova Scotia, the province’s appeal court sided with the school and the law society there did not appeal.
In Ontario, however, Trinity Western lost at the appeal court level and the school has filed leave to appeal to the Supreme Court. The court has yet to announce whether it will hear the case.
Margot Young, a professor at University of B.C.’s Allard School of Law, said she expects the case to land at the Supreme Court.
Prof. Young said she was not convinced by the argument that the TWU law school would have a minimal impact on education rights for LGBTQ people, arguing that approving the school sends a negative message about citizenship and equality.
“Are we okay with having a legal education system that makes more seats available – as long as you’re not gay or lesbian?” Prof. Young said.
The Law Society of British Columbia said the appeal court ruling “adds another dimension to an already complex issue.” The society said it would review the court judgment before deciding what to do next.
The decision is the latest in a series of court rulings related to TWU’s law school, which the university first proposed in 2012 with a planned opening date of this year.
The Law Society of B.C., which represents lawyers in the province, has wrestled with the question of whether to approve a law school at TWU. Initially, in 2014, the society approved the proposal, although some benchers – essentially the society’s board of governors – opposed it.
That triggered a backlash among members and a referendum, in which a majority voted against accrediting the school.
Following that referendum, in December, 2014, B.C.’s Minister of Advanced Education revoked his consent for TWU’s proposed program, pending the result of the legal case.
Much of the appeal court decision concerns the balancing act between rights to religious freedom and equality rights – including the right to go to law school – for LGBTQ people.
The judges said that while the school would, in principle, have a detrimental impact on the rights of LGBTQ people, that impact would be relatively small.
“TWU is a relatively small community of like-minded persons bound together by their religious principles,” the judges said. “It is not for everyone. For those who do not share TWU’s beliefs, there are many other options.”
TWU’s law school would add 60 seats to a total of about 2,500 in Canada, the decision said, adding: “the decision not to approve will not increase accessibility to law school for LGBTQ students. The number of seats would remain the same.”
The case drew more than a dozen intervenors, whose view of the decision mirrored their positions.
“This decision seemed to set aside the impact on the LGBTQ community as theoretical or very minor,” said Ian Bushfield, executive director of the B.C. Humanist Association, which opposes the school.
“I was surprised [the decision] downplayed that so much – that was something I did not expect to see in court in 2016.”
The Evangelical Fellowship of Canada, which supports TWU’s proposal, welcomed the judgment, calling it an affirmation of Canada’s religious diversity.Report Typo/Error