Comment: Law-school ruling affects all of us

The Supreme Court of Canada has released its much-anticipated decision on Trinity Western University, upholding the decision of the Ontario and British Columbia law societies to deny approval to TWU’s proposed law school.

Now that the court has spoken, it is tempting to conclude that the debate is over, and equality won. However, the TWU decision is better understood as one important moment in an ongoing dialogue about how religious freedom and sexual-minority rights should be balanced within diverse institutions.

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Trinity Western University has been trying to open Canada’s first faith-based law school since at least 2012. The proposal has been controversial since the outset, due to a particular sentence in one of TWU’s central institutional documents. TWU has a “community covenant,” a written set of community standards that all TWU faculty, students and staff must agree to abide by. The covenant commits the TWU community to Biblical virtues such as love, peace, patience and self-control.

However, the covenant also requires that community members abstain from certain practices, including “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

The consequences for students at the university who refuse to sign the covenant or breach its terms are a range of disciplinary measures up to and including expulsion. The law societies of B.C. and Ontario decided it would not be in the public interest to formally recognize the law school on the basis that the school’s mandatory covenant would effectively deny admission to one class of applicants — LGBTQI+ individuals — on a prohibited ground of discrimination.

For many, the question at the heart of the TWU dispute has been how to weigh the religious freedom of TWU and the members of its community against the equality rights of individuals who would be excluded from its law school.

This particular dilemma of conflicting rights has emerged as one of Canada’s highest-profile culture wars, with debates about the respective merits of the “religious freedom” and “equality” positions extending far beyond the courtroom into university and college classrooms, religious congregations and dinner-table discussions. By the time the issue reached the Supreme Court of Canada, 29 non-governmental organizations and government representatives had also had their say.

In the immediate aftermath of the Supreme Court of Canada decision, it is tempting to see that one side triumphed over the other. However, for many of us, especially those of us working in legal education in British Columbia, to cast the decision this way risks missing broader societal dimensions of this dispute, and particularly the complex issues surrounding “public” and “private” institutions and minority freedoms.

We offer some comments on the ruling and some of the important issues that remain open to debate.

First, the court did not decide that Trinity Western University cannot operate a faith-based law school. The majority was very clear that the law-society decision it was upholding “only prevents TWU’s community members from attending an approved law school at TWU that is governed by a mandatory covenant.” The implication is that there is no objection to a religious legal education per se, and that TWU may proceed with its law-school proposal, with or without a (voluntary) covenant.

Second, the court did not decide whether TWU itself could have a religion. This is a difficult issue. American law has moved very quickly to recognizing the religious freedom of for-profit corporations, and the court appeared understandably wary of moving in that direction, even though the party before it was a charitable institution.

However, the result of ignoring the issue of whether TWU itself could be the rights-holder was that the religious freedom at stake was cast as the right of individual students to attend a school with a mandatory code of conduct, rather than the right of a religious institution to set the bounds of its own membership and establish its own rules.

Finally, by deferring to the law society’s decision to interpret its public-interest mandate broadly and to refuse accreditation to TWU, the court raised difficult questions of where decision-making should lie for admissions to law schools and ultimately to the legal profession. Giving the legal profession the power to tell a law school who they can or cannot admit, as the court has arguably done here, has the potential to create more issues of substantive equality than it solves.

Most Canadians likely do not see themselves as affected by a decision on whether small groups of students can be denied access to what would be B.C.’s fourth law school. But how we conduct ourselves in a free and democratic society really matters, particularly in an era when rights conflicts are increasingly cast as either-or dilemmas.

People will disagree strongly on the outcome of the TWU decision, and on the views expressed by members of the court in their complex, plural judgments.

However, we can strive to do justice to the strong convictions of persons on both sides of the debate by treating the decision as part of a continuing dialogue on how religious freedom and sexual-minority rights can best be respected within our diverse institutions.

Kathryn Chan is an assistant professor and Gillian Calder is an associate professor in the faculty of law at the University of Victoria.

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