Did the Supreme Court of Canada get it right in its controversial ruling against Trinity Western University’s plans for a law school? It depends on who you ask.
The law societies of Ontario and British Columbia refused to accept future law school graduates from Trinity Western because the private, evangelical Christian university had a community covenant that prohibits sexual activity outside of traditional marriage.
In June, the Supreme Court ruled 7-2 that the covenant discriminated against equal access to the law profession by lesbian, gay and other sexual minorities. Trinity Western later withdrew its covenant requirement for students, although staff and faculty at TWU will still be required to sign it. (Read the reasons for judgment here)
Months later, scholars are still debating the effects of the ruling.
“I thought it was a poor decision that basically narrowed our understanding of religious freedom,” said Father Deacon Andrew Bennett, a program director of Cardus – a faith-based think tank in Ottawa.
At issue was a balancing of the Charter rights of religious freedom and freedom of association with minority rights.
A lower court in B.C. that heard the Trinity Western case ruled that “an entire law school would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity.”
“People are free to practise their religion in Canada; (the ruling) does not change that,” said Edmonton lawyer Sean Smith, who attended a panel discussion of law experts who dissected the Trinity Western decision on Sept. 13 at the University of Alberta.
“What this says is that the doors to the profession of law have to be equally open to all.”
However, the access argument — that the university’s covenant excluded people on the basis of sexual orientation — is based “on a reduced understanding of human sexuality and personhood which asserts that unless you can act on your sexuality, you’re being discriminated against,” said Bennett.
“I don’t think it’s a strong argument, as it is based upon a limited view of the human person,” said Bennett, a former Canadian ambassador for religious freedom.
“At the heart of the debate is a growing difference in how we understand equality rights.”
Trinity Western’s values — in particular, the traditional marriage of man and woman — are being increasingly forced out of Canadian society by the courts, some experts say.
“Amidst the vast sea of secular universities in Canada here is one that actively, publicly attempts to offer parents and students a genuinely alternative form of community life to the degrading, all-pervasive, depression-riddled hook-up culture now endemic to most other campuses,” Ryan Topping, vice-president and academic dean of Newman Theological College in Edmonton, said in a commentary on the ruling.
“Now by a 7-2 vote the court has said no … Apparently, there is not enough room in Canada’s multicultural tapestry of creeds and colours for chastity. ‘Diversity,’ declared the court, would be damaged.”
Additionally, the Trinity Western ruling raised questions about a perceived “hierarchy of rights” under the Charter of Rights and Freedoms, said Edmonton lawyer Allan Damer, a Catholic:
“There seems to be this collision between religious rights and equality rights, and it seems like decisions like this create concern for religious organizations to the extent that religious rights don’t seem to have the same status as other rights under the Charter,” said Damer. “They’re on a lower echelon.”
The administrators of the law societies, or benchers, should not consider an individual’s religious belief to be of public interest when deciding who is accepted to practise law, said Damer.
“The administrative role of the benchers of the law society is to ensure that the product of our law school will be a competent, capable lawyer,” Damer said.
“And can you not have a competent, capable lawyer who holds a particular religious belief? How does that impact negatively on the public?”
Also, as a private, religious institution, Trinity Western is exempt from B.C. human rights legislation, so it was wrong for the Supreme Court to hold it to a different standard, said Leonid Sirota, a law professor at Auckland University of Technology in New Zealand.
Months after the ruling, the Trinity Western ruling raises more questions than it answers and how it will impact future court decisions remains to be seen, experts say.
“The decision left us all somewhat hanging,” said Patricia Paradis, executive director of the Centre for Constitutional Studies at the U of A, who helped organize the panel discussion.
“I think what the talk really says to us is that the Supreme Court of Canada is very divided on these issues and the people who are scholars in the field — academics in the field — have different critiques in the way in which the Supreme Court arrived at its decision.”
“I think that we have a long way to go in respect of this. This isn’t the end of the road; it can’t be.”
–With files from Canadian Catholic News