How our highest court stopped TWU’s Christian law school

This article appeared first in the Georgia Straight and has been edited online.

Back when the Reasonable Doubt column was still in its infancy, the fight was already raging for an evangelical Christian law school at Trinity Western University (TWU).

Over the years, this fight has gone from a referendum of B.C. lawyers to the B.C. Supreme Court and to the B.C. Court of Appeal. Last month, the Supreme Court of Canada finally weighed in.

So what was this all about? TWU, in Langley, B.C., is Canada’s largest privately funded Christian university. For years, it has been moving toward accreditation as a law school. It has been bogged down by criticism and controversy along the way. The issue has to do with the school’s covenant.

This covenant is a code that all faculty members and students live by. It outlines the values that TWU seeks to uphold in its community. The controversy centred around a definition of marriage as between a man and a woman and the prohibition of sex outside of marriage.

Let’s start with what this controversy wasn’t about. It wasn’t about whether or not TWU graduates would become competent lawyers. It also wasn’t about specific instances of discrimination of law students.

That’s because the law school hasn’t opened yet. As a result, the arguments for and against a TWU law school were based on ideals and principles.

TWU argued that it should be allowed to have a law school because of its constitutional right to religious freedom. It wanted to teach law in a community of individuals with similar values.

TWU argued that LGBTQ members weren’t discriminated against since they could choose whether or not to enroll. LGBTQ members had the option to enroll and were not being actively excluded from the school.

Taking that one step further, TWU argued that the evangelical Christian community was being discriminated against if its members were not allowed to run a law school.

On the other side was the Law Society of British Columbia. The Law Society chose to follow the results of a referendum of B.C. lawyers and refused to accredit TWU. It wanted its decision upheld by the highest court in Canada. It was largely supported by the LGBTQ community. The society’s argument was that a TWU law school would perpetuate systemic prejudices against the LGBTQ community.

A long-awaited decision from the high court

The hearing at the Supreme Court of Canada took place over two days in late 2017. Last month, the court released its 195-page decision.
The Supreme Court of Canada ruled against TWU. The nine judges were split 7 to 2, with the majority upholding the Law Society’s refusal to accredit TWU.

The majority acknowledged that the refusal was an infringement on religious freedoms. The decision then turned to whether or not this infringement was justified. This required considering the equality rights that were affected.

The court found the school’s covenant discriminatory to the LGBTQ community. It would act as a barrier to the proposed school and, in turn, to the profession itself. With religious freedoms in conflict with equality rights in this case, there would have to be some balancing.

The majority felt that it was up to the Law Society to take this balancing approach when deciding on TWU’s proposal for a law school. It found the Law Society reasonable in this balancing act because the Law Society had an overarching interest in protecting equality and human rights. As a result, the Law Society’s refusal was upheld.

This was a landmark case weighing equality rights with religious freedoms. The sides identifying with the TWU community and the LGBTQ community were intensely invested in the outcome.

This fight found both sides having to justify their very existence and identity. For the LGBTQ community, granting a law school to TWU would have been a huge setback in moving toward a more accepting society. For the TWU community, a refusal of a law school meant breaking down the protections to their religious values.

The decision of the Supreme Court of Canada addresses how a diverse society should respect each other’s differences. It will bring different people together rather than split them into camps.

At any one of the 19 law schools that currently run in Canada, someone who might identify with the TWU community will find him or herself alongside someone who identifies as LGBTQ. It is up to the law schools to redouble their efforts to ensure that everyone feels welcome and respected.