Canadian court ruling on university covenant rule supports religious freedom

LGBTQ efforts to kill a Christian law school fail.

Carolyn Moynihan | Nov 3 2016 | comment

About 30 attended this 2013 protest. Photo: The Province

An evangelical Christian university has won a victory for religious freedom in British Columbia, Canada. The provincial Court of Appeal unanimously decided this week that it was “unreasonable” for the local law society to withhold accreditation from future law graduates of Trinity Western University on the basis of its stance towards extra-marital sex and same-sex marriage.

A panel of five judges said the negative impact on Trinity Western’s religious freedoms would be severe and far outweigh the minimal effect accreditation would have on gay and lesbian rights.

“A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” says the 66-page judgment.
“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”

Trinity Western is a small evangelical Christian university with about 4,000 students, founded in 1962. Its Community Covenant “asks students to live according to Christian values, including honesty and integrity. It also asks students to abstain from sexual intimacy outside of marriage, which it defines as between a man and a woman.”

Nobody apparently worried about that until the university gained approval three years ago from the BC government to open a law school. Nor did the covenant rule then worry most of the provincial law societies, which approved automatic accreditation of graduates from the proposed faculty. The exceptions were in Nova Scotia and Ontario, where TWU also has campuses.

The BC Law Society initially approved of the university’s plans, but then bowed to gender rights activists’ claims that the rule about sex and marriage discriminated against unmarried couples and gays and lesbians wanting to enter the legal profession.

In June 2014 the society’s board of governors, called benchers, held a binding referendum on the issue. Of 13,000 members, 4178 voted on the question of whether the society should revoke its accreditation decision – 3210 in favour, 968 against. The Benchers then acted on the majority view of the minority who voted.

TWU took the decision to court, and in December 2015, the B.C. Supreme Court ruled the law society had acted improperly in holding the referendum. Now the Court of Appeals has confirmed the lower court’s decision. According to the National Post:

The Appeal Court decision found that denying approval to Trinity Western would not enhance access to law school for members of the LGBTQ community and therefore wouldn’t help the law society meet its public-interest objectives.
It found that creating 60 new law school seats, which brings the Canadian total to about 2,500, would divert some law school hopefuls from programs elsewhere and, as a result, increase the number of seats available to LGBTQ applicants.
“While we accept that approval of (Trinity Western’s) law school has in principle a detrimental impact on LGBTQ equality rights because the number of law school places would not be equally open to all students, the impact on applications made … by LGBTQ students would be insignificant in real terms.”

From the last paragraph it appears that the judges would not necessarily reach the same conclusion about a big private school. In their balancing of LGBTQ rights and religious freedom rights they have taken into account the real impact TWC’s covenant rule is likely to have.

The court also faulted the benchers on points of administrative law: allowing themselves to be inappropriately blinded by their members, failing to weight the impact of the decision on charter rights and following the majority decision after binding referendum.

The issue also went to the Courts of Appeal in Nova Scotia, where a decision against the N.S. Barristers’ Society is not being appealed; and Ontario, where the court came to a different conclusion about the balancing of rights and upheld the Law Society’s stance against accreditation. TWU is challenging that decision in the Supreme Court of Canada.

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