Saturday, July 21, 2018

The Supreme Court rules: Discrimination is not a protected religious right

On June 15, 2018 the Supreme Court of Canada published its decisions about the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC) refusing to recognize graduates of Trinity Western University's (TWU) proposed law school. Graduates from TWU would not be able to practice law in those provinces. (See my previous essays on TWU's Community Covenant, the Ontario Court of Appeal TWU ruling, an analysis of the issues raised by the case prior to the Supreme Court hearing, and a summary of the arguments made at the Supreme Court.)

Summary of the Rulings

The structure and arguments in both the Law Society of British Columbia (LSBC) v. TWU and TWU v. the Law Society of Upper Canada (LSUC) rulings were substantially the same, though some of the details varied. Together the judgments run to over 250 pages, so any synopsis will inevitably leave out some important details.

In essence, the Court considered the following (P# refers to the paragraph number of the relevant decision):
  1. Under the relevant provincial legislation, were the law societies permitted to consider TWU's Covenant when deciding whether to grant accreditation to its graduates? If not, the law societies must recognize TWU graduates as no other reasons were given to deny accreditation.

    A majority ruled that the "public interest" provisions of the law societies' enabling statutes meant they acted within their mandate. (Two dissenting judges vehemently disagree with this conclusion.)
  2. Given this, were the decisions of the law societies reasonable and proportionate? If not, the Court could overturn them.

    The majority noted that "the law society’s interpretation of the public interest is owed deference" (LSBC, P38), meaning the bar was high to second guess the conclusions reached by the law societies. The Court found no egregious behaviour on the part of the law societies, both in terms of the procedure followed to reach their conclusions and in the quality of their deliberations.
  3. Were Charter rights of TWU students violated? If not, since the decisions of the law societies were reasonable, the case would end there.

    The Court found that the law societies' decisions not to accredit TWU were "a limitation on the right of TWU’s community members to enhance their spiritual development" (LSBC, P75), and thus their right to freedom of religion was infringed.
  4. Is the infringement in this case justifiable?

    The majority decided that yes, the infringement was justified, for the following reasons:

    "LSBC’s decision did not limit religious freedom to a significant extent." (LSBC, P85) 

    "Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people." (LSBC, P95)

    In other words, the impact of the law societies' decision on TWU students' religious freedom in minimal, whereas the impact of accrediting TWU would be significant on LGBTQ individuals across the country. 

Analysis of the eight rulings

The decisions were not unanimous. In both cases, five Justices wrote the majority ruling, the Chief Justice provided her own reasons for a concurring opinion, as did Justice Malcolm Rowe. Two Justices wrote a dissenting opinion. Thus there were a total of eight rulings. The logic and arguments were very similar in both cases, however, so below I have merged the reasons for both.

Majority Ruling

The summary above reflects the findings of the five Justices. They determined that the infringement on freedom of religion was minimal because the "decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant" and "attending a Christian law school is preferred, not necessary, for prospective TWU law students." (LSUC P38)

LSUC determined "that TWU’s community members cannot impose those religious beliefs on fellow law students" and that its obligation to protect the public interest "mandates access to law schools based on merit and diversity, rather than exclusionary religious practices." (LSUC P41)

The majority was quite concerned about protecting diversity in the legal profession, writing, "The LSBC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar." (LSBC P39) and "A diverse bar is a more competent bar." (LSBC P43)

One item I found potentially troubling in the majority ruling was, "It is unnecessary to determine whether TWU, as an institution, possesses rights under s. 2(a) of the Charter." (LSBC P61) While the Court did not accept TWU's argument that it, as an institution, has freedom of religion, it left the door open for such a finding in the future. I much prefer Rowe's interpretation of religious freedom (see below).

I was delighted to see the the majority explicitly endorsed a principle I have long held, but that is often publicly rejected by many, including several prominent politicians: "that freedom of religion includes freedom from religion." (LSBC P101). Accepting this premise leads inevitably to ruling in favour of the law societies, once the Court acknowledged that "The effect of the mandatory Covenant is to restrict the conduct of others." (LSBC P99)

Chief Justice

The Chief Justice found that, contrary to the majority opinion, the "negative impacts of the LSBC’s denial of accreditation on the religious, expressive and associational rights of the TWU community are not of minor significance." (LSBC, P145) She also found that "LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students — heterosexual students can choose from all law schools without discrimination, while one law school, the TWU law school, would only be available to LGBTQ students willing to endure discrimination." (LSBC, P138)

The Law Society of British Columbia decided "the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion." (LSBC P146)

On balance, she "cannot conclude that the decision of the LSBC was unreasonable." (LSBC, P148)

Justice Malcolm Rowe

Justice Rowe, while concurring overall with the majority, differed in his reasons on several salient points. I found myself agreeing with almost everything in his opinions, and hope that his perspective becomes pervasive within the Court in the years to come.

There is an odd convention in our society that whereas most ideas are open to vigorous challenge, if one defends an otherwise ludicrous proposition with the statement, "This is a part of my religious tradition," it becomes an invalid topic for criticism. Thus I was very happy to read (LSBC, P160) that Rowe believes that "The fact that the Covenant is a statement of religious rules and principles does not insulate it from such scrutiny." As the Canadian Secular Alliance states in its policy position on Canada's blasphemy law: "People deserve protection from harm; ideas do not warrant protection from criticism."

Rowe gently chides his colleagues for finding Charter infringements too readily. Doing so "erodes the seriousness of finding Charter violations" and "distorts the proper relationship between the branches of government by unduly expanding the policy making role of the judiciary." (LSBC P192) He notes that "The decision of the LSBC does not interfere with the claimants’ freedom to believe that sexual intimacy outside heterosexual marriage “violates the sacredness of marriage between a man and a woman”" (LSBC P226) and "the LSBC does not interfere with the claimants’ ability to act in accordance with their beliefs about sexual intimacy." Thus he differs from the majority and finds "the alleged infringement does not fall within the scope of freedom of religion." (LSBC P210)

One of the most significant statements by Rowe (LSBC P219) is that "religious freedom is premised on the personal volition of individual believers. [...] I would decline to find that TWU, as an institution, possesses rights under s. 2(a)." "While s. 2(a) recognizes the communal aspects of religion, its protection remains predicated on the exercise of free will by individuals". (LSBC P220)

This is exactly the correct stance to take, and I am glad at least one Justice was willing to commit to it, despite the majority declining to comment.

The crux of Rowe's reasoning, however, is that "TWU, by virtue of its enabling statute, literally is for everyone" (LSBC P241) and therefore "its admissions policy [can]not be restricted to Christian students." (LSBC P240) But TWU students "seek the protection of s. 2(a) for their effort to ensure that all students attending TWU abide by these beliefs — regardless of whether they personally share them." (LSBC P237) But Rowe "can find no decision by this Court to the effect that s. 2(a) protects such a right to impose adherence to religious practices on those who do not voluntarily adhere thereto." (LSBC 242)

Rowe concludes that the Charter "does not protect measures by which an individual or a faith community seeks to impose adherence to their religious beliefs or practices on others who do not share their underlying faith." (LSBC P251) And he quotes the submission made by the Canadian Secular Alliance, writing "I agree that “a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice”". (LSBC P251) How flattering to have part of our submission incorporated into the published opinion of a Supreme Court Justice!

Dissent

I found much of the dissenting rulings troubling. Referring to evangelical Christians, Justices Côté and Brown claim in their second paragraph that LSBC "has effectively denied that access to a segment of Canadian society". (LSUC P261) This is factually incorrect. Evangelical Christians can and do attend law schools across the country, and many (perhaps all) Canadian law schools have Christian student groups in which they can participate. The decision not to recognize TWU graduates in no way prevents an evangelical Christian from getting a legal education or pursuing a law career in Canada.

"The LSBC’s decision is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality. It is substantively coercive in nature." (LSBC summary) It is disturbing to have Supreme Court Justices arguing that any action preventing or mitigating coercive practices is inherently coercive, even if it is a minority perspective. If we accept this premise, then (according to Côté and Brown) government neutrality in religious affairs mandates an acceptance of religious bigotry. I reject this view.

The dissenting judges are adamant that "The only proper purpose of a Law Society of Upper Canada (“LSUC”) accreditation decision is to ensure that individual applicants who are graduates of the applicant institution are fit for licensing." (LSUC P57) They state this premise, in various forms, many times across the two rulings:

  • "Law school accreditation, properly understood, only acts as a proxy for ascertaining whether graduates from that school are presumptively fit for licensing." (LSUC P67) 
  • "the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession" (LSBC P267)
  • "the only proper purpose of an approval decision by the LSBC is to ensure that individual licensing applicants are fit for licensing." (LSBC P273)
  • "It is readily apparent that the approval of law faculties is tied to the purpose of assessing the fitness of an individual applicant for licensing." LSBC P280)
  • "The LSBC’s object, duties and powers are, in short, limited to regulating the legal profession, starting at (but not before) the licensing process" (LSBC P284) 
  • LSBC's "statutory mandate empowers it to control the doorway to the profession, not to decide who knocks on the door." (LSBC P290)
  • "justification in this case requires evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law." (LSBC 321)
  • "the only proper purpose of a law faculty approval decision is to ensure the fitness of individual graduates" (LSBC 341)
  • "Whether or not law schools have themselves selected the “best of the best” has no bearing on the LSBC’s task of determining who is fit to practise law in British Columbia." (LSBC P289)

The other Justices are clear that the delineation of the law societies' authority rests, barring exceptional circumstances, with the law societies themselves: the majority writes "the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference" (LSBC P34), the Chief Justice states "Where legislatures delegate regulation of the legal profession to a law society, the law society’s interpretation of the public interest is owed deference." (LSBC P110), and Justice Rowe concurs that "As this Court has affirmed on numerous occasions, deference is called for when courts review the decisions of law societies as they self regulate in the public interest". (LSBC P155) Yet Côté and Brown flatly assert that "approving TWU’s proposed law school was not against the public interest", (LSBC P323) overruling LSBC and contradicting the other seven Justices and their cited precedents.

The implication is that pubic interest, according to Côté and Brown, is defined by competent graduates, with no weight given to diversity, excellence, or exclusion of non-favoured groups. Presumably, a religiously based law school that admitted only heterosexual Christian white men would be fine with these two Justices so long as each individual graduate was minimally capable at the practice of law.

There were aspects of the dissenting opinion that I agreed with. It succinctly and accurately states the secularist position in the LSBC summary: "State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief." Côté and Brown also defend this premise: "state neutrality must prevail." They are correct in noting "secularism connotes pluralism and respect for diversity", "guarantees an inclusive public square by neither privileging nor silencing any single view", (LSBC 332), "the secular state is a neutral state" (LSBC 332) and reiterate that "state neutrality must prevail." (LSBC 333)

Yet within a single paragraph (LSUC P81), Côté and Brown take a reasonable premise - "the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom" - and use it to leap to an untenable conclusion: "The unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom, which freedom allows religious communities to flourish and thereby promotes diversity and pluralism in the public life of our communities." Côté and Brown use the rhetoric of secularism to arrive at distinctly anti-secular conclusions.

Côté and Brown employ a similar rhetorical device elsewhere: "Tolerance and accommodation of difference serve the public interest and foster pluralism. Acceptance by the LSBC of the unequal access effected by the Covenant would signify the accommodation of difference and of the TWU community’s right to religious freedom, and not condonation of discrimination against LGBTQ persons." (LSBC P269) This is exactly backwards - religious freedom is so important, imply the judges, that the impact on the LGBT students who are discriminated against is irrelevant. The majority considered, and rightly rejected, this argument.

The dissenting judges repeatedly use the language of secularism to condone discrimination (LSBC, P268): "The decision not to approve TWU’s proposed law faculty because of the restrictions contained in the Covenant [...] is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality." Essentially, these Justices argue, any and all restrictions placed on LGBT students by TWU are fine in the service of defending the intolerance of evangelical Christians.

If this argument were to be found persuasive, a future religiously based law school could restrict access to right-handed people only, citing scripture (e.g., Genesis 48:13-18, Galatians 2:9). (Or, to follow TWU's operating model, left-handed people would be welcome to attend, so long as they performed all activities, on campus and off, in a right-handed manner.) The dissenting judges repeatedly invoke the concepts of neutrality, pluralism, and respect, which I support. These words clearly do not mean the same things to them as they do to me.

The two dissenting judges invert the intent the Canadian Secular Alliance's own metaphor (without a citation) to defend their position: "Equating recognition of a private actor as condonation of its beliefs turns the protective shield of the Charter into a sword." (LSUC P75) They use similar language in LSBC P338: "Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors." I do not understand how Côté and Brown can observe TWU's blatantly discriminatory behaviour alongside LSBC's and LSUC's attempts to mitigate its impact, and conclude that the TWU community is the injured party.

Côté and Brown also engage in misdirection, which is worrying behaviour for Supreme Court Justices. They accurately state that LSBC's governing statute "does not grant the LSBC authority to regulate law schools." (LSBC P282). However, that's not what LSBC is doing. As the majority explicitly stated, "That the LSBC considered TWU’s admissions policies in deciding whether to approve its proposed law school does not amount to the LSBC regulating law schools".  (LSBC P45) It is unclear why Côté and Brown ignored their peers on this matter.

Like the majority ruling, the dissenting judges do not state whether institutions have religious rights: "it may not be necessary to determine whether TWU, qua institution, enjoys a right to religious freedom in its own right". (LSBC P315) They are clearly sympathetic to such a view, however - the section in which this sentence appears is entitled, "The LSBC Benchers’ Decision Is an Infringement of TWU’s Section 2(a) Charter Rights", which clearly implies it is the school, and not its current or prospective students, that have rights. They hint as this again in LSBC P324 when they condemn this "highly intrusive conduct by a state actor into the religious practices of the TWU community." I cannot determine whether, in this sentence, Côté and Brown are defending the rights of individuals, a community, or an institution.

In their opinion only "evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law" (LSBC P321) could justify LSBC not accrediting TWU's law school, which is a very narrow view. But no one - not LSBC, nor LSUC, nor any of the 19 interveners - claimed that future graduates would be unfit to practise law. The Justices are surely aware of this, and thus are here making a token effort to appear reasonable by providing the grounds on which they might have ruled differently - knowing full well that no one is making such an argument. This strikes me as disingenuous - unbecoming behaviour from two Supreme Court judges.

The problem is that TWU's main argument - studying in an enforced evangelical Christian environment is simply an aspect of freedom of religion - is belied by the fact that TWU itself affirms that non-Christians are welcome to attend TWU and vociferously dispute any and all Christian theological, ethical, and religious precepts. That people experiencing sexual intimacy with their spouses in the privacy of their homes threatens the fragile fabric of the TWU Christian community, while a TWU student loudly proclaiming that Vishnu or Jehovah or Allah is a true Deity, and that Jesus is a myth, is entirely permissible, highlights to me that the Covenant is about enforcing parochial taboos and has little to do with religious rights.

Freedom of religion does not include the right to compel or forbid the actions of others.

What happens next?

TWU has decided to postpone the opening of its law school as it reviews the decision. As the objections of the two law societies focused on the mandatory nature of TWU's Community Covenant (which was upheld by all seven judges ruling in their favour), as I see it Trinity Western has three options from this point:

  1. Do not open a law school.
  2. Remove the clauses forbidding sexual intimacy between same-sex spouses from the Community Covenant.
  3. Make signing the Community Covenant optional instead of mandatory.

It is important to note that no one objected to the founding of a Christian law school per se. The issue is the dual claim of TWU being open to all comers - heterosexuals and homosexuals alike - while enforcing a mandatory Community Covenant that denies basic freedoms to gay married couples that are granted to straight married couples.

How Trinity Western proceeds from here is up to them. I will be watching the school in the months to come to see what decision they make, and why.

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