The BC Humanist Association is celebrating a pair of 7-2 decisions from the Supreme Court of Canada affirming the Ontario and BC law societies' decisions to reject Trinity Western University's proposed law school.
The five-judge majority, writing in a united voice, argues that the law societies have a legitimate interest in ensuring principles of diversity and non-discrimination are fundamental to the integrity of the legal profession. Permitting a law school with a discriminatory admissions policy would be contrary to this end and therefore a decision to approve was unreasonable. "A more diverse bar is a more competent bar."
The majority wrote that the religious rights of "evangelical members of the TWU community" were limited and therefore they found it "unnecessary to determine whether TWU, as an institution, possesses rights under s. 2 (a) of the Charter." Nevertheless:
The LSBC’s decision did not limit religious freedom to a significant extent because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for their spiritual growth.
They conclude, "Being required by someone else's religious beliefs to behave contrary to one's sexual identity is degrading and disrespectful."
In his concurrence, Justice Rowe concludes that section 2(a) rights (freedom of religion) are not engaged in the case. He writes that "religious freedom aims to protect individuals from interference with their religious beliefs and practices," and precludes an organizational right to religion.
[219] Therefore, in the context of this appeal, I would decline to find that TWU, as an institution, possesses rights under s. 2(a). I note that, even if TWU did possess such rights, these would not extend beyond those held by the individual members of the faith community...This excludes TWU as an institution.
He goes on to say that the Covenant is coercive for non-Christians who (by TWU's own admission and as permitted by the law) attend TWU:
Where the protection of s. 2(a) is sought for a belief or practice that constrains the conduct of nonbelievers — those who have freely chosen not to believe — the claim falls outside the scope of the freedom. Therefore, interference with such a belief or practice is not an infringement of s. 2(a) because the coercion of nonbelievers is not protected by the Charter.
The student body at TWU is not coextensive with the religious community of evangelical Christians who attend TWU. Although TWU teaches from a Christian perspective, its statutory mandate requires that its admission policy not be restricted to Christian students. The Covenant is a commitment to enforcing a religiously‑based code of conduct, not just in respect of one’s own behaviour, but also in respect of others, including members of other religions and nonbelievers. Given that the coercion of nonbelievers is not protected by the Charter, TWU’s claim falls outside the scope of freedom of religion as protected by s. 2(a).
Quoting directly from the factum of the Canadian Secular Alliance, Rowe says "a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice."
Former Chief Justice McLachlin concurred with the majority but set out a different framework for coming to the same conclusion.
In their dissent, Justices Côte and Brown wrote that TWU's law school should be approved because the law societies did not have the authority to consider the school's admissions policy as part of its decision process. However, they similarly decline to decide whether TWU has an institutional religious right and instead look at the rights of the "TWU community."
Ian Bushfield, Executive Director, BC Humanist Association:
Today's decision affirms that freedom of religion does not trump equality rights. Equality has been reaffirmed as a fundamental value in Canada.
Further, none of the justices went so far as to recognize an organizational religious right. The majority talks about "evangelical members of the TWU community" as having a claim to the right rather than the school itself. Justice Rowe went further agreeing with our submissions that TWU does not have an institutional right to freedom of religion.
We're overjoyed to see that none of the justices on the Court sought to open the door to institutional religious rights. We've seen how claims of religious freedom are being used to roll back decades of progress on human rights and anti-discrimination legislation in the USA and it's reassuring to know that Canada's highest court has bucked that trend.
Background
Law societies in BC, Ontario and Nova Scotia had said they would not recognize TWU’s proposed law school based on the university’s Community Covenant, which excludes LGBTQ2+ students and places restrictions on reproductive freedoms. TWU asked courts in those provinces to overturn the law societies decisions. Courts in Nova Scotia and BC sided with TWU, while Ontario’s Supreme Court and Court of Appeal found the law society’s rejection to be reasonable. The Supreme Court of Canada heard appeals to the Ontario and BC decisions in December.
TWU has consistently argued that the law societies’ actions infringed upon its religious freedoms, while the law societies and LGBTQ2+ groups argued recognizing the school would legitimize TWU's discrimination.
In its submissions to the Supreme Court of Canada, the BCHA argued that religious rights don't extend to organizations in Canada. To grant organizations such rights "endorses religious oligarchy for individuals controlling organizations that obtain the benefit of s. 2(a) [of the Charter of Rights and Freedoms]." At oral arguments the BCHA built off this case with lawyers from the United Church of Canada and the Faith, Fealty & Creed Society to set out a restrictive test the court could adopt should it ultimately choose to extend such rights to organizations.
Read the Supreme Court of Canada's decision