The Ontario government is likening a proposed Christian law school's requirement of no sexual intimacy outside of heterosexual marriage to a bar against Jews that existed in the province's legal profession nearly 200 years ago.
Ontario says it has insisted that access to the profession be open to all, beginning in 1833, when it abolished a requirement that effectively barred non-Christian lawyers through an insistence on receiving the Sacrament of the Lord's Supper, a Christian ritual. In 1892, Clara Brett Martin became the province's first female lawyer, with the support of the Attorney-General.
"Ontarians have a right to expect that they or their children can seek to become lawyers without facing impediments because of their religion, gender or sexual orientation," the province says in a written filing with the Supreme Court.
The court has set aside two days this fall to hear arguments on whether law societies in Ontario and British Columbia may refuse to license graduates of Trinity Western University's proposed law school in Langley, B.C.
The private university, established in 1962, has a "Community Covenant" obliging students to sign a promise not to engage in sexual activity outside of heterosexual marriage. Law societies in both provinces voted against licensing the graduates, calling the school discriminatory. B.C.'s Court of Appeal overturned one such rejection, while Ontario's top court upheld the other.
Ontario is the only government intervening in the case. In all, a record 26 intervenors are scheduled to appear, after the court added a day for the hearing, and in an unprecedented move granted permission to 17 intervenors it had earlier rejected.
In its legal filing, Trinity Western says the law societies are discriminating against its graduates on the grounds of religious freedom. Such discrimination, it says, harms all religious minorities by forbidding them from joining together to express their beliefs.
Barring its graduates "removes the option for members of the evangelical community to attend a law school that respects, encourages and supports their beliefs."
If the law societies are correct in refusing to recognize Trinity Western, the school says, "the Charter [of Rights and Freedoms] does not adequately protect the ability of all religious educational communities-schools, churches and other organizations to obtain required state approvals and recognition to carry out their private activities in the context of their protected religious beliefs."
TWU was established by the Evangelical Free Church, and describes evangelicals as a distinct religious subculture in Canada, amounting to 11 per cent or 12 per cent of the population.
"Evangelical Christianity is a minority religious group, having distinctive religious beliefs, including an emphasis on practising the beliefs and moral standards expressed in the Bible. These beliefs and practices can put its members in tension with broader societal norms and popular opinion."
An intervenor that supports TWU's position, the Christian Legal Fellowship, argues that the law societies are wrong when they say they are acting in the public interest by refusing to accept graduates of the law school.
"The public interest is not a sword to enforce moral conformity with the Law Societies' approved values," it says in a filing with the Supreme Court. A blanket exclusion based on the Community Covenant casts unwarranted aspersions on all lawyers with traditional beliefs, it adds.
Two same-sex advocacy groups, Start Proud and OUTlaws, say in a joint filing that the Community Covenant means LGBTQ persons, including married ones, "can never be their authentic selves while attending TWU. … No one should be forced to renounce their dignity and self-respect in order to obtain an education."
The Law Society of Upper Canada, the self-regulating body for the legal profession in Ontario, says it cannot discriminate directly or indirectly.
"The Law Society's accreditation of TWU would have amounted to the Law Society condoning TWU's discriminatory policy and exhibiting a preference for the religious tenets of Evangelical Christianity," it said in its written argument filed with the Supreme Court.