The Supreme Court of Canada has found in favour of the law societies of B.C. and Ontario and against Trinity Western University in a landmark case about religious freedom and civil rights.
“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,” the majority of justices wrote in their decision.
Langley’s TWU, a private Christian university, has been fighting in the courts for years for the right to open a law school on its campus.
However, law societies in B.C. and Ontario challenged its right to educate lawyers because of the faith-based school’s Community Covenant. The Covenant, among other things, bans sexual intimacy outside of heterosexual marriage.
Both law societies withheld TWU’s right to certify new law school graduates.
The case pitted the rights of potential LGBTQ students, or potentially even students in common-law relationships, against the religious freedom of the independent university.
The majority of judges found that the Law Society of B.C. (LSBC) has “an overarching interest in protecting the values of equality and human rights.”
The judges also found that eliminating barriers to legal education would improve the quality of the legal profession.
“We feel this is a lost opportunity for Canadians, many of whom do not have affordable access to justice,” says Earl Phillips, executive director of TWU’s proposed law school.
Phillips also said Canadians should be “troubled” by what he called a decision that sets a precedent for how the courts will interpret and apply Charter rights.
The LSBC’s presidents was pleased witht he decision.
“At the heart of the Supreme Court’s decision is a recognition of the responsibility of the Law Society to uphold the rights of all persons and to protect the public interest,” said LSBC president Miriam Kresivo. “The court recognized that the Law Society has an overarching interest in protecting equality and human rights, as well as to removing inequitable barriers to the legal profession, in carrying out our duties and ensuing public confidence.”
— Trinity Western (@TrinityWestern) June 15, 2018
CCLA is pleased with the #SCC's decision on Trinity Western University, upholding the law societies' decisions not to accredit a law school at this university whose mandatory Community Covenant discriminates against #LGBTQ students. #TWU
— Canadian Civil Liberties Association (@cancivlib) June 15, 2018
The judges did take into account the arguments that religious freedom is a right not just for individuals to practice their faith, but to form religious communities.
The case became one of “overlapping Charter protections,” according to the judgment.
The decision suggested that if TWU’s Community Covenant was not mandatory, the law school might have gone ahead.
“Indeed, when the LSBC asked TWU whether it would ‘consider’ amendments to its Covenant, TWU expressed no willingness to compromise on the mandatory nature of the Covenant,” the majority wrote. “The decision therefore only prevents TWU’s community members from attending an approved law school at TWU that is governed by a mandatory covenant.”
The justices wrote that a mandatory covenant was not absolutely required to study law in a Christian learning environment. It only prevents studying in an “optimal” learning environment in which everyone must abide by the covenant.
Overall, the court found that the stakes for TWU students were low.
“Put otherwise, denying someone an option they would merely appreciate certainly falls short of ‘forced apostasy,’” the justices wrote.
On the contrary, it found that harms to LGBTQ students enroling at TWU could be more severe, including harm to dignity and self-confidence, as well as stigmatization and isolation.
“The public confidence in the administration of justice may be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity for three years in order to receive a legal education,” the justices wrote.
Justices Suzanne Coté and Russell Brown dissented from the majority’s decision.
They found that the LSBC only had the right to determine whether law schools would competently educate their students – and that there was no evidence against TWU performing that function.
This was not the first time that TWU has been challenged in the courts due to its Community Covenant. The B.C. College of Teachers challenged TWU’s right to certify teachers, but in the 2001 Supreme Court decision, the justices found for TWU.
There was a key difference between those cases. The College of Teachers argued that TWU grads could bring discrimination into the classrooms where they taught after graduating. In this case, the LSBC was only concerned with its own mandate to avoid discrimination, the majority of judges wrote.