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A Win for LGBTQ Rights, or a Loss for Religious Freedom?

Supreme Court of Canada says law society acted reasonably in denying approval to proposed Christian law school with a code of conduct prohibiting same-sex sexual activity.

June 18, 2018
 
Trinity Western University president Bob Kuhn at Canada's Supreme Court

The Supreme Court of Canada ruled 7 to 2 Friday that a law society acted reasonably in denying accreditation to a proposed Christian law school because of its policy prohibiting students and faculty from “engaging in sexual intimacy that violates the sacredness of marriage between a man and a woman.”

A five-justice majority found that the decision by the Law Society of Upper Canada to deny accreditation to Trinity Western University’s proposed law school “represents a proportionate balance between the limitation on freedom of religion guaranteed” by the Canadian Charter of Rights and Freedoms “and the statutory objectives that the LSUC sought to pursue.”

"The LSUC’s enabling statute requires the Benchers [members of the governing board of the law society] to consider the overarching objective of protecting the public interest in determining whether a particular law school should be accredited. The LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest. The LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions," the majority wrote.

Two other justices upheld the LSUC’s decision to deny Trinity Western’s proposed law school accreditation, though they disagreed with some of the five-member majority’s reasoning.

The legal landscape in Canada differs from that of the U.S. However, the Trinity Western case addresses the same kinds of tensions between values of nondiscrimination and religious freedom that can be found at many Christian colleges in the U.S. that have similar codes of conduct prohibiting same-sex activity.

The LSUC, which recently changed its name to the Law Society of Ontario, celebrated the Supreme Court ruling as a vindication of its role in promoting equal access to legal education.

“We are particularly pleased that the court recognized that our statutory mandate to uphold the public interest includes promoting a diverse bar and ensuring that there are no inequitable barriers to those seeking access to the legal profession,” the law society’s treasurer, Paul Schabas, said in a written statement.

The Canadian Association of University Teachers also issued a statement welcoming the ruling. The association said in its statement that it had intervened in the appeals process to argue that the requirement that Trinity Western faculty subscribe to a statement of faith as a condition of employment violates academic freedom and inhibits the protection and promotion of diversity that should be expected in Canadian legal education.

“The majority of the Supreme Court accepted that there is a link between legal education and equality, diversity, and the competence of the legal profession,” said CAUT’s executive director, David Robinson. “This case underlines that it is vital that faculty and students not be constrained by any dogma or proscribed doctrine in any form, as this is the basis for promoting and protecting academic freedom.”

Trinity Western said in a statement it was disappointed in the ruling, which the university said “diminishes the value of pluralistic diversity in Canada.”

“In a very long complex ruling, with four sets of reasons, eight of nine judges agree that TWU’s religious freedom is violated but the majority still uphold the law societies' decision not to approve the law school,” the university said.

“The court ruling constrains TWU’s quest to establish a law school and offer 60 new law school seats to Canadian students.”

Trinity Western, which is located in British Columbia, first began attempting to establish a law school in 2012 but confronted opposition from the law societies in British Columbia and Ontario. The proposed law school was to offer a specialty program in charity law.

Two justices dissented in Friday's ruling, arguing that "the only proper purpose of an LSUC accreditation decision is to ensure that individual applicants are fit for licensing. Because there are no concerns relating to competence or conduct of prospective TWU graduates, the only defensible exercise of the LSUC's statutory discretion in this case would have been for it to approve TWU's proposed law school."

"Moreover, the decision not to accredit TWU's proposed law school is a profound interference with the TWU community's freedom of religion," the two dissenting justices wrote. "It interferes with that community's expression of religious belief through the practice of creating and adhering to a biblically grounded covenant. Even were the public interest to be understood broadly, accreditation of TWU's proposed law school would not be inconsistent with the LSUC's statutory mandate. In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference."

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