At issue is Trinity Western University’s Community Covenant Agreement, which asks students to agree to abstain from sexual intimacy outside of heterosexual marriage.
An Ontario Superior Court has dealt a blow to Trinity Western University, ruling that Ontario's law society acted within its rights when it denied accreditation to the proposed law school from the Christian-based, B.C. university in an April, 2014, vote.
The decision by directors of the Law Society of Upper Canada infringed TWU's freedom of religion, but the court considered that it did so to protect individuals' rights to equal treatment. Since announcing its plans to open a new law school, TWU has been at the centre of a national debate over its Community Covenant, which asks students to agree to abstain from sexual intimacy outside of heterosexual marriage or face possible suspension or expulsion.
The ruling "points a knife at the freedom of faith communities across Canada to hold and practise their beliefs," said Guy Saffold, a spokesman from TWU, who added the school plans to appeal the ruling.
Judges Frank Marrocco, Ian Nordheimer and Edward Then of Ontario Divisional Court, resolutely came down on the side of critics who argue TWU's Covenant constitutes discrimination, as it effectively means the school is closed to lesbian or gay students. If LGBTQ students want to attend the law school, the decision states, they would have to "essentially bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship."
That's too high a price to go to law school and violates equality of opportunity, "a value of fundamental importance to our country. It is a value that state actors ... are always entitled to respect and promote," the decision said.
"We're very pleased with the decision and how the court respected how the law society balanced these rights," said Janet Minor, treasurer for the Law Society of Upper Canada.
Courts in British Columbia and Nova Scotia where TWU is waging other legal battles for accreditation will look at the decision with interest, she added.
During court appearances in June, the school's lawyer had argued that the issues being debated were decided by the Supreme Court 14 years ago.
In 2001, the Supreme Court ruled that the B.C. College of Teachers could not deny accreditation to TWU's education faculty because there was no evidence that its teaching college graduates discriminated against students.
"There is no reason to believe that the Supreme Court's willingness to protect religious freedom has diminished," Robert Staley, a lawyer representing TWU, said on the first day of hearings in June.
Thursday's court decision rejected Mr. Staley's argument, pointing out differences in the impact of the two cases. As well, the judges suggested, the Supreme Court could change its ruling if it revists the case. Attitudes "toward LGBTQ persons, have changed considerably in the last 15 years. As such, this area of law is probably the most fluid of any area of law in terms of the appropriate application of legal principles," the decision said.
"We've seen a LGBTQ trajectory of what we consider appropriate access to our institutions, you see a quickening pace of how we treat these issues," said Douglas Judson, the director of Out on Bay Street, a LGBTQ advocacy group for new graduates and students, which intervened in the case.
TWU has said, in court and outside it, that if it fails to gain accreditation in Ontario, it will have to revisit opening a law school at all. That would be an economic decision, the three-judge panel said. "What TWU would then be essentially saying is that it not only wishes to operate its law school ... in order to advance its religious beliefs, but that it will only do so if it is guaranteed access to the single largest market for law school graduates."