The Supreme Court has confirmed the right of provincial law societies to reject graduates of a proposed Christian law school on their requirement to refrain from having sex outside of heterosexual marriage.
In a much anticipated contest between religious freedom and equality, the majority of the court said that the limit of religious freedom was lower, much lower than "forced apostasy," as expressed by five the judges. By comparison, the effects on equality, if the school had been accredited, would have been large enough to threaten the integrity of the legal system, the judges said.
The court was asked if the law societies of British Columbia and Ontario were within their rights when they voted not to license the law school graduates proposed by Trinity Western University on their campus in Langley, B.C. In a pair of 7-2 judgments, the court said yes.
"Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, are intrinsically hostile to the integrity of the legal profession, "wrote five of the seven judges in the majority.
The ruling means that the law school will probably never open its doors, as long as it insists on maintaining its "community pact," an agreement that prohibits its students from sexual intimacy outside of heterosexual marriage. (Marriage between persons of the same sex is legal throughout Canada.)
Related: Ontario intervenes in case of a ban on sexual activities proposed by Trinity Western law
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The BC Ministry of Advanced Education withdrew its preliminary approval from the school when the provincial law society refused to accredit it. On Friday, he said in an e-mail that the Supreme Court ruling "seems consistent with the values of our government."
The school said on Friday it could reconsider the wording of the pact.
"We will review the community pact, I'm sure, "Earl Phillips, executive director of the proposed law school, told The Globe and Mail.
He called the court decision a major setback for religious freedom.
"This really means that diversity in Canada has no room for a small, autonomous university with Christian principles to operate a school of law."
Trinity Western, established in 1962, describes itself as Canada's largest liberal independent Christian institution, with an enrollment of 3,600. In 2012, he proposed to create a law faculty of 170 students, and quickly obtained preliminary approval from the Federation of Canadian Law Societies.
But the law societies of British Columbia, Ontario and Nova Scotia refused to prove it, arguing that doing so would back discrimination, thus harming the reputation of the justice system. (The Nova Scotia dispute was not before the Supreme Court, the provincial court of appeal sided with the school and the provincial law society chose not to fight against that decision)
The case split the lower courts and indicated a registry of 26 groups that intervened to present arguments and social context to the Supreme Court. Ontario's highest court, which had aligned itself 3-0 with the bar association, called the agreement "demeaning," comparing it to previous US laws. UU That discriminated against interracial couples. In sharp contrast, the Court of Appeal of B.C. He ruled 5-0 that the religious freedom of the school was at stake, while the issue of equality was less.
The Supreme Court of Canada ruled on Friday that provincial law societies have the right to deny accreditation to a proposed school of Christian law. A professor at Trinity Western University says she is "disappointed" by the ruling. The Canadian Press
But the majority of the Supreme Court saw it backwards. Because the school described the agreement not as necessary for the religious beliefs of its students, but simply for an optimal Christian learning environment, five judges said that the religious freedom limit was lower. In addition to undermining the school's argument, a possible Christian student, Brayden Volkenant (part of the case at the school) said he did not know if he had attended TWU, but that he would have "appreciated the option."
"The future law students of TWU effectively admit that they have much less at stake than the plaintiffs in many other cases that have appeared before this Court," said the five judges in a joint decision. (They were Supreme Court President Richard Wagner, Judge Rosalie Abella, Judge Clément Gascon, Judge Andromache Karakatsanis and Judge Michael Moldaver.) "Denying someone an option that he would simply appreciate would certainly not come with 'forced apostasy'"
A sixth, Judge Malcolm Rowe, went even further. By law, he pointed out, the school is open to all, and the pact, therefore, would restrict non-believers. Therefore, he said, the case falls outside the scope of freedom of religion. In contrast, Beverly McLachlin, the now retired chief justice, in the final decision of her 28-year career in court, said the limit on freedom of religion was important, but still justified in the interest of equality.
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The two dissenting judges, Judge Russell Brown and Judge Suzanne Côté, said that the law of the society has the authority to decide solely on the adequacy of the legal program of a school. They also said that the decisions of legal societies interfered with religious freedom and were contrary to the duty of state neutrality.
"The unequal access resulting from the Pact is a function of accommodating religious freedom, which in turn promotes the public interest by promoting diversity in a liberal and pluralistic society," they wrote
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Paul Schabas, treasurer of the Law Society of Ontario, said the court had affirmed the importance of promoting equality in the public professions.
What the ruling means for future cases of freedom of religion was a matter of contention among legal scholars on Friday.
Richard Moon, a law professor at the University of Windsor who specializes in religious freedom, said the ruling referred to "what space should be given to a religious organization to operate according to its own standards."
Dwight Newman, who teaches at the University of Saskatchewan Law School, said in a tweet that the court had "destroyed" freedom of religion by linking it to a belief in necessary practices. Others said the ruling depended on its context and involved a law school seeking accreditation.
The ruling suggests that the court has changed its views over time. In 2001, the court ruled 8-1 in favor of Trinity Western faculty receiving accreditation, despite the requirement that students sign a document stating that the Bible condemns homosexuality.
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