Recalibrating Canada’s scales of justice

The Supreme Court of Canada ruled Friday that a law association acted “reasonably” when it declined to accredit a proposed Christian law school because of its Biblically based conduct code. The 7-2 majority on the court ruled that Trinity Western University’s requirement that all students and faculty commit to Biblical sexual ethics in singleness and marriage discriminates against prospective LGBT students, reducing the “diversity” of the legal profession.

But dissenting Justices Suzanne Côté and Russell Brown said the Law Society of Upper Canada, which accredits Ontario’s law schools and certifies their graduates, acted outside the purview of its mandate in its effort to create and maintain a “diverse” pool of attorneys.

“The decision not to accredit TWU’s proposed law school is a profound interference with the TWU community’s freedom of religion,” Côté and Brown wrote. “It interferes with that community’s expression of religious belief through the practice of creating and adhering to a Biblically grounded covenant.”

The majority opinion recognized the law society’s decision conflicted with the Canadian Charter of Rights and Freedom but said the suppression of religious liberty “is of minor significance” compared to the public benefit of ensuring “equal access to and diversity in the legal profession.”

The proposed law school would have been another extension of Trinity Western University’s graduate program. The university, located in Langley, British Columbia, earned approval from six of Canada’s eight provincial law societies but postponed opening until its students could be recognized nationwide. The court heard arguments last year in two cases involving the dissenting provinces, British Columbia and Ontario, the country’s most populous.

The Canadian high court’s decision puts into stark relief the religious liberty protections provided by the U.S. Constitution, compared to the Canadian Charter, enacted in 1982. While America’s founding document provides a standard by which all other laws are measured, Canada’s Charter provides a “framework” for legislation but does not supersede it, said Brett Harvey, an attorney with Alliance Defending Freedom.

Without a superseding law, a court can decide for itself whose rights take precedence. The decision against TWU implies the school’s moral code is tantamount to an “impermissible bias” that cannot stand, a stance that has much broader implications, Harvey said.

“Why does the logic of the Supreme Court of Canada stop at lawyers? What if they produce an ideological litmus test for counselors, or teachers, or doctors, or anyone they license?” Harvey asked. “They’ve given themselves authority to purge professions of people who don’t think the way the government wants them to think about matters that are completely unrelated to their profession.”

This isn’t the first time secular agencies have tried to undermine the university because of its Christian values. But the last time the school had to defend its rights, the Canadian Supreme Court still believed religious liberty trumped unsubstantiated charges of discrimination. When the British Columbia College of Teachers (BCCT) refused in 2001 to accredit TWU’s new teachers college because of its “discriminatory” conduct code, the high court ruled 8-1 in the school’s favor.

The Supreme Court said “it was not within the BCCT’s jurisdiction to consider whether the program follows discriminatory practices. There was no reasonable foundation to support the BCCT’s decision with regard to discrimination.”

Seventeen years later, the same court reversed its position. While studying law “in a Christian environment in which people follow certain religious rules of conduct” may be preferred, it is not “necessary” for TWU’s prospective students, the court ruled.

Cultural forces in the United States pushing similarly to prevent people from acting on their faith in the public square have had some success. Recent decisions redefining terms in order to craft rulings favorable to homosexuals and transgender persons are “disconcerting,” Harvey said. But he remains optimistic America will not follow Canada’s lead.

“The Constitution still says what it said in 1789,” Harvey noted. “The First Amendment still reads the exact same way.”