Stanley Carlson-Thies

Trinity Western University Law School in British Columbia, planned as the first evangelical Christian law school in Canada, won an important—but largely procedural—victory in the British Columbia Supreme Court on December 10, 2015. It faces continuing obstacles because of TWU’s community covenant, which limits sexual relations to man-woman marriage and is regarded by much of Canada’s population and legal community as discriminatory.

The proposed law school—to simplify a complex story—has been approved to operate, but several provincial law societies (similar to state bar associations) have decided not to accept into law practice in their provinces future graduates from the school, because of the community covenant. Notably, the Upper Canada (Ontario) law society voted to reject graduates—that decision was upheld by an Ontario court, but it has been appealed by TWU; and the Nova Scotia law society voted to reject graduates—a court overturned the decision, and that court ruling has been appealed by opponents of TWU.

And now the BC Supreme Court has decided in favor of TWU. In British Columbia, officials of the BC law society first ruled in favor of the TWU law school after weighing the discrimination charge together with the constitutionally guaranteed freedom of religion. Then members (lawyers) of the law society demanded a voice and in two referenda voted against admitting graduates to the BC bar. Before the second vote, the bar association officials bound themselves to follow its outcome if it went strongly against TWU, and in calling for the vote, sent to all of the lawyers a letter arguing for a no vote while not allowing TWU to send around its counter arguments.

In his Dec. 10 decision, Chief Justice Hinkson of the BC Supreme Court rejected the BC law society’s rejection of TWU graduates, restoring the prior approval. His argument was mainly, but not entirely, procedural. By circulating before the definitive referendum only one side’s argument, the law society wrongly stacked the deck, he said; worse, by binding itself in advance to the referendum’s outcome, the law society’s officials had abdicated their responsibility to carefully weigh all the factors that must govern their decision on the issue. Here is where procedural error encounters constitutional flaws: what went undervalued in the referendum process was TWU’s constitutionally guaranteed freedom of religion. The strongest evidence for this lack? When the officials had initially discussed and decided on the admission of TWU graduates, they had publicly considered both the discrimination charge and the religious freedom rights, but then they bound themselves to follow the outcome of a member vote that was all about rejecting graduates of an allegedly discriminatory institution.

The BC law society may appeal its decision, and eventually the Supreme Court of Canada is likely to have to decide whether provincial law societies can be allowed to reject TWU law school graduates simply because of TWU’s community covenant.

Three notable aspects of the BC decision and the whole process:

(1) While Canada has strong sexual orientation nondiscrimination laws, a decade-old marriage equality law enacted by the federal Parliament, and a less-robust tradition of religious freedom and civil society freedom than the US, the Canadian Supreme Court has rejected the idea of a hierarchy of rights in which equality rights simply trump religious freedom.

(2) While the BC law society argued to the court that it has a duty to the public interest to exclude law graduates from a discriminatory institution, it conceded that it did not claim that TWU graduates would be legally incompetent nor that they were likely to actually engage in discrimination if admitted to the bar.

(3) In a similar challenge to TWU graduates two decades ago, TWU prevailed at the Canadian Supreme Court: the BC public school teachers association had rejected TWU teacher graduates but the Court ruled that this decision had wrongly ignored the religious freedom rights of TWU and overturned it.