An evangelical Christian university received a bracing dose of postmodern reality June 15 when the Supreme Court of Canada sided with regional law societies who objected to a proposed law school for Trinity Western University in Langley, British Columbia.
In a 7-2 decision, the Supreme Court said Trinity’s “community covenant,” an agreement governing student behavior, would discriminate against LGBTQ individuals whose actions would fall outside the school’s regulations, which limit sexual intimacy to married, heterosexual partners. (The Supreme Court heard cases involving the Law Society of British Columbia and the Law Society of Upper Canada. Both decisions were virtually identical in their conclusions.)
The law societies—the equivalent of bar associations in the United States—are tasked with licensing attorneys to practice in their respective provinces. Because Trinity’s regulations would ostensibly bar sexually active gay students from the law school, the law societies argued Trinity was discriminating against such persons, and refused to grant accreditation to the proposed law school. In turn, Trinity said it had the right to uphold its faith-based principles.
Ironically, the Supreme Court of Canada ruled in exactly the opposite manner some 17 years earlier. In a 2001 case, Trinity Western University v. British Columbia College of Teachers, the court held the British Columbia teacher’s group “acted on the basis of irrelevant considerations” when it said it wouldn’t license Trinity educational program graduates as teachers. The teacher’s group said Trinity’s standards were discriminatory, something a majority of that 2001 court dismissed.
In 2005, four years after the 2001 case, Canada legalized same-sex marriage. The country has prohibited discrimination on the basis of gender identity or gender expression since 2017.
No evidence was presented that Trinity’s behavioral code would produce law school graduates who would discriminate against anyone. Nevertheless, Canada’s highest court has apparently decided to limit the scope of that nation’s religious freedom as established under Section 2 of the nation’s Charter of Rights and Freedoms.
According to Section 2,
Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
The June 15 Supreme Court of Canada majority, however, declared,
Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage. In this case, the effect of the mandatory [Trinity Western University Community] Covenant is to restrict the conduct of others.
Further, the court majority suggested that requiring students to adhere to a code of conduct founded on Christian teaching can be damaging:
The [Law Society of British Columbia’s] decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education.
According to a list of schools teaching common law in Canada found on Wikipedia, however, there are at least three Universities in British Columbia—in Kamloops, Vancouver, and Victoria—offering the same Juris Doctor degree proposed for Trinity’s law school. This would appear to make it difficult to imagine any prospective student, regardless of sexual orientation, believing “they have no choice but to attend” Trinity’s program.
Attorney Barry W. Bussey, a Seventh-day Adventist who is director of legal affairs for the Canadian Council of Christian Charities called the verdict “a devastating decision to religious freedom.” Bussey was one of several attorneys supporting Trinity in its appeal of two lower court rulings, and the Seventh-day Adventist Church in Canada was an “intervener” in the case, which means it filed a brief, called a factum, before the court.