Many people in my community have become very excited about the case of Law Society of British Columbia and Trinity Western University (‘TWU’) and Brayden Volkenantwhich together with a similar case in Ontario went all the way to the Supreme Court of Canada (‘SCC’) for a decision about how religious freedom and the right to be free from discrimination worked together in Canada. It is always difficult for courts to reconcile 2 conflicting freedoms. In this case at issue was the right of the TWU community to religious freedom and the right of members of the LGBTQ community to be free from discrimination. Both are important rights protected by the Charter. Should one override the other or should one be bent in favor of the other?
To evangelical Christians in my community this was a crucial case. They felt their religious freedom was at stake. I heard that the Southland Church, the largest evangelical church in town, , held a fast and vigil the night before the decision was announced. Their prayers went unanswered.
TWU is an evangelical Christian postsecondary school that sought to open a law school that would require its students to sign a Covenant Agreement (‘Covenant’) that prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.” That covenant prohibits conduct throughout the 3 years of law school even when students are off campus in the privacy of their own homes.
The Law Society of British Columbia (‘LSBC’) is the regulator of the legal profession in BC and implemented a resolution declaring TWU’s proposed law school was not an approved faculty of law because of its mandatory covenant. It felt that the covenant was discriminatory against the LGBTQ community and others. TWU and one of its students made an application to court to compel LSBC to approve its law school arguing that its failure to do so violated its religious rights protected by s. 2(a) of the Canadian Charter of Rights and Freedoms (‘Charter’). The SCC upheld the decision of the LSBC and hence the proposed law school is notapproved in BC. Other provinces may follow the same course of action.
Was the SCC right or are the protesters at Southland right? The reasons of the court were long and complicated. I would recommend that anyone interested in this subject read those reasons in their entirety. It is difficult to fairly précis the decisions. All in all 7 SCC judges agreed with LSBC and 2 dissented agreeing with TWU.
The nub of the matter is that law school seats are a treasured benefit. Hundreds of people, across Canada apply for each seat. TWU would have had 60 seats available for its graduates and it was clear to all that TWU’s Covenant would have effectively closed the door to the vast majority of LGBTQ students. Those who would have been able to sign the Covenant would have had 60 more law school seats per year to apply for than LGBTQ students. In short LGBTQ students would have fewer opportunities relative to others. Should that have been allowed? The majority of the SCC said “no”. The SCC held that this would undermine true equality of access to legal education and by extension the legal profession. According to the majority of the SCC “substantive equality demands more than just the availability of options and opportunities–it prevents the violation of essential human dignity and freedom” and “eliminates any possibility of a person being treated in substance as ‘less worthy’ than others.”
TWU admitted that eliminating the mandatory Covenant, which is what LSBC required, would not prevent any believing member of their community from adhering to their beliefs. Rather it said removing the Covenant was an interference with their members’ beliefs that they must be in an institution with others who shared or respected their practices on sexual relations.
The majority of the 7 judges (5 of them) disagreed with TWU holding that the impact of the decision of the LSBC was “of minor significance” to the religious freedom of the TWU community. The Chief Justice McLachlin and one other judge admitted it was of morethan minor significance. butnonethelessagreed that the Covenant could not lawfully be required. I find her judgment the most interesting.
First, because TWU is a private institution, the Charter does not apply to it and it is allowed to discriminate against the LGBTQ community (even though I would argue it ought not to do that because it is not right to do so). But the TWU insistence on the mandatory Covenant is a discriminatory practice because it imposes a burden on LGBTQ people solely on the basis of their sexual orientation. Married heterosexual law students can have sexual relations, while married LGBTQ students may not! The Covenant “singles out LGBTQ students” (and others I would add) “as less worthy of respect and dignity than heterosexual people and reinforces negative stereotypes against them,” the Chief Justice said. Those LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students. Heterosexual students can choose from all law schools without discrimination, where one law school would only be available to LGBTQ students willing to endure discrimination. This, the court determined, is a harmcaused by the exercise of religious freedom by TWU.
The LSBC is duty bound to protect the public interest and preserve and protect the rights and freedoms of everyone, including the LGBTQ people. The religious freedom of TWU stops at the point where it harms others and infringes on their rights. The LSBC was within its rights to refuse to condone practices that treat certain groups as less worthy than others. I would respectfully suggest that members of the Southland Church Community should also refuse to condone such practices on the part of TWU.
The Chief Justice admitted that this decision has negative impacts on the religious freedom of the TWU community and these were of more than minor significance. Yet she accepted the position of the LSBC that it could not condone a practice that discriminates by imposing burdens on the LGBTQ community on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity, and enhancement of equality in the legal profession. The Law Society was faced with an either-or decision on which compromise was impossible–either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices . In the end, she said, “after much struggle the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion…The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.”
While I agree completely with the decision of the Chief Justice of Canada and the other judge who agreed with her, I want to go a step farther. I want to go beyond the narrow confines of the law and the Canadian Charter. I think it is time–no it is high time–for the evangelical religious community to take an honest look at itself and its traditional practices. It is time for it to stop using religious freedom as a shield to allow it to infringe on the rights of others. That is not the purpose of religious freedom. It is time for the evangelical community to stop causing harm to others in the name of religious freedom. That is what it tried to do in this case and d it has done so over and over again in the name of religious freedom on the basis of dubious interpretations of ancient texts. The evangelical community can and should to better.