The Supreme Court has upheld the right of provincial law societies to reject the graduates of a proposed Christian law school over its requirement that students abstain from sex outside of heterosexual marriage.
In a highly anticipated contest between religious freedom and equality, most of the court said the limit on religious freedom was a minor one – well short of “forced apostasy,” as five of the judges put it. By comparison, the effects on equality, if the school had been accredited, would have been large enough to threaten the integrity of the legal system, the judges said.
The court had been asked whether the law societies of British Columbia and Ontario were within their rights when they voted not to give licences to graduates of Trinity Western University’s proposed law school at its campus in Langley, B.C. In a pair of 7-2 rulings, the court said they were.
“Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession,” five of the seven judges in the majority wrote.
The ruling means the law school will probably never open its doors, as long as it insists on keeping its “community covenant” – an agreement prohibiting its students from sexual intimacy outside of heterosexual marriage. (Same-sex marriage is legal throughout Canada.)
B.C.’s Ministry of Advanced Education had withdrawn its preliminary approval of the school when the province’s law society refused to accredit it. On Friday, it said in an e-mail that the Supreme Court ruling “appears consistent with our government’s values.”
The school indicated on Friday that it may reconsider the wording of the covenant.
“We will review the community covenant, I’m sure,” Earl Phillips, executive director of the proposed law school, told The Globe and Mail.
He called the court’s decision a major setback for religious freedom.
“This really means that diversity in Canada doesn’t have room for a small, free-standing university with Christian principles to operate a law school.”
Trinity Western, established in 1962, describes itself as Canada’s largest independent Christian liberal arts institution, with an enrolment of 3,600. In 2012, it proposed to create a law school of 170 students, and quickly won preliminary approval from the Federation of Law Societies of Canada.
But the law societies of British Columbia, Ontario and Nova Scotia refused to accredit it, arguing that to do so would be to endorse discrimination, thus harming the justice system’s reputation. (The Nova Scotia dispute was not before the Supreme Court; the province’s appeal court sided with the school, and the provincial law society chose not to fight that ruling.)
The case had divided the lower courts, and drawn a record 26 groups who intervened to present arguments and social context to the Supreme Court. Ontario’s top court, siding 3-0 with the law society, had called the covenant “degrading,” likening it to former U.S. laws discriminating among interracial couples. In sharp contrast, B.C.’s Court of Appeal ruled 5-0 that the school’s religious freedom was at stake, while the equality issue was a minor one.
But most of the Supreme Court saw it the other way around. Because the school portrayed the covenant not as necessary to its students’ religious belief, but merely to an optimal Christian learning environment, five judges said the limit on religious freedom was minor. Further undermining the school’s argument, a prospective Christian student, Brayden Volkenant (a party to the case alongside the school) said he didn’t know if he would have attended TWU, but would have “appreciated the option.”
“Prospective TWU law students effectively admit that they have much less at stake than claimants in many other cases that have come before this Court,” the five judges said in a jointly authored decision. (They were Chief Justice Richard Wagner, Justice Rosalie Abella, Justice Clément Gascon, Justice Andromache Karakatsanis and Justice Michael Moldaver.) “Denying someone an option they would merely appreciate certainly falls short of ‘forced apostasy.’ ”
A sixth, Justice Malcolm Rowe, went even further. By law, he noted, the school is open to all, and the covenant would therefore constrain non-believers. Thus, he said, the case falls outside the scope of freedom of religion. By contrast, the now-retired chief justice Beverley McLachlin, in the final decision of her 28-year career on the court, said that the limit on freedom of religion was a major one, but still justified in the interest of equality.
The two dissenting judges, Justice Russell Brown and Justice Suzanne Côté, said the law society has the authority to rule only on the fitness of a school’s legal program. They also said the law societies’ decisions interfered with religious freedom and were contrary to the state’s duty of neutrality.
“The unequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society,” they wrote.
Paul Schabas, treasurer of the Law Society of Ontario, said the court had affirmed the importance of promoting equality in public professions.
What the ruling means for future freedom-of-religion cases was a matter of some dispute among legal scholars on Friday.
Richard Moon, a University of Windsor law professor specializing in freedom of religion, said the ruling was about “what space should be given to a religious organization to operate according to its own norms.”
Dwight Newman, who teaches at the University of Saskatchewan College of Law, said in a tweet that the court had “gutted” freedom of religion by linking it to belief in necessary practices. Others said the ruling depended on its context, involving a law school seeking accreditation.
The ruling suggests the court has changed its views over time. In 2001, the court ruled 8-1 in favour of Trinity Western’s teachers college receiving accreditation, despite a requirement that students sign a document asserting that the Bible condemns homosexuality.