The Cold Chill of the Legal Profession’s Rejection of Religious Freedom

Cold winds blew on Trinity Western University’s (TWU) Law School last week. On Thursday April 24, the Law Society of Upper Canada (LSUC) voted 28-21 against TWU’s accreditation. On Friday April 25, the Nova Scotia Barrister’s Society (NSBS) followed Ontario’s leading and voted 10-9 to accept TWU only if it exempts law students from signing the Community Covenant; or it amends the Community Covenant not to discriminate.  They assert that TWU is discriminating against the LGBTQ community because, as an evangelical Christian university, it requires students to agree not to be engaged in sexual activity that falls outside of the definition or confines of a one-man-one-woman marriage.

Further, it is evident that a TWU “victory” of the BC Law Society’s decision a couple of weeks ago is now being threatened by a new initiative to overturn that decision. The BCLS will review its decision to approve the TWU law school if five percent of its members call for the review. A special general meeting will be called within 60 days of the request to consider “a resolution directing the Benchers to declare . . . that TWU is not an approved faculty of law.”

Given the precedents in Ontario and Nova Scotia, the cold winds are set to blow on the June 27 meeting of the Law Society of New Brunswick, which will decide if TWU Law School meets the academic requirements for admission to the New Brunswick Bar.

Dangerous Precedent

These developments against accepting graduates of TWU Law School set a dangerous precedent that all Canadians should be concerned about.

First, the legal profession has disregarded existing law on religious freedom as enunciated by the Supreme Court of Canada. The LSUC and NSBS have acted in the manner they think the law ought to dictate—not according to what the law actually requires. In 2001, the Supreme Court of Canada decided that the BC College of Teachers was offside in refusing to accredit TWU’s education degree because the BCCT did not approve of TWU’s requirement that students not engage in what TWU defines as immoral sexual activity. The Supreme Court said in that case,

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.[1]

We have arrived at a point in our society where influential legal bodies in this country ignore a Supreme Court of Canada decision.

When I became a lawyer in Ontario, I had to take the following oath:

I accept the honour and privilege, duty and responsibility of practising law as a barrister and solicitor in the Province of Ontario. I shall protect and defend the rights and interests of such persons as may employ me. I shall conduct all cases faithfully and to the best of my ability. I shall neglect no one’s interest and shall faithfully serve and diligently represent the best interests of my client. I shall not refuse causes of complaint reasonably founded, nor shall I promote suits upon frivolous pretences. I shall not pervert the law to favour or prejudice any one, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.[2]

Note the phrase “I shall champion the rule of law and safeguard the rights and freedoms of all persons.” The current law is clear: TWU has the right to have a religious position on marriage. However, the opponents of TWU’s law school disagree. Rather than accept the current state of the law, the opponents have decided to administer the current law as if it had already been changed to meet their interpretation. That is not how the law works. You change the law first—by the appropriate authorities—and then you administer it accordingly.

The normal route for those who conscientiously oppose a law is to either convince the lawmaking body to change the law or face the consequences of civil disobedience. In this current matter, the legal profession has decided that the law is inconsequential and can be disobeyed with impunity. It has turned the practice of law upside down; we have a legal profession governed not by law but by emotion. Whenever this has happened in the past, it has proven to be a harbinger of trouble.

Moreover, it is also very troubling that the opponents have rejected the mobility rights of lawyers throughout Canada. After years of painstaking work in assembling a Federation of Law Societies that would enhance the ability of lawyers to move from one jurisdiction to another, the LSUC and NSBS have decided that when it comes to religious beliefs and practices of TWU graduates, mobility can go out the window.

The opponents, rather than staying true to their oath, have used the practice of law against TWU to wear the university down. Never before in the history of this country have we seen a legal assault of this magnitude against a religious institution.

TWU has already passed the penetrating review by the Federation of Law Societies and was approved. That should have ended the matter. The opponents said it was not enough and urged that each individual law society have the “courage” to do its own separate review.[3] I submit that what we are witnessing is not courage but unprecedented legal bullying. It is the same tactic big multinational corporations employ to push the little guy aside: wear them down. Eventually, the targeted individual or entity gives up. Despite the BC Law Society’s exhaustive examination of TWU’s law school, it approved the school. The LSUC’s 28-21 decision is a major setback and will ultimately mean years of further litigation as the case takes the long road to the Supreme Court of Canada. This is, of course, what the opponents wanted in the first place. For example, the Nova Scotia Human Rights Commission (NSHRC) argued that the Nova Scotia Barristers’ Society should refuse to recognize TWU’s law school and thus trigger a judicial review with the expectation that the Supreme Court of Canada will rehear the same issues it decided on in 2001 and this time rule against TWU.[4]

As the New Brunswick Law Society does its own “independent” review, there can be no doubt that TWU opponents there will be emboldened by their colleagues in Ontario and Nova Scotia. Already the opponents are mobilizing to overturn the BC Law Society decision.[5] In addition, a Christian gay person who feels the law school will discriminate against his rights when he plans to apply to the school has started a separate legal action.[6]

We are clearly headed to the Supreme Court of Canada. When there, we will see whether that Court will continue to be the jealous guardian of religious freedom that it claimed in the Marriage Reference Case[7] in 2004 and whether the protections noted in the federal Civil Marriage Act’s preamble holds true. The preamble stated:

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage.[8]

That the legal profession has disregarded existing law on religious freedom as iterated by the Supreme Court of Canada is just the first reason Canadians should be concerned.

Second, there are no TWU law graduates as of yet; the entering class will not be until 2016, which means that we cannot expect the first TWU graduate until 2019, but already the LSUC AND NSBS has argued that the future TWU graduate will not have the requisite skills to practise law, because he or she signed on to a covenant that upholds the sacredness of marriage between one man and one woman. If such prospective students are to be barred from the practice of law in Ontario, then nothing will stop them from refusing to renew licenses for those of us who not only hold to the same views as TWU but also happen to be graduates of undergrad Christian colleges. But it may not stop there. Perhaps the LSUC and the NSBS will soon prohibit law schools from accepting any graduates of Christian universities because of their religious beliefs and views on marriage.

Third, with the denial of TWU students, the LSUC and NSBS have set a precedent for other professional bodies to ignore the Charter right of religious freedom. We should not be surprised if the BCCT decides that now is the opportune time to reject the accreditation of TWU’s education program and force a rehearing of the 2001 case. Bible school graduates of social work, health-related fields, etc., all legitimately fear the new inquisition about to fall on this country.

Fourth, LSUC and NSBS’s message is that Canadians who believe marriage to be exclusively between one man and one woman are personae non grata in the practise of law. As I have argued in a previous post, we are now facing the possibility that a religious test will determine whether a person can practise law. In the past, ethnic and religious minorities were discriminated in the practice of law.[9] It now appears we are about to face similar discrimination.

Fifth, the LSUC and NSBS do not respect the diversity of views on marriage in this country. For the LSUC and NSBS only one view of marriage is valid and legitimate. However, the LSUC and NSBS take a veritable leap by demanding that religious schools not to be permitted to practise their faith unless their tenets are congruent with that particular view. Furthermore, let’s consider the direct implication of such a demand: if an evangelical Canadian faces discrimination because of his or her religion, say in the workplace, are the lawyers who supported the LSUC and NSBS decision capable of representing them? Should we now doubt the ability of gay lawyers to serve our needs?

Sixth, the controversy over the accreditation of the TWU law school is a controversy about the future of Canada and its commitment to pluralism. It is also telling about the legal academy’s current understanding of religious freedom and what that will mean for the future of religious communities. Under the guise of diversity, ironically, the legal academics want to see diversity removed. For example, consider the statement Windsor Law posted on Facebook on March 12, 2014:

We are pleased to announce that today, at Faculty Council, Windsor Law unanimously passed a motion that states the LSUC should make accreditation of the TWU law program for practice in Ontario conditional on the removal of the discriminatory clauses in their community covenant. A great day for Windsor Law standing up for equity and diversity in the legal profession![10]

Opponents of the proposed TWU law school are apparently unable to recognize the irony of refusing legal accreditation to TWU in the name of “standing up for equity and diversity in the legal profession.” What would create more “equity and diversity” in the legal profession: (1) banning one Christian law school and allowing for only the secular law schools or (2) allowing a Christian law school to teach along with the secular law schools?

The diversity of Canada is now endangered. Multiculturalism can no longer deliver what the country has once promised. The following statements of the Supreme Court are ringing hollow right now:

Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.[11]

Twenty years ago the LGBTQ community campaigned for the right to marry.[12] This was achieved in 2004 by the Supreme Court of Canada[13] and in 2005 with the passage of the Federal Marriage Act.[14] Canada went from one non-neutral state-backed understanding of marriage—namely, the traditional understanding of marriage as exclusive to one man and one woman in a conjugal relationship—to a neutral understanding of marriage as between “any two persons.”

However, the opponents of TWU no longer find this neutral definition acceptable. The demand now is for another one non-neutral state-backed understanding of marriage of “any two persons.” They have gone further to pressure the state to enforce that understanding of marriage on every institution across the country, even religious institutions such as TWU.

What will stop advocacy groups from gaining enough momentum to prevent students of Christian elementary, secondary and post-secondary schools from obtaining their provincially issued diplomas? To deny TWU a law school based on its definition of marriage also denies the right of Christians to organize themselves into communities of faith to operate their ministry within their particular faith perspective—even though the Canadian Charter promises to protect religious practice.

This has been a long, cold winter in more ways than one. A cold chill is blowing across this country as the activists against religious autonomy on matters of sexual morality have dealt a massive blow to religious freedom. If we didn’t realize that our religious freedom was fragile before the Law Society of Upper Canada and the Nova Scotia Barrister’s Society decisions against TWU—we do now.

Even a Supreme Court of Canada decision only 10 years old was not enough of a firewall against a very determined opposition who are adamant that when it comes to marriage there is only one acceptable view. The legal profession is telling the religious community that there is no tolerance for a different religious opinion and practice in that regard. All must agree to the newfound truth as determined by the legal academia.

If nothing else, the visceral reaction that Trinity Western University has had to face from the legal profession—the misrepresentation of their position, the outright vilification of the institution itself—is proof positive that there is an unequivocal need for a Christian law school in Canada now more than ever before. Given the strident opposition of the law schools against those who hold to religious beliefs and practice of the traditional marriage, what will this mean for those religious students who attend secular schools but who also hold to a traditional view of marriage? How will they be protected from the secular opponents in such settings?

Further, those of us lawyers who have expressed views and written letters and articles in favour of TWU can expect just as fierce opposition should we ever dare to seek public service in the judiciary or other public office. We would be facing opposition not because of something we have done wrong but rather because of a law society’s fear that we might do something wrong in the future. Our religious views are now to be seen as a liability. It is becoming hard to imagine that religious legal professionals who believe in and practise traditional marriage will be seriously considered for appointments in law schools. Indeed, the LSUC and NSBS and other societies campaigning to reject TWU’s proposal are failing to consider the dire but logical consequences of their stance; their decision affects much more than simply the existence of a law school.

The agenda, actions and assertions of the Law Society of Upper Canada and the Nova Scotia Barristers’ Society do not bode well for a group that is supposed to stand up for justice. Canada’s legal community must recognize the unprecedented injustice against religious freedom that the LSUC and NSBS’s actions represent and the urgency with which we must act to prevent the erosion of freedom that would commence as a result.

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[1] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, at para. 25.

[2] The Law Society of Upper Canada, “Licensing,” p. 24, http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485805. Emphasis added.

[3] Elaine Craig, “Law Societies Must Show More Courage on Trinity Western Application,” The Globe and Mail,December 18, 2013, http://www.theglobeandmail.com/globe-debate/law-societies-must-show-more-courage-on-trinity-western-application/article16023053/

[4] Lisa Teryl (former Legal Counsel, Nova Scotia Human Rights Commission currently: https://www.terylscott.ca) to Executive Committee and Council Members, “NSBS Request for Submissions Regarding TWU’s Application for a Law School,” February 10, 2014, http://nsbs.org/sites/default/files/ftp/TWU_Submissions/2014-02-10_NSHC_TWU.pdf, at para. 12.  https://www.terylscott.ca

[5] “Trinity Western Law School Could Face New Law Society Vote,” CBC News, April 17, 2014, http://www.cbc.ca/news/canada/british-columbia/trinity-western-law-school-could-face-new-law-society-vote-1.2613783.

[6] James Bradshaw, “B.C. Government Sued Over Approval of Trinity Western Law School,” The Globe and Mail, April 14, 2014, http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/lawyers-challenge-bc-approval-of-trinity-western-law-school/article17957304/.

[7] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2196/index.do.

[8] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20, online: http://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html.

[9] See for example, Mario Nigro and Clare Mauro , “The Jewish Immigrant Experience and the Practice of Law in Montreal, 1830 to 1990,” Mcgill Law Journal / Revue De Droitde Mcgill, (1990) vo. 44, 999. Online: http://lawjournal.mcgill.ca/userfiles/other/3792586-44.NigroMauro.pdf.

[10] Windsor Law’s Facebook page,March 12, 2014, https://www.facebook.com/UWindsorLaw/posts/740134786031850.

[11] TWU 2001, at para. 33.

[12] Sylvain Larocque, The Story of a Canadian Social Revolution: Gay Marriage (Toronto: James Lorimer & Co., 2006).

[13] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79.

[14] Civil Marriage Act. S.C. 2005, c. 33. Assented to 2005-07-20.