Friday, December 29, 2017

Trinity Western University at the Supreme Court of Canada

Earlier this month Trinity Western University (TWU) defended its mandatory, discriminatory Community Covenant before the Supreme Court of Canada. I am delighted I had the opportunity to witness the proceedings. I was surprised how few of the interactions were lost on me, given I have no legal knowledge or training.

In addition to the three primary parties (TWU, the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC)), there were 19 interveners, of which the Canadian Secular Alliance was one. The summary below is based on extensive notes I took during the two days of hearings. I have condensed the arguments but have maintained their fidelity to the best of my ability. They are grouped thematically below, rather than presented in strict chronological order.

Trinity Western University

From the outset, TWU framed the case as one of discrimination against evangelical Christians. A religious community must have the right to define itself, which includes religiously defined codes of conduct. As a private sectarian university, the Charter does not apply to TWU. Given that a legal finding of discrimination must be connected to a law, and nothing in the Covenant is contrary to any law, how can TWU be guilty of discrimination?

The one question to be resolved, TWU argued, is whether graduates of TWU's proposed law school would meet the qualifications of the bar. Since none of the parties in the appeal claim TWU graduates would be unqualified, the answer is clear.

Some Justices challenged the notion that the case was only about the quality of graduates. The Covenant is mandatory for all students, so homosexuals must either hide their orientation while attending TWU (with all the damage such a choice would entail) or not attend. So the question becomes, to what extent can religious freedom be used to justify harm to others in society?

One Justice proposed a hypothetical male-only law school, where barring females was based on sincere religious beliefs. Other judges had difficulty accepting the notion that law societies should be forced to accept its graduates.

The second major tack taken by TWU was that the law societies didn't have the legal authority to deny TWU accreditation, for four reasons:
  1. The law societies agreed to a federated model, and thus are bound by those terms. When Trinity Western University passed all requirements demanded by this model, provincial law societies were legally bound to also accept its graduates as lawyers. No one has suggested graduates of TWU would be anything other than fine upstanding professional lawyers.
  2. Though the law societies are mandated to serve the "public interest", in the legislation this is a subordinate clause and cannot stand on its own. Thus it cannot serve as the sole justification for denying recognition to TWU graduates. 
  3. The Law Society of Upper Canada's decision not to recognize TWU graduates was the result of a vote of its members, so did not come with an official rationale. But by looking at the speeches made prior to the vote, it is clear they did not properly consider reasonable accommodation of religious beliefs, as previous Supreme Court rulings demand. Therefore the result must be set aside, and TWU graduates must be allowed to practice in Ontario. (The Justices challenged only small parts of this argument, but did not seem convinced. They noted the Superior Court of Ontario decision examined the process in considerable detail, and found it to be fair and implemented in an unbiased manner.)
  4. Denying accreditation to TWU violates the rights of future graduates. Granting accreditation to TWU violates no one's rights. Therefore it is clear that the law societies erred. 
There was considerable back and forth between the judges and TWU on the extent to which law societies can give a broad interpretation to the "public interest" aspect of their mandate. TWU argued that the public interest is defined in the legislation, and additional factors cannot be arbitrarily added. The Justices challenged this on several levels. They sought clarification several times on the rationale for why the law societies do not have the authority to give broad meaning to "public interest". The TWU lawyer had to agree that if a law school had a policy - like Bob Jones University in the United States - that banned interracial couples, law societies could say nothing on the matter (though it wasn't the issue before the court).

The function of law societies, TWU claimed, is to determine who is admitted to the bar. Their authority starts with graduates. The law societies have no say over TWU or its law school. TWU's Covenant is entirely lawful, so it cannot be a justification for provincial law societies denying accreditation. The only valid reason not to accredit TWU's law school would be if doing so would harm the profession. There is no evidence of harm, for example, from existing TWU teachers college graduates behaving badly in schools across Canada. The religious do not have a positive right to go to a sectarian law school, but they do have the right not to have that option taken away from them.

TWU made a few arguments that were rejected outright.

TWU claimed that LGBT students argued they are merely "hurt" by the Covenant, which is significantly outweighed by an actual breach of the Charter right of freedom of religion. The Justices questioned the contention that barring a married couple from sexual intimacy for three years is equivalent to hurt feelings.

The judges were unimpressed with the argument that for every Christian who goes to TWU, one seat is available at another institution for LGBT students.

All unmarried students are treated equally, TWU pointed out, and the only distinction between straight and LGBT couples is within marriage, so the number of people affected by the Covenant was very small. Numbers matter, and with only 60 seats out of 2500, TWU would represent less than 2.5% of Canadian law students. One judge immediately asked, "What if only a small number of blacks were excluded? Do small numbers mean it's not important?" Another answered, "One is too many." TWU's attempt to pivot the discussion to respecting religious minorities was met with a withering response: "To the extent it doesn't harm other values. What is the harm to the TWU community in having some TWU law school students engage in other sexual practices? Don't drink, don't slander, defend academic integrity, prohibitions on sexual conduct - one of these is not like the others. One of these is protected by the Charter."

Law Society of Upper Canada 

The Law Society of Upper Canada turned the tables on TWU by claiming that imposing evangelical Christian practices on others is the only infringement to be considered in this case. TWU's admissions policy, through the mandatory nature of the Covenant, effectively imposes religious beliefs on others, or forces them to renege their identity. The Covenant demands that graduates be ambassadors of TWU - and how is that possible for a Jew or atheist?

LSUC acknowledged that as a private university, TWU does not have to follow the Charter, and that it is exempt from human rights legislation in British Columbia. However, LSUC is bound by the Charter's anti-discrimination provisions; it cannot outsource discrimination to a third party and remain in compliance with its Charter obligations. Accrediting TWU would effectively obstruct access to the legal profession through discrimination. The judges were sympathetic to these "laudable goals", but questioned whether LSUC exceeded the considerable powers granted to it via legislation, and challenged LSUC on its broad interpretation of "public interest".

The judges asked LSUC why they broke with the federated model of accreditation. A graduate from TWU might be talented and become a great contributor to the legal profession, the judges noted, but would have no path to practice law in BC and Ontario if the decisions of the law societies stood. LSUC countered that it might develop a procedure whereby individuals could apply to LSUC for accreditation. It acknowledged that no such process currently exists, but that its lack couldn't be held against it as no one had asked it to create one.

Law Society of British Columbia

LSBC argued that this issue cuts across the country, and affects the administration of justice nationwide. There is therefore a need for a consistent answer to apply across the country - having different approaches in different jurisdictions would be problematic.

LSBC agreed that its decision does constitute an infringement of religious freedom under the Charter; however, the LSBC decision has no effect on anyone's ability to hold, practice, or express their beliefs. When compared to the enormous impact of perpetuating the discrimination and stereotyping that the LGBT community has suffered, any infringement on TWU graduates is minimal.


Several interveners emphasized that accreditation does not amount to endorsement. That is, having the law societies accredit TWU does not mean that they necessarily approve of every policy of the school, including the Covenant. Nursing homes, soup kitchens, and even corporations all need government regulation or approval or licenses, the granting of which does not imply governmental approval of their views. To claim otherwise is to put every form of government speech - from the registration of trademarks and copyrights to the issuing of drivers licenses - subject to judicial review.

Other interveners focused on how we resolve disputes in society. A pluralistic society is about celebrating differences and accommodating minorities (such as evangelical Christians). If we subject ourselves to the tyranny of the majority, we would lose our treasured Canadian mosaic. Law societies do not have the power to force TWU to comply with their beliefs about same sex marriage. We can disagree about what is moral and still live in peace.  The Court has an opportunity to destroy or affirm pluralism - "If ever there was a time the Court needed to protect religious minorities, that time is now."

One intervener claimed that TWU was the victim of discrimination, not members of the LGBT community. A law school exclusively for women, or reserving seats in a law school in Northern Ontario for aboriginal students, would be protected by section 15 of the Charter (equal protection under the law), whereas a law school restricting the number of black students would be forbidden. Rejecting TWU is analogous to rejecting a law school with dedicated seats for female or aboriginal students.

Three LGBT groups focused on the significant harms resulting from institutionally sanctioned homophobia in the form of the mandatory Covenant: social exclusion, harassment, abuse, and violence. Avoiding these repercussions by hiding who you are is an unacceptable cost; "separate but equal" law schools is no answer. The judges were sharply critical of some of these groups for criticizing lower court decisions and focusing on points of fact instead of law.

The West Coast League disparaged the discredited separate but equal doctrine, stating that equality is not a numbers game - it doesn't matter if one or two hundred seats in the country are awarded on a discriminatory basis. The League also noted that the Covenant implicitly includes a prohibition on abortion. Dignity and the right to make fundamental personal decisions must be incorporated into the analysis.

Another intervener argued that the public interest demands a legal profession that is diverse and inclusive. One major problem with the Covenant is that it is asymmetrical - all those who sign the Covenant could go elsewhere, but those that can't sign in good faith are barred from TWU.

The Canadian Barristers Association claimed that TWU has already been recognized and accommodated, including a special provision in British Columbia's human rights legislation that permits it to engage in exclusionary, discriminatory behaviour that would otherwise be prohibited. But TWU wants more: tangible additional support for its law school through accreditation. Canada can tolerate the views held by TWU, but should not support them. The government has a strong interest in limiting discrimination against LGBT community.

The Canadian Civil Liberties Association added the dimension of privacy to the deliberation, quoting former Prime Minister Pierre Trudeau: "The state has no place in the bedrooms of the nation." The CCLA made two additional points. 1) Reporting on misconduct is encouraged during one's tenure at TWU. 2) Given the university's stated mission to have students commit to a future Christian lifestyle, the terms of admission to TWU clearly apply post-graduation as well.

Two interveners gave different perspectives on secularism. The Canadian Secular Alliance noted TWU is open to students of all faiths and those with none, who are able to hold and express beliefs contrary to the teachings of evangelical Christianity (including about same sex marriage). As the Covenant forces the minority of students who are not evangelical Christians to nonetheless obey its strictures, TWU clearly meets the definition of religious coercion. The Charter protects the freedom to hold and manifest sincerely held beliefs, but not to require others to do so. The Faith and Freedom Alliance, in contrast, argued that secularism entails respect for religious differences, not extinguishing them. Prioritizing rights - such as placing equality or non-discrimination above religious freedom - is not good for democracy. The state, through the provincial law societies, should be neutral intermediaries. Denying accreditation sends a message that religious beliefs are not welcome in the public square, which could lead to religious suppression.

The United Church of Canada argued that humans rights are reserved for humans, not organizations or corporations. Religious beliefs in general are almost unlimited, and practices must be restricted if they harm others. Compelled ideological conformity is a line that should not be crossed. The state does not need to protect people from exposure to different views.

The Advocates Society argued that the statutory mandate of the law societies, human rights legislation, and Charter considerations all prohibit provincial law societies from accrediting TWU. Merit should determine who gets into law school; who one sleeps with should not.

Closing Arguments

The Law Society of Upper Canada argued that it would be prohibited from having a Covenant like TWU's, and cannot look the other way when others violate equality rights. Evangelical Christians have rights, but the law society cannot ignore TWU's discriminatory policies. LSUC was entitled to conclude that its decision was an example of minimal impairment and proportionate balancing.

TWU's closing submission noted that the only way for an individual to practice law is to graduate from an accredited institution. TWU is a voluntary religious like-minded community, and is not intended for those with fundamentally different views. TWU is not for everyone, but on the other hand no one is forced to attend.

The last word of the proceedings was given to the Law Society of British Columbia. It argued that this case was not about LSBC condoning, endorsing, or approving discrimination in TWU's admission policy; LSBC simply applied its mandate, acting in the public interest, balancing competing rights in a proportionate manner. Its final request was for the Court to produce a judgment that would apply across the country, obviating the need for special admission procedures in other jurisdictions.

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