In two separate decisions released today, the Supreme Court of Canada has ruled protection of the public interest and the human rights of LGBT students at the evangelical Christian school outweigh the religious freedoms of TWU. Both decisions were decided by 7-2 majorities.
Janet Epp Buckingham, a professor at Trinity and one of the architects of the law school, called the decision a “loss” for all Canadians.
“We’re very saddened and disappointed that the Surpeme Court of Canada has ruled against a small Christian university (and that) we will not be able to start out law school under the present circumstances,” Epp Buckingham told Convivium in the foyer of the Supreme Court building.
“Canada has always upheld the value of diversity and pluralism and has been willing to include a wide variety of backgrounds and religious beliefs. The majority of the judges ruled there was a violation of religious freedom, which is very important in this case. It’s a long and complicated decision so it’s hard to say what the implications are going to be for the broader community, but it does call into question what the balance is going to be between religious freedom and equality rights for the LGBT community.”
In fact, eight of the nine justices of the Court acknowledged Charter Rights to freedom of religion were infringed when the Law Society of Upper Canada and the B.C. Law Society refused to accredit future Trinity law grads because of the school’s Community Covenant. The Covenant requires all students and staff to follow Christian principles that include abstaining from sexual conduct outside of marriage between a man and woman.
But the majority ruled the violation was justifiable because of the greater harm caused to LGBT students by being excluded from attending TWU’s law school.
“The decision of the (B.C Law Society) represents a proportionate balancing of freedom of religion, on the one hand, and the avoidance of discrimination on the other. Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful,” they write.
Similar language is used to justify the Ontario law society’s refusal to accredit future TWU grads. The two cases, though separate, were heard at the same time last November. In their rulings, the majority overturned a decision of the B.C. Appeal Court that had quashed the law society’s refusal to accredit TWU law grads. They upheld a decision by the Ontario Court of Appeal that the Law Society of Upper Canada acted reasonably when it refused to accredit.
In dissent, Justices Suzanne Coté and Russell Brown said the law societies acted outside their statutory authority, which requires them only to ensure individual graduates are “fit to become members of the legal profession because they meet minimum standards of competence and ethical conduct."
Lawyer André Schutten, who made oral arguments as an intervenor at the Court’s hearing last November, said the majority were enamored of “nebulous and ungrounded Charter values of equality over the rule of law” while the dissenting minority stuck to the law itself.
“The dissent is a fantastic legal analysis. It’s robust. It engages with the law and points to the Constitution as our standard. That’s what a Supreme Court should be doing, not pointing to the feelings of a few bureaucrats. It’s frustrating and disappointing.”
Schutten said he was hearted a few weeks ago by the Wall decision in which the Supreme Court said religious matters are for religious believers to decide.
“But with this decision today, it seems the Supreme Court has made it clear that you can be a Christian all you want within the four walls of your church but as soon as you want to apply that faith in a community, outside the institutional church, all bets are off. You’ve got to conform to the new secular values.”
As for the future of Trinity’s proposed law school, Epp Buckingham said no decision has been made on whether to go ahead with it. Likewise, the school hasn’t yet decided whether it will remove the Covenant.
“Obviously, we had hoped for a different outcome and so we don’t have the plan B ready to go. We will continue to operate as a Christian university for fall of 2018,” she said.
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