Updated: August 15, 2018

Published: July 31, 2018

Stanley Carlson-Thies

Update on August 15: In the wake of the adverse Canadian Supreme Court decisions, the Board of Governors of Trinity Western University decided to make adherence to the Community Covenant voluntary for students, as of the 2018-19 academic year.

In a momentous set of rulings on June 15, 2018, the Supreme Court of Canada upheld the decisions of two provincial law societies not to accredit the Christian law school that Trinity Western University, the evangelical university in British Columbia, seeks to create. Students at the proposed law school would have to abide by a Community Covenant Agreement that includes the restriction of sex to traditional marriage, among other Christian standards.

Endorsing such a law school, the two law societies claimed, would violate the public interest they are required to uphold. The law school would not be a hospitable place for LGBT students, said the law societies, so that accrediting it would violate equality values and the imperative of promoting diversity in the law profession. Although almost all of the Supreme Court justices agreed that it would be a blow to TWU’s religious freedom rights for its law school not to be accredited by these provincial law societies, the Court upheld the denials in order to promote equality and diversity.

Ironically, the outcome of the decision leads to less equality and diversity. The TWU law school would be the only Christian law school in Canada — the single place where law students could receive a distinctly Christian perspective on the law in an environment shaped by those Christian commitments. Creation of the TWU law school would add to the diversity of views in Canadian legal discourse and among Canadian lawyers. The new law school would give prospective law students an additional choice of where to study. It would have elevated a minority voice and religious community in public discussion.

The views reflected in TWU’s Community Covenant Agreement — particular religious convictions including a biblical view of human sexuality and marriage — are protected under the Canadian Charter of Rights and Freedoms and in federal and provincial law. A Supreme Court that respects religious freedom and pluralism would not allow accrediting agencies, acting with government authority, to exclude these views and the proposed legal education based on them. Respect both for conservative religious voices and for LGBT law students required a different decision: support for, rather than a narrowing, of a diversity of law schools. Commentators are rightly worried that the Canadian Supreme Court has redefined pluralism in a way that undermines institutional freedom and limits religious exercise to houses of worship and private life.

Trinity Western has been working since 2012 to gain legal approval to launch its law school. The school would be Canada’s first Christian law school, stressing study of the laws governing nonprofits, emphasizing the duty of the law and lawyers to bring justice to the underserved, and providing its training without any government subsidy. From the start, the requirement that law students would have to abide by TWU’s Community Covenant Agreement has drawn fire.

Nevertheless, the Federation of the Law Societies of Canada, the overall accrediting body, approved the planned law school in 2013, and the province of British Columbia gave its approval, as well. However, the planned school faced increasing opposition due to its purportedly discriminatory policies. As a result, while some of the provincial bar societies accepted the school’s accreditation, several declared that they would not. This provoked a series of court cases, and then the appeal of the British Columbia and Upper Canada (Ontario) accreditation disputes landed in the Supreme Court.

Trinity Western University, a private institution, is legally permitted under the Canadian Charter of Rights and Freedoms and the British Columbia Human Rights Code to maintain its Community Covenant Agreement as a set of requirements. These requirements for students, staff, and faculty include religious commitments and the obligation to “treat all persons with respect and dignity” as well as sexual conduct standards. When, two decades ago, the British Columbia accreditor for public school teachers sought to withdraw accreditation of TWU’s education program because it allegedly produced biased teachers (although no teachers had been accused of bias), the Supreme Court backed TWU. The Court stressed that, as a private religious institution, TWU had the Charter right to require adherence to its religious beliefs and standards. The Court made this significant statement: “The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”

The Court has now reversed this vital understanding of what religious freedom entails and what it means for a government to respect the diverse convictions held by citizens. The Court held then that, while the British Columbia teacher education accreditor could take action against a teacher training program whose graduates were abusive to LGBT students, it could not oppose TWU’s program simply because the TWU program held different moral values and religious convictions than the accreditor favored or that were required of the government itself. The Court also held that, in a diverse country, the public interest requires the government to safeguard the freedom of communities with various religions and values to live and to operate institutions in a manner that is consistent with their respective convictions.

Two decades later, faced with a similar controversy, the Supreme Court of Canada has decided that an accrediting agency may impose its moral preferences on a private institution, that the public interest requires the government to limit the unpopular views of religious communities instead of protecting them, and that a hypothetical LGBT applicant’s desire to attend the TWU law school without abiding by the Community Covenant Agreement must take precedence over TWU’s desire to maintain its religious standards.

The British Columbia case is the case treated most extensively by the Court. The dissenting opinion by two justices, Justice Côté and Justice Brown, is devastating. The dissenters say that the provincial law societies are not even authorized by law to decide on the accreditation of the proposed TWU law school. These law societies are limited to deciding whether applicants are fit to practice law in their respective provinces, not whether a law society approves of a law school itself — and none of the law societies have alleged that other graduates of TWU mistreat LGBT people. The dissenting justices acknowledge that an LGBT student confronted with TWU’s Community Covenant Agreement might indeed consider it a wrongful religious imposition — but, of course, no one is forced to choose this law school.

How do the law societies justify their refusal to accredit? According to the dissenting opinion, the Court majority has created a malleable Charter “equality value” — a sense of what progressive society requires — which it holds must override the actual, specific, written Charter right to religious freedom which TWU is acknowledged to have. Moreover, the Court majority even creates its own view of what a religious school ought to require to justify dismissing TWU’s stated views. The majority claims that the British Columbia law society’s denial of accreditation “did not limit religious freedom to a significant extent because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for their spiritual growth.”

The dissenting opinion rightly stresses that the law societies were simply wrong when they asserted that accrediting TWU’s law school would implicate them, as accreditors, and the government, as the body which gave them this quasi-public responsibility, as holding TWU’s views about religion and human sexuality. The opinion says that, in accrediting the law school, the law societies and the government would only be accepting that its graduates had been adequately prepared for their law careers while — as the Charter requires — accommodating “the TWU community’s right to religious freedom.” Law societies should deal directly with any biased lawyer or applicant for the bar.

Thus, the dissenting justices rightly conclude that the two law societies in their opposition to TWU, and the Court in approving of their decisions not to accredit, got the fundamental issue exactly wrong. What the public interest requires is precisely not to coerce private organizations to abandon their minority convictions and adopt those of the government or the majority. As the dissent states:

Accommodating religious diversity is in “the public interest” broadly understood… It is… not open to the state to impose values that it deems to be “shared” upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values. By accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians.

Yet, in its decision, the Supreme Court of Canada instead decided to ratify the BC and Ontario law societies’ imposition of their own prefered moral values on the divergent values of Trinity Western University. This is the opposite of civic pluralism and of government neutrality in the circumstance of religious diversity.

Barry Bussey, legal counsel for the Canadian Council of Christian Charities and a leading defender of institutional religious freedom in Canada, points out that, just a few weeks earlier, in a case involving the Jehovah’s Witnesses, the Supreme Court strongly held that courts must stay out of the internal religious decisions of churches. Why such a different stance with regard to TWU’s proposed law school? It is, Bussey suggests, because while a church can be treated as a private institution whose internal operations need not be of great concern to others, a law school or hospital or other charity is public-facing and community-serving. The Canadian elite and legal authorities have now decided that persons and organizations operating in public life should be required to follow the majority’s norms. Religious freedom is effectively privatized.

Fortunately, the Canadian Supreme Court’s decision is not the final word on the TWU law school. Law societies are not forbidden to recognize TWU law graduates; although the British Columbia government withdrew its approval of the law school after the BC law society voted against accreditation, another province could authorize creation of the new law school. Alternatively, the law school could operate without accreditation, with its graduates making individual appeals to law societies to accept their degree, just as graduates from law schools in other countries have to do.

At the least, however, these are tall barriers placed in the way of a private Canadian educational institution seeking simply to educate its students according to its religious convictions and in an environment consistent with those convictions. Nor are they necessary barriers: in a pluralist system, prospective students would have a choice between a secular legal education and a Christian legal education, between a libertine campus environment and one shaped by conservative religious values. The Supreme Court should have followed the precedent of its 2001 TWU decision decision, which protected, rather than denied, the university’s freedom to maintain its religious standards in its teacher education program. Protecting the ability of religious higher education, and other civil society institutions, to offer distinctive environments and programs, within a setting of many other options for students and prospective faculty, is the best, the only lasting, way for government to respect the varying convictions of its diverse citizens.