The Supreme Court of Canada will deliver a landmark ruling Friday in a closely-watched case that weighs religious freedom against LGBT rights.
The judgment effectively could determine whether Trinity Western University (TWU) — a private, evangelical Christian post-secondary institution — can operate a law school at its Langley, B.C. campus.
Law societies in B.C., Nova Scotia and Ontario have refused to accredit Trinity’s program, arguing that the school’s “community covenant” — which requires students to abstain from sex outside heterosexual marriage — discriminates against LGBT people.
In B.C. and Nova Scotia, the courts have sided with TWU, ruling the university has the right to act on its beliefs as long as there is no evidence of harm.
Ontario’s court of appeal ruled against TWU, calling the covenant “deeply discriminatory to the LGBT community.”
Friday’s judgment will touch on the scope of law societies’ authority — whether they can make accreditation decisions based not just on program qualifications and competence, but also on internal admissions policies such as the community covenant.
Peter Gall is representing the Law Society Of British Columbia in the case. He said the case is both important and a difficult call for the high court to make, since it seeks to reconcile one human right — freedom from discrimination — with another, namely freedom of religion and association.
He said the Supreme Court will have to decide if there should be some special recognition of the public’s interest in keeping the legal profession open to all, in order to deliver “even-handed justice.”
Equal access for all
“The argument is that it is of fundamental importance that people have an equal ability to participate in the legal system and have confidence that the legal system is going to treat everybody in an equal manner,” he said.
TWU’s proposed law school was granted preliminary approval by the B.C. provincial government in 2013, but that approval was later withdrawn due to legal challenges.
The community covenant, which must be signed by all students and faculty, addresses a variety of moral purity matters, including compassion, mercy and kindness. In addition to abstaining from sexual relations outside of heterosexual marriage, it requires that members refrain from lying, cheating, using crude language and drinking alcohol on campus.
Those who break the covenant can face disciplinary action, such as suspension or expulsion.
While some see the sexual prohibition in the covenant as discriminatory, Earl Phillips, the executive director of the proposed TWU law school, said it would be discriminatory to bar students from practising law because they trained in a school that embraces a traditional conception of Christian faith.
Discrimination against students?
“Why should a law school graduate not be accepted into the legal profession because they chose to go to a school where there are traditional Christian values?” he said.
Phillips said the case boils down to the question of whether diversity in Canada leaves room for a law school at a small university that holds traditional Christian values.
Brayden Volkenant, a TWU graduate who petitioned in the case, said there were gay and lesbian students on campus, and noted that the covenant’s sexual prohibition applied across the board to all students who weren’t married. He said he saw the rule as more of an “accountability tool” than something that was rigidly enforced.
“I saw it as more of a, ‘We’re in a community together, this is how we want to strive to live.’ An aspirational thing,” he said. “That’s how I saw it when I was attending, and I think that’s how it played out practically.”
Volkenant said he had hoped to attend law school at TWU, but ended up going to the University of Alberta because the program was in limbo.
The TWU case drew an unusually high number of interveners — 24 in all.
Eugene Meehan, a lawyer representing the International Coalition of Professors of Law and the National Coalition of Catholic School Trustees’ Associations, said there is a significant division between the parties in this case — and the fact that courts in B.C. and Ontario took different approaches to it reflects uncertainty in the law.
“Many parties are in favour of accreditation on the basis that we live in a multicultural society, and a necessary part of that is that people will follow religions with views that others may find offensive,” he said.
“Should the law protect these religious beliefs or prohibit them? For some that oppose accreditation, the view is that religious freedom that interferes with equality has no place in a secular society.”
TWU has 40 other undergraduate programs and 17 graduate programs, including a teachers’ education program. If the Supreme Court rules in its favour, the university hopes to have its law program in place by September 2020.