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The Trinity Western Logic Of Canada’s Supreme Court

August 6, 2018 Frontpage No Comments

By MIKE MANNO

Trinity Western University (TWU) is Canada’s largest independent Christian university. It began in 1962 as a junior college and now has 42 undergraduate and 17 graduate degree programs.
As a Bible-based Christian organization TWU is governed by six core values: the authority of Scripture; pursuit of faith-affirming learning; having a transformational impact on the culture; servant leadership; and excellence in education. Its website clearly states:
“At Trinity Western, students, staff, faculty, and administrators are all invited and encouraged to deepen their understanding of what it means to be disciples of Jesus Christ, to practice such discipleship, and to sustain and help others to be and become disciples. They strive to act justly, love mercy, and walk humbly with our God.”
In 2013 the British Columbia minister of advanced education, the Law Society of British Columbia, and the Federation of Law Societies of Canada approved the school’s plans for a new law school which the university began to implement. Shortly thereafter, the minister of advanced education revoked his approval and the accrediting bodies with the lawful authority to regulate, the Law Society of British Columbia and two other regional commissions, decided not to allow TWU law graduates to practice law.
The objection by the accrediting bodies concerned a “Community Covenant” that students and staff at TWU must sign in which they agree to abide by biblical principles and conform to basic Christian moral standards and to avoid “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
TWU brought suit in three provinces and the provincial appeals courts split, two supported TWU’s claim of religious freedom and one was against it. Thus the case went to the Supreme Court which issued opinions in two cases upholding the right of the governing bodies to bar TWU graduates from practicing law.
I’m going to try something different with this case. The original PDF file for this, the main decision, was 195 pages. I’ve tried to edit it down to approximately 900 words so you can get a flavor of the thinking of those who appear to oppose traditional values and seek to remove them from society at large. In doing so I’ve eliminated all the side and procedural issues as well as all the citations and other legal references. I have left the original paragraph numbers in case you’d like to do some further research.
This is not a textbook quality edit; it is only presented for the limited purpose of giving you an idea how these decisions are justified.
As you read, look at how the court balanced its finding that the school’s religious rights were being infringed (paragraph 75) but rationalized it was not enough to sustain the school’s argument (87-88); see how the court balanced this infringement against another group’s concerns (40, 93). Note also that this is clearly a private institution and those attending did so voluntarily with full knowledge of what the university expected of them and that nothing in the school’s requirements inhibit anyone else’s rights to enroll in another law school.
Yet while enrollment at TWU and acceptance of the “Covenant” were voluntary, the court found the school’s requirement was “to restrict the conduct of others” (99) and to impose its religious beliefs on others (103).
Additionally, note which was determined to be the greater value: religious freedom or diversity (93). Finally, keep in mind that this is a new school which would increase — not decrease — the number of students who could study law and how that was never considered by the majority.
The case was decided June 15 by a 7 to 2 vote. There were five justices that signed this opinion, two that filed concurrences, and two dissents. Here goes.

+ + +

[1] Trinity Western University (TWU), an evangelical Christian postsecondary institution, seeks to open a law school that requires its students and faculty to adhere to a religiously based code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
[2] At issue in this appeal is a decision of the Law Society of British Columbia (LSBC) not to recognize TWU’s proposed law school.
[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.
[42] Eliminating inequitable barriers to legal education, and thereby, to membership in the legal profession, also promotes the competence of the bar and improves the quality of legal services available to the public.
[43] As well, the LSBC was entitled to interpret the public interest in the administration of justice as being furthered by promoting diversity in the legal profession — or, more accurately, by avoiding the imposition of additional impediments to diversity in the profession in the form of inequitable barriers to entry. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar.
[75] By interpreting the public interest in a way that precludes the approval of TWU’s law school governed by the mandatory Covenant, the LSBC has interfered with TWU’s ability to maintain an approved law school as a religious community defined by its own religious practices. The effect is a limitation on the right of TWU’s community members to enhance their spiritual development through studying law in an environment defined by their religious beliefs in which members follow certain religious rules of conduct. Accordingly, their religious rights were engaged by the decision.
[85] The LSBC’s decision also reasonably balanced the severity of the interference with the [Canadian Charter of Rights and Freedoms’] protection against the benefits to its statutory objectives. The LSBC did not deny approval to TWU’s proposed law school in the abstract; rather, it denied a specific proposal that included the mandatory Covenant.
[87] First, the limitation in this case is of minor significance because a mandatory covenant is, on the record before us, not absolutely required for the religious practice at issue: namely, to study law in a Christian learning environment in which people follow certain religious rules of conduct. The decision to refuse to approve TWU’s proposed law school with a mandatory covenant only prevents prospective students from studying law in their optimal religious learning environment where everyone has to abide by the Covenant.
[88] Second, the interference in this case is limited because the record makes clear that prospective TWU law students view studying law in a learning environment infused with the community’s religious beliefs as preferred (rather than necessary) for their spiritual growth.
[92] It is clear that the decision not to approve TWU’s proposed law school significantly advanced the LSBC’s statutory objectives.
[93] First, the decision advances the LSBC’s relevant statutory objectives by maintaining equal access to and diversity in the legal profession. While TWU submits that it “is open to all academically qualified people wishing to live and learn in its religious community,” the reality is that most LGBTQ people will be deterred from applying to its proposed law school because of the Covenant’s prohibition on sexual activity outside marriage between a man and a woman.
[98] LGBTQ students enrolled at TWU’s law school may suffer harm to their dignity and self-worth, confidence and self-esteem, and may experience stigmatization….The public confidence in the administration of justice may be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity for three years in order to receive a legal education.
[99] The TWU community has the right to determine the rules of conduct which govern its members. Freedom of religion protects the rights of religious adherents to hold and express beliefs through both individual and communal practices. Where a religious practice impacts others, however, this can be taken into account at the balancing stage. The effect of the mandatory Covenant is to restrict the conduct of others.
[100] As this Court has held, state interferences with religious freedom “must be considered in the context of a multicultural, multi-religious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs.”
[103] The refusal to approve the proposed law school means that members of the TWU religious community are not free to impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm.
[104] Given the significant benefits to the relevant statutory objectives and the minor significance of the limitation on the Charter rights at issue on the facts of this case, and given the absence of any reasonable alternative that would reduce the impact on Charter protections while sufficiently furthering those same objectives, the decision to refuse to approve TWU’s proposed law school represents a proportionate balance.
[106] The resolution of the LSBC to declare that TWU’s proposed law school not be approved is restored.

+ + +

So there in a nutshell, for good or evil, is the reason a Christian university’s graduates may not practice law in Canada. Apparently, insisting on traditional values and morality no longer comports with Canadian values. Don’t worry, folks — it’s coming here.
(You can contact Mike at DeaconMike@q.com.)

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