Unlike the United States, in Canada there are no faith-based or private law schools. Trinity Western University (TWU), a well respected Evangelical university in British Columbia (BC), had planned to open the first. TWU received preliminary approval from the Federation of Law Societies of Canada, and was also granted authority by the BC government to issue a law degree. Yet its proposal faced opposition from several provincial law societies (the quasi-governmental bodies responsible for regulating lawyers, similar to mandatory state bar societies). Opposition was based on TWU’s Community Covenant—a code of conduct by which all staff and students must abide. The Covenant requires, among other things, that members of TWU’s community abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
This provision was denounced by the Law Societies of BC and Ontario as “derogatory” and “harmful,” “offensive and morally diminishing,” “offend[ing] human dignity,” “perpetuat[ing] prejudice,” and comparable to racism. The Law Societies argued that the Covenant effectively excluded LGBTQ students, and therefore refused to recognize TWU’s law degree, even while conceding that its proposed law school met all academic qualifications, and its graduates would undoubtedly be competent, ethical, and qualified.
A Complex Case
The issues in the TWU litigation are complex and nuanced. This was evidenced in the disparate decisions reached by lower courts in three provinces: four decided in favour of TWU, two against. Even the Supreme Court of Canada, whose rulings typically reflect a large degree of consensus among the judges, was unusually fractured in its final disposition of the case, issuing two companion judgments each with four separately written opinions, totalling over 250 pages (available here for BC and here for Ontario).
Some of the nuances of the case have been lost in the media narrative. While many have tried to frame TWU’s Community Covenant as a “no gays allowed” policy, its provisions speak only to a religious conception of marriage, applicable to all students, regardless of sexual orientation. Indeed, some judges in the lower courts acknowledged that it had an equal effect on any person, including heterosexual students, who preferred not to “engage in the institution of marriage.” LGBTQ students have attended—and continue to attend—TWU, and some filed affidavits affirming that they found it to be a welcoming environment. While that experience may not be universally shared, it is also inaccurate to state that TWU simply bars LGBTQ students from attending. As the dissenting Supreme Court justices observed, “the purpose of TWU’s admissions policy is not to exclude LGBTQ persons, or anybody else, but to establish a code of conduct which ensures the vitality of its religious community.”
But it was not just the Covenant’s provision on marriage that decision makers found objectionable. The Law Society of Ontario objected to TWU’s self-identification as a “distinctly Christian environment” and argued that this discriminated against “individuals who do not share a thoroughly Evangelical Christian worldview, including religious minorities such as Jews, Muslims, Buddhists, Atheists and Agnostics.” The Ontario Divisional Court accepted this argument, concluding that “the discrimination inherent in the Community Covenant extends . . . to those persons who have other religious beliefs.”
Ultimately, the Law Societies’ decisions, which were upheld by seven of the nine Justices of the Supreme Court, concluded that it would not be in the “public interest” to recognize law degrees from TWU, effectively meaning that its graduates would not be licensed to practice law in BC or Ontario, solely due to the religious practices of their educational institution.
Undermining Religious Freedom, Judicial Precedent, and the Rule of Law
At first blush, this appears to be a blatant violation of both religious freedom and the right to equal treatment regardless of religion. Individuals or organizations should not be denied access to a government program or license for which they are otherwise qualified because of their religion. Indeed, in 2001, the Supreme Court concluded as much, when it decided in favor of TWU and its right to maintain a Community Covenant. There, TWU’s teacher’s college was opposed by professional regulators for similar concerns related to its Community Covenant. The Supreme Court rejected their approach, concluding that, although “TWU is not for everybody,” there is space in Canada for educational institutions “designed to address the needs of people who share a number of religious convictions,” and that “freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.”
One would have thought that a Supreme Court precedent directly on point, regarding the same school would have been sufficient to resolve the issue. Indeed, the BC Law Society initially concluded that it was obliged to approve TWU’s law school based on the authority of the 2001 Supreme Court ruling (‘TWU 2001’). But after pushback from its members, the Law Society put the matter to a popular vote among all lawyers in the province and agreed to adopt the results against TWU.
As it turned out, the Supreme Court seemed no more concerned about its 2001 precedent than the Law Societies were. The majority did not even attempt to distinguish the present case from the earlier decision. This was remarkable, especially since several lower courts in the litigation viewed the precedent as largely binding (the BC Supreme Court described it as “dispositive of many of the issues in this case”). For her part, outgoing Chief Justice McLachlin (the only justice remaining from TWU 2001) devoted just a few sentences in her concurring opinion to explaining why she was not bound by her earlier decision:
There [in 2001], the College of Teachers based its claim on the concern that teachers trained at TWU would bring discrimination into the classroom. The [Law Society] here has not impugned the competence of potential graduates from TWU. Instead, it is concerned with upholding its own mandate by seeking to avoid condoning or even appearing to condone discrimination.
But this is not entirely accurate. In 2001, the College of Teachers did base its accreditation decision, in part, on concerns about “creat[ing] a perception that [it] condones . . . discriminatory conduct.” In addition, it wasn’t entirely clear what motivated the Law Societies in the current case, since neither body issued reasons for its decision. Indeed, the Law Society of BC simply adopted the outcome of a majority vote referendum (which, as Justice Rowe observed, contradicted the Constitution’s promise to protect religious minorities from “the tyranny of the majority”).
It is difficult not to view the 2018 Trinity Western judgment as undermining the rule of law. As the Supreme Court unanimously declared less than two months earlier, if courts do not follow binding precedent, or at least articulate a valid reason for departing from it, “the law would be ever in flux—subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.”
But the Trinity Western decision is troubling for more than its departure from precedent. While much of the decision attracts criticism, perhaps what is most troubling is the court’s elevation of undefined and amorphous “values” above constitutionally protected rights.
“Judicially Preferred Values” Should Not Trump Constitutional Rights
TWU’s Community Covenant violates no Canadian law, and it has never been suggested that TWU has done anything unlawful. Applicable human rights legislation protects TWU’s ability to “discriminate in their admissions policies on the basis of religion.” Indeed, allowing religious communities—including educational institutions—to limit admission to those who affirm their beliefs, mission, and ethos is not unlawful discrimination: it is constitutionally-protected association. Legal protections for policies such as TWU’s Community Covenant are not mere exceptions to human rights norms. Rather, they have been upheld by courts as a necessary part of accommodating religious freedom; as “conferring and protecting” rights including the right to associate; and as serving an “important equality seeking purpose” necessary for the realization of “true equality” (see further discussion here).
Similarly, TWU’s beliefs about marriage are protected by Canadian law. The freedom to hold and publicly express a view of marriage as the “union of a man and woman to the exclusion of all others,” without censure or sanction, is enshrined in the statute that recognized same-sex marriage in Canada. The Canadian Charter of Rights and Freedoms (Canada’s Bill of Rights) has also been interpreted to protect that view and its public expression.
How then could it be that an institution that (1) complies with all applicable laws, (2) meets all professional and academic standards, and (3) produces ethical, qualified, and competent graduates is rejected? The answer, according to the Supreme Court, is because it does not conform to Canada’s “shared values” and is therefore not in keeping with the Law Societies’ mandate to further the “public interest.”
As the dissent stressed, there are significant problems with this reliance on “values” at the expense of actual Charter rights: “resorting to Charter values as a counterweight to constitutionalized and judicially defined Charter rights is a highly questionable practice.”
One would have thought that the various legislative provisions that explicitly protect TWU’s community reflect some of Canada’s shared values, but the majority did not entertain a discussion on that point. Instead, the majority stressed that “shared values—equality, human rights and democracy—are values the state always has a legitimate interest in promoting and protecting.”
The majority did not pause to define any of these terms. Does “equality” not also include equality based on religion, as enshrined in the Charter? Do “human rights” not also include freedom of religion, freedom of association, and freedom of expression, all of which are guaranteed by the Constitution and invoked by TWU’s community? Does “democracy” not require “tolerance of divergent beliefs” as one of its “hallmarks,” as the Supreme Court stated in TWU 2001?
A violation of a constitutional right surely ought to be justified by more than a vague invocation of “equality,” “human rights,” or “democracy.” These are all capacious concepts susceptible to competing interpretations. Unlike Charter rights, which are the product of constitutional settlement, “values”’ are, as the dissent observed, “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.” Invoking “values” to trump constitutional rights undermines the very purpose of judicial review, which is about applying legal standards, not judges’ “aspirations, ideological visions or freestanding opinions about what is just, appropriate and right.”
Undermining True Diversity
The majority’s decision was based on a deeply impoverished understanding of a pluralistic society. The majority’s decision, like the Law Societies’ arguments, repeatedly made reference to “promoting diversity within the bar,” yet it overlooked the value of promoting religious diversity. A religious law school would have contributed to the richness of a diverse bar, and made it more reflective of the society it serves, by encouraging religious minorities to enter the profession. As the dissent recognized, to accommodate religious freedom is to promote diversity in a liberal, pluralist society.
The effect of the majority’s decision, however, is to undermine true diversity. Authentic pluralism accommodates a diversity of private associations and institutions—including those that may focus on serving a specific segment of the community. It is not achieved by forcing those private associations to alter their defining characteristics (religious or otherwise) to ensure that all people will want to join. Diverse associations and institutions are necessary to a free and democratic society, but such communities cease to exist when the state dictates what their core beliefs ought to be or requires them to deny such beliefs.
If another minority community were to propose opening a law school designed to serve a different group—even to the exclusion of others—would it face the same opposition as TWU? Would it be characterized as undermining diversity? Or would the Law Societies recognize that such an institution promotes diversity, and that by encouraging and helping students within a particular community to obtain an education it serves a social good? Why is it that religion is the one diversity category that we do not seem prepared to fully accommodate?
A Missed Opportunity
An independent legal profession that is truly diverse, inclusive, and reflective of the society it serves must be a place where all are free “to think, to disagree, to debate and to challenge the accepted view without fear of reprisal” (as observed by the BC Court of Appeal).
Reasonable people of good faith may disagree on these matters of ethics, sexuality, and marriage, but such disagreement is not tantamount to discrimination. The government’s role is not to obliterate the existence of conflicting moral commitments—even ones that are deeply contested and go to the core of citizens’ sense of identity and deeply cherished conceptions. The government’s role is to allow for difference, not to mandate approval or acceptance. As Justices Côté and Brown affirmed in their dissent:
Pluralism, and the religious accommodation necessary to secure it, is inherently valuable. In a country whose people sometimes harbour conflicting moral values that cannot be reconciled to a single conception of how one should live life, there is wisdom in the idea that the public sphere is for all to share, even where beliefs differ . . .
It is therefore not open to the state to impose values that it deems to be “shared” upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values. By accommodating diverse beliefs and values, the state protects and promotes the Charter rights of all Canadians.
While many have tried to frame this case as a clash between religious freedom and equality rights, it need not have been so. Constitutional rights are not competitors in a zero-sum game. They can often be fully exercised in co-existence, as the Supreme Court recognized in TWU 2001. Since that time, both equality rights and religious freedom have enjoyed expanding interpretations: in tandem, not competition. In the very context of expanding equality rights on the grounds of sexual orientation, religious freedom has been strongly affirmed. For example, in the decision that affirmed Canada’s recognition of same-sex marriage, the Supreme Court also stressed that religious officials cannot be compelled to officiate weddings that contravene their religious teachings.
It is possible for decision makers to find ways to respect and accommodate seemingly conflicting rights. It is disappointing that, in the Trinity Western decision, the majority of the Supreme Court of Canada departed from this approach.
Derek Ross is a constitutional and human rights lawyer. He represented Christian Legal Fellowship, Canada’s national association of Christian legal professionals and law students, as an intervenor at the Supreme Court of Canada in the TWU appeals. The views expressed are his own.