Stanley Carlson-Thies, July 22, 2016

The evangelical law school that Trinity Western University, British Columbia, is seeking to open ran into another obstacle when, on June 29, 2016, the Ontario appeals court upheld the decision of the provincial bar association not to admit TWU law graduates to the practice of law in this most populous of Canadian provinces. The bar association says it has a public duty to promote a diverse profession and that means excluding TWU, because TWU’s Community Covenant, which restricts sex to man-woman marriage, in effect excludes LGBT would-be lawyers. And yet LGBT applicants have ready access to every other Canadian law school, while TWU would be the first and only faith-based Canadian law school.

Indeed, both the Ontario court and the bar association have it backwards: in truth for the legal profession to be diverse, law schools must be allowed to be different from each other.

The TWU law school has already been approved to open its doors. But to practice law, its graduates need to be admitted to the bar in the various provinces. So far, seven provincial law societies have decided to accept TWU law graduates and three have decided to refuse. The British Columbia and Nova Scotia decisions against TWU were overturned in court, with those reversals now on appeal. In this most recent court action, the decision against TWU by Ontario’s Law Society of Upper Canada (LSUC) has been upheld. No doubt the decision will be appealed to the Supreme Court of Canada because the Ontario bar is the largest in the nation and the institutional religious freedom principles at stake are so important.

In 2001, TWU won in the Canadian Supreme Court against an effort by the British Columbia teachers association not to license graduates of its education program. The Court rejected the presumption that, due to its Community Covenant, TWU graduates would be bigoted against LGBT students. There was no actual evidence of discriminatory conduct, the Court pointed out.

In the current dispute, the Ontario court and the provincial law society reject any presumption that TWU law graduates will be bigoted. Instead, LSUC argued, and the appeals court has now agreed, that its duty to protect the public interest requires it not to accredit a law school that restricts access to the profession by having policies that discriminate against gay law students.

Gay students are not, in fact, excluded from TWU, but the Court held that the Community Covenant in effect excludes gay students because it prevents them from living consistently with their identity. And, in an argument accepted by the court, LSUC and its supporters claimed that exclusion from the TWU law school amounts to exclusion from the legal profession. In the words of the LGBT law groups Out on Bay Street and OUTlaws, “The Covenant is not merely an expression of TWU’s beliefs. The Covenant is a document that discriminates against LGBTQ persons by forcing them to renounce their dignity and self-respect in order to obtain an education.”

Except that TWU’s law school is the only one with such a Community Covenant, and its morally conservative standards about sexuality, of course, apply only to its own law program and do not in any way constrain the admissions or retention standards of other law schools or the law profession generally. An applicant who decides he or she cannot attend TWU is in no way excluded from receiving a law education in Canada; TWU’s policies do not diminish the LGBT diversity of the Canadian legal profession. On the other hand, law society policies and court decisions that exclude TWU graduates from practicing law will diminish the (religious and moral) diversity of the Canadian legal profession. That’s because TWU’s law school will be the only professedly faith-based law school in the country, so that the exclusion of its graduates from the practice of the law in any province will leave the religious perspective underrepresented among Canadian lawyers.

The Ontario decision speaks strongly about the need to honor religious freedom and even stresses that religious freedom is institutional and not only individual, quoting from a Canadian Supreme Court decision: “the freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.” And yet the Ontario court fatally undermines that very freedom by wrongly presuming that to have a diverse legal profession, every law school must itself have a diverse admissions policy. The court has it backwards. For the legal profession to be diverse, law schools must be allowed to be different from each other.