Trinity Western students at Ottawa’s Laurentian Leadership Centre on the steps of the Supreme Court of Canada Dec. 1, with director of the centre Janet Epp Buckingham (third from left). (CCN/D. Gyapong photo)
OTTAWA (CCN) — Refusing to accredit Trinity Western University’s law school could adversely affect all religions and Christian institutions, interveners warned the Supreme Court of Canada Dec. 1.
“We are standing on an abyss of a revolutionary change on how religions have operated in Canada,” said Barry Bussey, representing the Canadian Council of Christian Charities. “This decision will become a template” on how governments license and register a range of institutions from nursing homes to soup kitchens. It could also have an impact on ability to obtain charitable status, he said.
If the law “drives out difference, we will no longer be a pluralistic society,” Bussey said.
On Nov. 30 and Dec. 1, the Supreme Court heard two simultaneous appeals involving decisions by the Law Society of British Columbia and the Law Society of Upper Canada not to accredit Trinity Western’s proposed law school because the private evangelical university has a mandatory community covenant. This covenant requires students, staff and faculty to live by Christian moral standards, including refraining from sexual activity outside of traditional marriage. The law societies deemed this covenant discriminates against LBGTQ students.
Bussey admitted the law societies were “put in a difficult position” when approached by individuals who had been offended because in their view the covenant challenged their identity and dignity.
“Our rights and freedoms are not based on popularity,” he argued. State actors should not be “forcing minority views to conform to majority views.”
Never before in the history of Canada has the state so well “sought to impose its own definition of tolerance in the most intolerant way,” said Bussey. “If there was ever a time for this court to zealously protect religious minorities, I would suggest it is now.”
The Canadian Conference of Catholic Bishops and other religious interveners were concerned about context in light of the legalization of same-sex marriage, said lawyer William Sammon. He noted the CCCB had intervened in the 2004 marriage reference, joining other religious interveners who “were concerned that those who held to the religious definition of marriage would be deemed bigots deserving of censure.”
He pointed out that both the Supreme Court’s marriage reference and the Civil Marriage Act legalizing same-sex marriage made it clear those who disagreed had a Charter right to maintain their views on traditional marriage. The law societies’ decisions were a “clear contravention” of the Court’s direction in the marriage reference, he said.
“Trinity Western has suffered a harm because the law societies have failed to accredit that university because of that covenant,” Sammon said.
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,” said Gwendoline Allison on behalf of the Archdiocese of Vancouver, the Catholic Civil Rights League and the Faith and Freedom Alliance. The groups she represented, “including the Archdiocese of Vancouver, will be directly and prejudicially affected.”
The B.C. Court of Appeal noted the “severe detrimental impact” the B.C. law society’s decision had on the students of Trinity Western, she said. Religion is “an aspect of identity; marginalization of religions is a denial of equal rights.”
To find “authentic pluralism, we must find ways in which competing rights and values can be shared rather than the dominance of one group over another,” Allison said.
“There is no need to hierarchize rights if peaceful coexistence is possible,” argued Eugene Meehan on behalf of the National Coalition of Catholic School Trustees Association. “Not privileged one right over another protects all rights.”
“LGBTQ peoples have suffered terrible violations of their civil rights,” Meehan told the Court. But he asked whether in remedying that violation, “must the recognized rights of religious communities also suffer.”
“The law societies have demanded that those undertaking the religious objective of creating a Christian university change their beliefs to be accredited,” said Gerry Chipeur, acting on behalf of the Seventh Day Adventist Church in Canada. “It is our position that no group should have to change beliefs as a condition of receiving a government benefit.”
The United Church of Canada, however, opposed religious freedom for institutions. Lawyer Tim Gleason said freedom of religion and conscience is “a human right that can only be held by humans.”
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, Gleason said.
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.
An impact on other areas of licensing — the abyss Bussey referred to — “are logical implications,” she said, implications the CBA would favour. “Trinity Western has a right to its beliefs and covenant but has no right to state support.”
In all, 27 interveners argued for or against the accreditation of the law school.
The previous day, lawyers representing Trinity Western University faced tough questions from several Supreme Court Justices.
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.
Lawyers for Trinity Western argued the covenant is “part of the shared definition of a religious community,” a “religious minority” and noted the charter protects the right to establish communities of faith.
The only charter rights being infringed are the religious freedom and freedom of association rights of the Evangelical Christian community at Trinity Western, argued Kevin Boonstra for Trinity Western.
Boonstra pointed out the Charter binds the law societies, but not Trinity Western, which is seeking accommodation for its religious character in the same way a Sikh receives religious accommodation for his kirpan in a weapons-free environment.
This is not the first time Trinity Western has been before the Supreme Court over its community covenant. In 2001 the Court decided in favour of the accreditation of its teachers’ college over the objections of the B.C. teachers’ college.
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.
Chief Justice McLachlin reserved decision on the case.
Bob Kuhn, president of Trinity Western, told CCN he thought the university had been granted a fair hearing.