Paul Schachter is a retired lawyer (Juris Doctor 1974) with extensive training and practice in the areas of human rights, civil rights and civil liberties. The analysis and views in this commentary are individual and not meant to be attributed to any organization.
On June 15, 2018, in a 7-2 decision, the Supreme Court of Canada upheld the decision of the Law Society of British Columbia (LSBC) to deny approval to Trinity Western University (TWU) for its proposed law school. In a companion case, the Supreme Court also upheld the decision to deny accreditation by the Law Society of Upper Canada. These decisions support Canada’s opposition to religious intolerance wherever it surfaces, even under the banner of “freedom of religion”.
The facts underlying the conflict are well-known. TWU announced its intention to open a law school as part of the university and obtained approval of its curriculum. TWU mandates that students and other members of its university community sign a “Community Covenant” that, among other things, forbids sexual relations except between a man and a woman in a marriage. This prohibition applies on and off campus and for all activities, even those not related to the university. This covenant restrains same-sex couples, LGBTQ2+ persons and others who don’t conform to intimate relations that TWU declares acceptable. TWU sought official accreditation of its law school, including its exclusionary covenant, from the LSBC, which eventually refused to approve the program because of its discriminatory structure. Appeals ensued.
In its decision, the Supreme Court did not directly settle the question of whether approving a law school with a covenant whose effect is to exclude LGBTQ2+ students violates the Charter of Rights and Freedom. Rather, it focussed on whether the LSBC acted reasonably to refuse to approve the law school. As a self-regulating body created by legislation, the LSBC must act according to the principles of administrative law. It has the authority to regulate the legal profession as long as it acts reasonably. In reviewing such administrative decisions, the courts’ role is to decide only whether the body did or did not act reasonably, not whether the courts would have arrived at the same conclusion.
In resolving whether the LSBC acted reasonably, the Supreme Court looked at the impact of the exclusionary covenant and engaged in a balancing exercise of deciding the proportionate “importance” of the religious practice compared to the harm to the rights of others. With respect to the opportunities to practice of law, the Justices stated:
Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession. This is especially so in light of the societal trust placed in the legal profession and the explicit statutory direction that the LSBC should be concerned with “preserving and protecting the rights and freedoms of all persons” as a means to upholding the public interest in the administration of justice. Indeed, the LSBC, as a public actor, has an overarching interest in protecting the values of equality and human rights in carrying out its functions. TWU Decision at para. 41 (citations omitted)
The majority found that
Eliminating inequitable barriers to legal education, and thereby, to membership in the legal profession, also promotes the competence of the bar and improves the quality of legal services available to the public. The LSBC is statutorily mandated to ensure the competence of lawyers as a means of upholding and protecting the public interest in the administration of justice. TWU Decision at para. 41 (citations omitted)
The Supreme Court categorically rejected that there was no “net discrimination.” A central argument of TWU and its defenders was that the law school would create an overall increase in law school seats and that LGBTQ2+ students would still have the option of attending non-discriminatory law schools. The Court explained:
Such arguments fail to recognize that even if the net result of TWU’s proposed law school is that more options and opportunities are available to LGBTQ people applying to law school in Canada — which is certainly not a guarantee — this does not change the fact that an entire law school would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity. Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people. In short, LGBTQ individuals would have fewer opportunities relative to others. This undermines true equality of access to legal education, and by extension, the legal profession. Substantive equality demands more than just the availability of options and opportunities — it prevents “the violation of essential human dignity and freedom” and “eliminate[s] any possibility of a person being treated in substance as ‘less worthy’ than others” (Quebec (Attorney General) v. A, 2013 SCC 5,  1 S.C.R. 61, at para. 138). The public confidence in the administration of justice may be undermined if the LSBC is seen to approve a law school that effectively bars many LGBTQ people from attending. TWU Decision at par. 94-95
The Supreme Court also made significant rulings on the issue of direct harm to LGBTQ2+ students. It wrote:
The British Columbia Court of Appeal accepted that if LGBTQ students signed the Covenant to gain access to TWU “they would have to either ‘live a lie to obtain a degree’ and sacrifice important and deeply personal aspects of their lives, or face the prospect of disciplinary action including expulsion” (para. 172). TWU’s Covenant prevents students who are not married to members of the opposite sex from engaging in sexual activity in the privacy of their own bedrooms. It requires non- evangelical LGBTQ students, whom TWU welcomes to its school, to comply with conduct requirements even when they are off-campus, in the privacy of their own homes. Attending TWU’s law school would mean that LGBTQ students would have to deny a crucial component of their identity in the most private and personal of spaces for three years in order to receive a legal education.
Despite this, TWU asserts that LGBTQ students will suffer no harm to their dignity or personal identity while enrolled at TWU because the Covenant requires all members of TWU’s community to “treat all persons with dignity, respect and equality, regardless of personal differences” (R.F., at para. 92). However, as this Court recognized in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11,  1 S.C.R. 467, it is not possible “to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood” (para. 123, quoting L’Heureux-Dubé J. in TWU 2001 in dissent (though not on this point), at para. 69).
LGBTQ students enrolled at TWU’s law school may suffer harm to their dignity and self-worth, confidence and self-esteem, and may experience stigmatization and isolation (see evidence of Dr. Ellen Faulkner in A.R., vol. V, at pp. 828-29 and 834; Dr. Catherine Taylor in A.R., vol. V, at p. 904; Dr. Mary Bryson in A.R., vol. V, at pp. 967-68). The public confidence in the administration of justice may be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity for three years in order to receive a legal education.
TWU Decision at par. 96-98 (some citations omitted)
The Supreme Court endorsed the LSBC’s assessment of the effect on the judicial system, the possible bias introduced by limiting access to the bar to people who can subscribe to particular faith beliefs and the harm to people based on their Charter-protected characteristics, saying:
The refusal to approve the proposed law school means that members of the TWU religious community are not free to impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSBC chose an interpretation of the public interest in the administration of justice which mandates access to law schools based on merit and diversity, not exclusionary religious practices. The refusal to approve TWU’s proposed law school prevents concrete, not abstract, harms to LGBTQ people and to the public in general. The LSBC’s decision ensures that equal access to the legal profession is not undermined and prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. It also maintains public confidence in the legal profession, which could be undermined by the LSBC’s decision to approve a law school that forces LGBTQ people to deny who they are for three years to receive a legal education. TWU Decision at par. 103
In light of these unqualified findings of inequitable impact and harm, the Supreme Court decision raises the question of whether a law society’s approval of the TWU law school could ever be reasonable under present conditions. Theoretically, in close cases, it may be possible for both opposing results to be reasonable, depending on the weight ascribed to the essential constituent factors. In this case, however, given the great weight the Court assigned to the harm compared to the minimal weight of the infringement, it certainly seems that a law society’s approval of a law school with a restrictive covenant such as TWU’s resulting in deleterious harm to LGBTQ2+ people and undermining of the integrity of the legal profession would inescapably be found unreasonable.
Before addressing how to assess religious freedom and religious intolerance issues going forward, it is of note that the TWU case was not the only significant case during this month to address issues of religious intolerance. The other case, Masterpiece Cakeshop Ltd. v. Colorado Human Rights Commission, 584 U.S. ___ (2018), was decided by the US Supreme Court just 11 days before the TWU decision. In that case, the US high court sidestepped a decision on whether a baker selling to the public with sincere religious beliefs and convictions could refuse to sell a wedding cake to be used to celebrate a same-sex marriage on either grounds of freedom of expression or freedom of religion. Justice Anthony Kennedy summarized the challenge presented by that case:
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [ ] Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. Masterpiece Cakeshop Ltd., Slip Opinion at p. 9
Although it did not decide the case at hand using the principle, significantly, the US Supreme Court opinion explained why exemptions from equality protections to allow for religious freedom for worship and religious rites may be granted while those for business may not, even when people with sincere beliefs run the businesses:
When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. Masterpiece Cakeshop Ltd., Slip Opinion at p. 10
Civil libertarians still face the challenge of how and when to apply the lessons learned from the TWU case (and Masterpiece Cakeshop) going forward. Court and civil liberties advocates have been grappling with the demarcation between religious freedom and religious intolerance for some time. While the recent decisions have helped clarify some of the contours of this difficult and often emotional topic, there are still many unsettled, potentially contentious issues.
There is no doubt that many people who argued in favour of the LSBC approval of the TWU law school did so because they truly believed this would give the best voice to freedom of religion and promote religious diversity. Advancing religious diversity in Canadian society is a laudable goal, but only if it can be achieved without causing critical damage to rights protected by the Charter. An accommodation analysis is often used to determine whether diversity can live harmoniously with other protected rights, such as the right to wear religious articles (e.g., turbans or hijabs or crosses) or the right to time off from work for religious practice. In this case, no accommodation was possible as long as TWU maintained its right to impose the covenant. As Chief Justice McLachlin explained in her concurring reasons:
the LSBC cannot condone a practice that discriminates by imposing burdens on LGBTQ people on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession. TWU Decision at par. 96-98 (some citations omitted)
The Supreme Court expressed no doubt that approval of TWU’s law school would decrease the diversity of the legal community based on sexual orientation. Moreover, whether denial of approval for TWU to have a law school with a discriminatory covenant in fact decreases religious diversity is contested. In his concurrence in the result, Justice Rowe raises an interesting point for civil libertarians, who traditionally have opposed both compelled speech and compelled adherence to any specific faith beliefs:
In the end, I agree that “a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice”: Canadian Secular Alliance, I.F., at para. 11. This follows if we accept that the freedom of religion guaranteed by the Charter is “a function of personal autonomy and choice”: Amselem, at paras. 42. It is based on the idea “that no one can be forced to adhere to or refrain from a particular set of religious beliefs”: Loyola, at para. 59. For this reason, it protects against interference with profoundly personal beliefs and with the voluntary choice to abide by the practices those beliefs require. It does not protect measures by which an individual or a faith community seeks to impose adherence to their religious beliefs or practices on others who do not share their underlying faith. I therefore conclude that what the claimants seek in this appeal falls outside the scope of freedom of religion as guaranteed by the Charter. TWU Decision at par. 96-98 (some citations omitted)
As we look to deciding future cases, it is important to note that some respected commentators have criticized the framework of balancing or proportionality that was used by the Supreme Court of Canada. They say that this methodology allows overly subjective determinations to recognize or deny rights based on contemporary and changeable social mores, rather than on Charter-recognized classifications. An alternate paradigm would allow unfettered choice to exclude others based on religious beliefs in the private sphere (church, home, small members-only social clubs), but not in the public sphere (commerce, accommodations, public access). There are also questions of whether Charter values are protected in addition to Charter rights.
The civil liberties community will undoubtedly face future hard choices in striking the balance between the cherished principle of religious freedom and the negative effects of religious intolerance. The lessons learned from the TWU case, together with further development of the different methods of analysis, will help provide clarity when new cases arise.