OTTAWA — The Supreme Court of Canada decision on accreditation of Trinity Western’s proposed law school will have a lasting impact on religious freedom, say interveners.
“We certainly see this decision as a watershed moment in how the courts will interpret and apply not just religious freedom rights but religious associational rights and equality rights on the basis of religion,” said Derek Ross, president and general counsel for the Christian Legal Fellowship, in an interview.
The decision will also reflect “how they’re going to address what is undoubtedly a difficult, unpopular issue.”“Will they carve out space for communities, in this case Trinity Western, to continue to hold and to express views that do not conform to the majoritarian viewpoint?” he asked. “Or will minority communities will be forced to sort of conform to the prevailing views of the day.? That’s what we think is really at stake in this case.”
Canada’s highest court reserved decision Dec. 1 after hearing arguments over two days regarding appeals of decisions by the Law Society of British Columbia and the Law Society of Upper Canada not to accredit the private, evangelical university’s proposed law school. The law societies deemed Trinity Western’s mandatory community covenant — which requires students to refrain from sexual activity outside of traditional marriage — discriminatory against LGBT students.
Phil Horgan, president of the Catholic Civil Rights League, predicts the impact of the case will be “significant for a generation.”
“If Trinity Western is not allowed its accreditation, every minister in every province and territory of the country is going to now use that proposition to judge the next level of your curriculum, the next level of your program, the next level of any college you may wish to accredit for a degree process,” Horgan said in an interview. In Ontario alone, that could affect 700 to 800 private schools.
Gwendoline Allison, speaking on behalf of the Catholic Civil Rights League, the Faith and Freedom Alliance, and the Archdiocese of Vancouver, told the court that the message of the law societies’ refusal to accredit Trinity Western’s law school “is that religious beliefs and practices are not welcome in the public sphere.” The groups she represented, “including the Archdiocese of Vancouver will be directly and prejudicially affected.”
William Sammon, who represented the Canadian Conference of Catholic Bishops, told CCN a decision against Trinity Western would create a “huge problem” because “any regulator who’s got a public interest mandate, who’s dealing with a charity that they feel discriminates, can refuse to either approve the charity or accredit it, whatever the process might be.”
“They could take away its charitable status in order to force that group to conform to what it believes is the appropriate course of action,” Sammon said.
At issue in his submission was the impact the legalization of same-sex marriage will have on charities and religious institutions that hold to a traditional view of marriage, and whether “religious communities would be at risk of being censured or losing public benefits.”
“They heard us, they understood, we had our day in court, and that’s all we can ask for at this point,” said Albertos Polizogopoulos, who represented the Evangelical Fellowship of Canada. He noted how one justice suggested during the hearing that there was an “elephant in the room,” meaning “no accreditation means no law school.”
“The logical outplaying of a loss here would be all faith-based charities have their charitable status on the chopping block,” he said.
Barry Bussey, representing the Canadian Council of Christian Charities, said he told the court that “we are standing on an abyss of a revolutionary change on how religions have operated in Canada.”
A decision against Trinity Western could have the state potentially asking what a religious group’s position is on sexual morality, or on abortion, he said. “If it is in compliance, if it is congruent with the government, you get your licence.” Bussey’s organization represents 3,400 members, but he pointed out that 33,000 religious charities across Canada could be affected by this decision.
Gerry Chipeur, who represented the Seventh Day Adventist Church in Canada, said “We’ve given them every reason to rule in favour of Trinity Western.”
“I feel we had a good hearing. I’m impressed with the openness of the court to the arguments we made.”
He warned that if Trinity Western should lose, it will mean “anytime a church does anything outside the four walls of the sanctuary, anyone else can come in and force the rest of the group to abandon their Christian principles as they do the charitable work before them.”
Chipeur called the idea that any students are discriminated against “nonsensical.”
“They are not forced to go to this school, and they are free to start their own school,” he said.
Trinity Western University’s president Bob Kuhn has said the case is about much more than the law school. “It is about freedom for all faith communities and other minorities in Canada.”
Kuhn said he was happy with how the hearing went. “I think the court was attentive, was very actively involved in the questions, and treated the issue seriously.”
In all, 27 interveners participated in the hearing, 13 of them on behalf of Trinity Western. The Alberta Catholic School Trustees Association was part of a neutral intervention by a national coalition representing 61 Catholic school boards across the country. The coalition argued that “to maintain the Catholic education system and preserve Catholic identity, schools must have the ability to educate students in an environment that is consistent with their faith, which includes the determination of policy and admission.”
“Troubling implications flow from allowing a public body to refuse accreditation simply because of the religious character of the individual or groups seeking approval,” the coalition stated in its submission. “This is particularly so in the context of education, where individuals who choose or have chosen to attend religious schools run the risk of having their credentials stripped from them by
operation of public law.”
The United Church of Canada, however, opposed religious freedom for institutions. If you extend religious freedom to organizations, “you open up the problems this case presents to us, an organization shielding its coercive practices” under section 2a of the Charter, Tim Gleason told the court. He argued the covenant was “compelled ideological conformity.”
Lawyers for several LBGTQ organizations argued Trinity Western should not be allowed to discriminate on equality grounds. Angela Chaisson of Lesbians Gays Bisexuals and Trans People of the University of Toronto argued the community covenant caused a “direct harm” and created an “unequal playing field” for prospective LGBTQ law students. She warned of the ongoing “social exclusion,” LGBTQ people face, and the “chilling effect” caused by “homophobia.”
The Canadian Bar Association (CBA) argued the law societies’ granting accreditation amounts to a form of approval.
“State-supported discriminatory policies are not to be tolerated, even if it arises from private actors which had the right to hold those views,” argued Susan Ursel for the CBA.
“Trinity Western has a right to its beliefs and covenant, but has no right to state support.”
On Nov. 30, lawyers representing Trinity Western faced tough questioning from the bench. Justice Richard Wagner, who could be next in line to replace Justice Beverley McLachlin when she retires this month, led off by saying “students who don’t share the same sexual orientation” will either have to hide it, or act contrary to their deepest nature. He referred to “pain and suffering” on the part of these students and asked whether the covenant is not “an attack” on the “human dignity” of LGBT students.
Justice Rosalie Abella pointed out that since the first Trinity Western decision, Canada has brought in a law recognizing same-sex marriage. Abella read off some of the requirements of the covenant, such as refraining from getting drunk, swearing, using drugs or alcohol or drugs, and “sexual orientation” and concluded, “One of these things is not like the other.” Abella asked if Trinity Western has the right to ask people to refrain from the legal right of same-sex marriage.
Among the issues before the court is whether law societies have the jurisdiction to determine the entrance requirements of a law school, or only to recognize the credentials of law school graduates when they present them. Lawyers representing the law societies argued it was in the public interest to determine if there was equality of access to law school spaces.