Stanley Carlson-Thies, November 18, 2016

The British Columbia Court of Appeal has unanimously overturned the provincial law society’s decision that future graduates of the proposed Christian law school at Trinity Western University should not be admitted to the provincial bar due to TWU’s community covenant that restricts sex to man-woman marriage. The Nov. 1, 2016, decision is notable equally for vindicating TWU with its minority sexual convictions and for its reasoning about religious freedom in the context of LGBT protections.

Trinity Western University is an evangelical institution that does not exclude LGBT people but does require everyone to abide by a community covenant that asserts, as its biblically based conviction, that sexual activity is properly reserved to man-woman marriage. Its proposal to create the first Christian law school in Canada received the required official approval, but then the law societies of several provinces (equivalent to US state bar associations)—British Columbia, Ontario, and Nova Scotia—voted not to accept TWU graduates into the practice of the law in their respective provinces. The Nova Scotia decision was overturned in court. Courts in Ontario have upheld the exclusion there, a result which the Supreme Court of Canada has been asked to review.

Fifteen years ago, TWU won a Supreme Court victory in a similar case. Then it was the BC public school teachers’ association that had rejected graduates of TWU’s education program, again because of the community covenant. The teachers’ association claimed that, due to TWU’s religious sexual ethics, graduates of its program would likely be biased against LGBT students and thus unfit to teach in provincial schools. The Supreme Court noted that TWU was free under the law, as a independent religious educational institution, to maintain its views about marriage and human sexuality, no matter how unpopular these might be in the society, and that no evidence had been presented that any TWU education program graduate had shown bigotry toward LGBT students. The teachers’ association was required to accredit the TWU education degree.

The new complaint against TWU is somewhat different. The BC law society did not claim that TWU graduates would be bigoted—it did not find any such evidence. Instead, it claimed that TWU’s community covenant in effect barred the admission of LGBT students from the law school and thus illegally discriminated against them in their quest for a legal education. And it argued that it was illegal—against the public interest—for an accrediting entity like itself to give its sign of approval to a discriminatory institution by accepting its graduates into the profession.

The senior British Columbia court rejected these arguments, using reasoning that is itself notable. Of course, the US legal system is not identical to the Canadian, but there are sufficient similarities to make the BC reasoning illuminating also for the US context. Here are significant elements of the court argument.

• What is the exclusion harm in a pluralist society? The court asserted that the TWU covenant can be understood as exclusionary toward LGBT students: if they do not believe they can or should abide by the religiously based conduct requirements, then TWU’s orthodox Christian organizational identity is not the right educational setting for them (the school does not exclude LGBT students but requires all to abide by its conduct policy). However, that is not the same as saying that the TWU policy harms LGBT students desiring a legal education, because the other Canadian law schools have no similar community covenant. In fact, the court said, if the TWU law school opens, then LGBT students are more likely to be able to go to law school, because students with religiously-based orthodox sexual ethics who would otherwise compete to attend one of the other law schools will instead fill one of the 60 new student openings TWU will offer.

• Is government “approving” a independent entity by protecting its existence and distinctive operations? If the BC law society accepts TWU graduates, is it in fact sending the damaging signal that a body with official accreditation authority regards perceived anti-LGBT discrimination as acceptable? That cannot be a fair interpretation, the court held, for government routinely gives regulatory approval to businesses and nonprofits without thereby blessing all of the beliefs or actions of those organizations.

• Do citizens have a right not to be offended? The court said that, while many LGBT people may regard the TWU covenant to be discriminatory and hurtful, Canadians have no constitutional nor legal right “to be free from views that offend and contradict [their] strongly held beliefs,” unless those offensive beliefs are inciting actual harm.

• What is wrongful and illegal discrimination? The court affirmed that, although it would be illegal discrimination for a secular law school to have TWU’s community covenant, the law and constitution protect the freedom of TWU, as an independent faith-based educational institution, to have and to enforce the covenant.

• Is there a hierarchy of fundamental rights? When equality protections and religious freedom intersect, the court said, there cannot be an automatic victory for the former over the latter.

• What does pluralism require of a secular government? The fact that government must be secular, the court held, does not require—or permit—government policy that runs roughshod over the minority views and practices of religious organizations. Not at all:

“State neutrality is essential in a secular, pluralistic society. Canadian society is made up of diverse communities with disparate beliefs that cannot and need not be reconciled. While the state must adopt laws on some matters of social policy with which religious and other communities and individuals may disagree (such as enacting legislation recognizing same-sex marriage), it does so in the context of making room for diverse communities to hold and act on their beliefs.” [para. 185]

We might conclude from the BC court’s ruling and reasoning: when society is heterogeneous in basic convictions, only government action that protects the ability of diverse organizations to express those varied convictions can be counted as a policy that protects diversity.

The BC court decision in favor of the TWU law school has now been appealed to the Canadian Supreme Court, which is already weighing whether to accept an appeal of Ontario’s decision against the law school.