Background

I have previously written about this dispute, in a paper here from 2013 (yes, this dispute has been running longer than this blog!), and in later updates in blog posts here, here, here, here, and here. In brief, TWU has been running as an accredited University for many years and requiring students in other disciplines to commit to the Covenant. They succeeded in winning a similar challenge to the accreditation of their teachers in 2001 in the Supreme Court . On planning to start a law school, they had received approval from the usual government bodies certifying that their graduates would be relevantly qualified to practice, and indeed at no time in the proceedings was it seriously suggested that TWU graduates would be unsuitable lawyers. But the various Provincial Law Societies came under pressure to change their rules to decline accreditation, on the basis that the Covenant promises were not ones that could be made by homosexual persons who wanted to be sexually active. In the two cases before the Court, the relevant Societies had indeed changed their rules to deny accreditation; in the case of British Columbia the Court of Appeal there had overturned this decision on religious freedom grounds, but the Ontario Court of Appeal had upheld the decision of the Law Society. I won’t go back over the history of the court proceedings, which to some extent is summed up in my earlier posts. The issues that had to be considered by the Supreme Court of Canada in the two most recent decisions, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (15 June 2018; “LSBC v TWU“) and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (15 June 2018; “TWU v LSUC”) were (1) whether the relevant Law Societies had authority to condition an accreditation decision on issues of “discrimination”; (2) whether in doing so those Societies had impaired a right under the Canadian Charter of Rights and Freedoms enjoyed by the TWU community, especially religious freedom under art 2; and (3) if so, whether that impairment was nevertheless justified under a “proportionality” analysis.

The decisions

The majority decisions in both cases upheld the decisions of the Law Societies to refuse accreditation. (The reasoning in the LSUC case is almost identical to that in the LSBC case, so I will mainly refer to the British Columbia decision in future.) A majority “plurality” of Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ gave the main decision; McLachlin C.J. and Rowe J agreed with the majority outcome but differed on some points; and Côté and Brown JJ dissented. There were some important comments about how an administrative body like the Law Society should make decisions where a Charter right was at stake, most of which are very important for Canadian law but not of such direct interest in the “law and religion” space. (For what I think is a very good critique of the majority reasoning on how administrative bodies should make these human rights decision, see the Twitter thread by Howard Anglin here.)

Was there an interference with religious freedom?

The second and third issues are the key ones for religious freedom. On the question of whether the Law Society interfered with the religious freedom of the “TWU community”, an 8-1 majority said that it had. (And as a body given administrative functions by the Government, the Society was obliged to comply with the Charter, unlike TWU, who are a private body and are also given a specific exemption from applying with “sexual orientation discrimination” laws under the local British Columbia statute- see the BC Human Rights Code s 41, noted at para [335] of the dissent.) A couple of points worth noting here. I have referred, as the majority does, to the “TWU community”, because the court as a whole (even the dissenters) decide not to address the issue as to whether a corporate entity like TWU can have religious freedom Charter rights. Still, in a case like this, they identify individual prospective applicants to TWU who are affected by the decision not to accredit, so this issue did not need to be resolved. The other issue I hope readers are thinking is: how on earth did one judge conclude that there was noprima facie infringement of religious freedom here? That judge was Rowe J, and while his Honour makes some fine-sounding statements about the importance of religious freedom (see eg [209]), he adopts an approach which requires that the “underlying philosophy” of the right be identified. The danger here is that the right will be interpreted narrowly if the judge identifies a narrow underlying rationale, and this indeed is what we see. We are told that religious freedom relates to matters of “personal choice”, and is “really” about protection from coercion- see [212]-[213]. While both those elements are indeed relevant, they do not exhaust the reasons that religious freedom is protected! Restricting religious freedom in this way means that his Honour can conclude that, contrary to various statements made in the past in both Canada and elsewhere, a practice will only be protected as a matter of religious freedom if the practice is “required” by one’s faith, rather than merely being “motivated” by a sincere belief that the practice would be beneficial. He says:

[231]…Does it suffice for the purposes of s. 2(a) that the claimants sincerely believe that studying in a community defined by religious beliefs contributes to their spiritual development (M.R., at para. 70)? Or must the claimants rather show that they sincerely believe that doing so is a practice required by their religion (Multani, at para. 35)? The claimants have argued the former on the basis that the jurisprudence only requires that they have a belief that“calls for a particular line of conduct”, irrespective of whether that practice is “mandatory or perceived-asmandatory”: R.F., at para. 94, quoting Amselem, at paras. 47 and 56.[232] A careful reading of the jurisprudence does not support the claimants’ position in this appeal. As this Court set out in Amselem, the question of whether a belief or practice is objectively required by official religious dogma is irrelevant (para. 47). It suffices that the claimant demonstrate a sincere belief, “having a nexus with religion, which calls for a particular line of conduct”, irrespective of whether that “practice or belief is required by official religious dogma or is in conformity with the position of religious officials”: Amselem, at para. 56 (emphasis added). All that matters, then, is that the claimant sincerely believes that their religion compels them to act, regardless of whether that line of conduct is “objectively or subjectively obligatory”: Amselem, at para. 56. This is reflected in Multani, which states that all “an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion” (para. 35 (underlining emphasis added by Rowe J)).

I have quoted these comments at length because it is important that they be quickly rebutted. The quotes given relate to the different issue of whether a person’s sincerely held religious belief can be protected even if not shared with the mainstream of their religious tradition, or can be “objectively proven” from religious texts. The issue at stake in those previous decisions was not a comparison of a law “requiring” or “motivating” action. While words like “required” are used, they are not the purpose of the decisions. Hence it is important to note that this view expressed by Rowe J is a minority view, contrary to that of all other 8 members of the Court. As summarised by Côté and Brown JJ (who on this point did not dissent):

[317] [W]e reject our colleague Rowe J.’s proposed narrowing of the scope of activity protected by the right to freedom of religion (paras. 231-34). In our view, looking only to circumstances in which “the claimant sincerely believes that their religion compels them to act” does not begin to account for the scope of activities identified by this Court in Big M Drug Mart, at p. 336. As this Court recognized in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 47, “[i]t is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.”…[318] We agree with the analytical approach set out in the reasons of the majority (at paras. 62 and 63) and McLachlin C.J. (at para. 120): a s. 2 (a) Charter infringement is made out where a claimant establishes that impugned state conduct interferes, in a manner that is more than trivial or insubstantial, with their ability to act in accordance with a sincere practice or belief that has a nexus with religion (Amselem, at paras. 56 and 65; Multani, at para. 34; Loyola, at para. 134; Ktunaxa, at para. 68).

Here the views of the TWU community that the Covenant was an important tool in the process of providing a Christian education, were religious views, held sincerely and with an obvious “nexus” with their religion, and hence were worthy of protection, and had in fact been interfered with by the actions of the Law Society.

Was the interference justified?

However, when considering the question as to whether this interference was justified, under the Charter framework, there was a deep division of opinion. The Charter, art 1, says that Charter rights such as religious freedom are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This is usually seen as requiring a consideration whether the restriction is “proportional” to protection of some other significant aim- see para [80].. The majority found that the LSBC was entitled to take the view that the “public interest” required that the TWU course, because of the Covenant requirement, not be accredited. In a key summary of their reasons, they say:

[40] In our view, it was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBC could pursue its overarching statutory duty: upholding and maintaining the public interest in the administration of justice, which necessarily includes upholding a positive public perception of the legal profession. (bold emphasis added, italics those of the court)

These reasons are, with respect, not convincing. There are a number of law schools in Canada, so an admissions policy of one would not be a barrier to students applying to others. A key question here is: what sort of “harm” is done to LGBTQ students by saying that they cannot enrol in an evangelical law school whose moral commitments would usually be contrary to their preferred lifestyle? In a later attempted clarification the majority note:

[101] Being required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion.

It is hard to know where to start in critiquing these unfortunate statements. No-one is “required” to behave sexually in any particular way, unless they voluntarily choose to enrol in the TWU law school, knowing the genuine evangelical basis of the school. The reference to one’s “sexual identity” seems to imply some form of human right to have sex in the way one prefers. There is no such right. And why does the court refer to the (clearly erroneous) “public perception” that “freedom from religion” is some sort of right? There is no such right, and presumably the task of the Supreme Court is not to pander to “public perceptions” about the law, but to provide clear legal reasoning on these issues. (As Roberts has pointed out in her valuable article “Is There a Right to Be ‘Free from’ Religion or Belief at Strasbourg?” (2017) 19 Ecc LJ 35–49, the concept of “freedom from religion”, if understood in the popular sense of “a right to be free from exposure to manifestations of religion or belief in the public sphere”, is not a right supported by European religious freedom jurisprudence. See also [265] where the dissent also criticises the majority on this point.) But, arguing that these “public policy” reasons were significant, the majority explicitly decided that the infringement of the religious freedom rights of the TWU community was “minor”.

[102] In the end, it cannot be said that the denial of approval is a serious limitationon the religious rights of members of the TWU community. The LSBC’s decision does not suppress TWU’s religious difference. Except for the limitation we have identified, no evangelical Christian is denied the right to practise his or her religion as and where they choose. (emphasis added)

Even putting to one side the spectacle of the secular SCC Justices deciding for TWU what is, and is not, a “serious” limitation on their freedom, the comments here seem to completely ignore the “corporate ethos” that TWU wanted to develop as a Bible-based educational institution. True, denial of accreditation alone would not directly require any TWU students to behave contrary to their faith. But what it would mean is that it would dramatically lessen the chances of their developing a viable law school program with a Christian ethos, as, faced with the prospect of a law degree at the end of which they would not be admitted to practice, few students would enrol. Even McLachlin CJ disagrees with the majority on this point, noting that the LSBC’s actions amount to a serious impairment of religious freedom:

[134] In my view, the limits the LSBC’s decision imposes on the freedom of religion of members of the TWU community cannot be characterized as minor.. .it precludes members of the TWU community from engaging in the practice of providing legal education in an environment that conforms to their religious beliefs, deprives them of the ability to express those beliefs in institutional form, and prevents them from associating in the manner they believe their faith requires.

The dissenting judges agree:

[324] In our view, the LSBC approval decision represents a profound interference with religious freedom: it is a measure that undermines the core character of a lawful religious institution and disrupts the vitality of the TWU community (Loyola, at para. 67).

While McLachlin CJ and Rowe J agree with the majority that the “harm” caused to LGBTQ people justifies this interference, the dissenters disagree. While the majority stress the need for “diversity”, the dissenters note:

[326]… Accommodating religious diversity is in “the public interest”, broadly understood, and approving the proposed law school does not condone discrimination against LGBTQ persons…. [327]… [T]he majority fails to appreciate that the unequal access resulting from the Covenant is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity in a liberal, pluralist society. (emphasis added)

They go on to say:

[332]… But, and with respect, the majority points to no legally cognizable injury here. Rather, it affirms the LSBC decision which undermines secularism itself. Properly understood, secularism connotes pluralism and respect for diversity, not the suppression of full participation in society by imposing a forced choice between conformity with a single majoritarian norm and withdrawal from the public square. Secularism does not exclude religious beliefs, even discriminatory religious beliefs, from the public square. Rather, it guarantees an inclusive public square by neither privileging nor silencing any single view. (emphasis added)

Conclusion

This has only been a brief survey of a lengthy couple of decisions. But hopefully it has been enough to show that the decisions are fundamentally flawed. In a country with a Charter which explicitly protects religious freedom, why should an avowedly religious educational institution be precluded from ordering its community life in ways that reflect its religious commitments? No-one would be coerced into enrolling at TWU; indeed, it seems apparent that if some evangelical students who could sign the Covenant studied there, this would free up places at other law schools! Perhaps the ultimate “harm” which the Court seems concerned with is the fact that an educational institution would be affirming that some respectable Canadian citizens do not think that sex outside marriage, or homosexual sex, is in accordance with God’s will. This is, of course, to breach the now-popular “11th commandment” of secularism: “thou shalt not suggest that any sexual decisions by another person are wrong”. Those Christians who seek to be faithful to the Bible may find in the future similar rejection from the powerful guardians of public institutions. The dissenting judgement in this case provides, in my view, a good set of reasons which one may hope will bear some weight in future decisions on religious freedom, and allow Christians to live “peaceful and quiet lives in all godliness and holiness” (I Tim 2:2).