Trinity Western University and the Supreme Court of Canada

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On June 15, the Supreme Court of Canada (SCC) upheld the decisions of two provincial law societies to deny membership to graduates from Trinity Western University (TWU) Law School. The decisions of the Supreme Court and these law societies are based on their belief that TWU’s community covenant (that includes a commitment to sexual intimacy only in the context of heterosexual marriage) is discriminatory towards LGBTQ people.

Especially for a Christian denomination that has such a high value regarding the integration of faith and education in our national landscape, this week’s decision from the Supreme Court felt significant. Personally, it added to the feeling within me that our culture slowly and increasingly challenges the framework of our faith.

The SCC decision is deeply complex and nuanced, and was not unanimous. Nevertheless, the majority decision has raised concerns about religious freedom and diversity that require wise discernment and calm vigilance.

With this in mind, we particularly appreciate this commitment from our partner, the Evangelical Fellowship of Canada President, Bruce Clemenger:

“We will continue to seek a robust pluralism that includes the participation of religious institutions and communities in public life, that promotes respect and tolerance of all including religious minorities, and affirms the contributions of religious institutions and communities to our society” (from a June 15 EFC press release).

Christians most certainly differ in their responses to questions of religious freedom, human rights, and LGBTQ inclusion. For many, the potential implications of this SCC decision evoke tensions and even fear. Pursuing a robust pluralism will require a long-term commitment to respectful and constructive engagement in the public sphere that avoids anxious rhetoric, and demonstrates a confident Christian commitment to the good of all.  

I therefore ask you to join me in two ways. First, let’s pray. Please pray for our country’s leaders that they may have wisdom as they make decisions that have an impact on all citizens. Pray for our church leaders as they discern how to speak about this issue right now in a way that is edifying for their members and a witness in their communities. And pray for our church members that they may engage in respectful and constructive dialogue and rest assured in their knowledge that God is at work.

Second, be reminded that as a Reformed tradition we set ourselves to the engagement of our faith in the public square.

Darren Roorda, 
Canadian Ministries Director

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This is how Christianity Today reported this decision --characterized more as a loss for religious freedom in Canada by spokespersons and reflected in the report.

 

 

GLEANINGS

Canada’s Supreme Court Rejects Country’s Only Christian Law School 

Trinity Western University’s loss over its LGBT stance is seen as a blow to religious freedom.

KATE SHELLNUTT

 JUNE 15, 2018 12:09 PM

Trinity Western University has lost a years-long legal fight to launch what would be the only Christian law school in Canada.

 

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The Supreme Court of Canada considered a pair of appeals cases involving regional law societies that refused to accredit the Trinity Western program due to the evangelical institution’s student covenant, which prohibits sex outside of traditional marriage.

In Trinity Western University v. Law Society of Upper Canada and Trinity Western University v. The Law Society of British Columbia, justices sided 7-2 against TWU, calling it “proportionate and reasonable” to favor the rights of LGBT students over the school’s religious convictions.

Some legal experts say Friday’s decision has essentially “gutted” religious freedom protections. It also quashes the future of the school, which was slated to open as early as 2019 if the ruling had been in its favor, since Canadian law schools require the approval of provincial law societies to operate.

“Without question, the Trinity Western community is disappointed by this ruling,” saidEarl Phillips, executive director of TWU’s proposed law school. “However, all Canadians should be troubled by today’s decision that sets a precedent for how the courts will interpret and apply Charter rights and equality rights going forward.”

According to CBC News:

The majority judgment said the covenant would deter LGBT students from attending the proposed law school, and those who did attend would be at risk of significant harm.

It found the public interest of the law profession includes promoting equality by ensuring equal access, supporting diversity within the bar and preventing harm to LGBT students.

“In our respectful view, the [law societies] decision not to accredit Trinity Western University's proposed law school represents a proportionate balance between the limitation on the Charter right at issue and the statutory objectives the [law societies] sought to pursue,” it reads.

The ruling has come as a blow to Trinity Western, one of 11 universities belonging to Christian Higher Education Canada, and fellow evangelicals in Canada. Its program would have been one of just three in the country to offer special training in charity law.

“While many have tried to frame this case as a clash between religious freedom and equality rights, it needn’t be so. Charter rights are not competitors in a zero-sum game,” stated the Christian Legal Fellowship of Canada. “They can be fully exercised in co-existence, as the Supreme Court recognized in the first [Trinity Western] case in 2001,” when the school went before the Supreme Court to defend its teaching college against similar concerns.

“This is a very disappointing outcome,” the Council for Christian Colleges and Universities (CCCU) tweeted. “Societies are stronger when all people and their beliefs and the institutions they form are respected. #ChristianHigherEd changes lives for the better. This is a loss for all people of goodwill.”

Christians have argued that the freedom to live out their convictions and beliefs actually benefits Canadian society as a whole.

“Institutions ought to have the right to define aspirations that come out of deeply held values and to live them consistently in community,” said Ray Pennings, head of the Christian think tank Cardus. “That’s what a pluralist society looks like.”

Cardus’s law program director Andrew Bennett released a statement saying:

The Supreme Court of Canada has consigned the fundamental right to freedom of conscience and religion to second class status with its decision on Trinity Western University. This upholds a narrow understanding of diversity in which people of faith are relegated to the private sphere.

Canadians of all faiths will have less latitude to publicly dissent from majority opinions on social issues that clash with their beliefs. Now more than ever we need a robust and clear defence of freedom of conscience and religion and public faith.

 

Thank you for your post Pastor Darren. 

I've always been grateful for Canada's charter or rights and freedoms.  Canada has become a model in the world for rights and freedoms, particularly those laws which protect it's citizens from the injustices associated with discrimination in its many forms. 

I believe it is important that we in the Christian community who engage in reconciliation with activism also take care to walk in the shoes of those  whose experience is one of tainted by discrimination and the threat of violence. 

Trinity Western University 's covenant expresses a profound alignment and fidelity to its evangelical faith commitments. Yet in the context of a law school and the legal profession its stance remains at odds with the rights of others in society and perhaps to the interests of society as a whole.  

This case, like those  involving medically assisted dying in Canada serve to illustrate that we Christians needs to do a far better job  explaining why it is that our  rights claims as a matter of conscientious objection and religious commitment supercede the rights claims  and needs of those whose creedal commitments and lifestyles  happen to be different than ours. 

Who of us wants to live in a society where a faith community can so alter the legal profession as to  have it's members advocate only for those who share their core values and creedal commitments.   I hate to imagine a world where lawyers who are Christian would not advocate for the rights of the LGBT community as afforded them under Canada's charter of rights and freedoms.  Surely this is the logical outcome if Trinity Western University were to be granted standing in the light of its creedal requirement. 

I applaud the decision of the Supreme Court of Canada and hope that Trinity Western withdraws its creedal requirement and thus moves forward in establishing a law school whose understanding of what it means to be a Christian and a lawyer employs a perspective and approach to law which respects both the obligations and opportunities of life in a pluralist society. 

All of us ought to be grateful that members of the LGBT community in Canada can sleep at night knowing that their rights are respected under the Charter and Canadian law.   Those of us who appreciate Christian schools and Christian organizations understand that we drink from that same fountain of protections.  However, as the Supreme Court of Canada correctly points out that protection and freedom has limits to ensure that the common good is upheld. 

I think your post paints altogether too dark picture of the ruling and the state of freedoms we Christians enjoy in Canada.  A victim approach may not serve us well particularly if we want to do more than advocate just for ourselves.   Why would we Christians feel the need to bind the conscience of everyone? 

The country of Canada is not Christian indeed it is made up of a vast number of communities who require equal protection under the law.  And I doubt that protection can be achieved by abrogating the rights of some entirely especially the opportunity to obtain a  legal education that truly  upholds the very principles of Canadian law. 

 

Community Builder

Thanks, Mr Koning, for a gracious written response of challenge and disagreement. In the forum that the online world provides, tis kind of well-written response is a gift. It would have been so easy to go to negative banter, but instead you wrote so beautifully and thoughtfully. THANK YOU.

Because this is the kind of thing in which I would rather speak to you in person, I will not write a tonne. i will restrict myself to one comment of disagreement. Besides, I love the majority of what you write and so I would not disagree much, at all. ANd the point Idisagree with is that TWU and its graduate lawyers would somehow be at a loss to representing or being on the side of a portion of the population they disagree with.

After all, you write:

Who of us wants to live in a society where a faith community can so alter the legal profession as to  have it's members advocate only for those who share their core values and creedal commitments.   I hate to imagine a world where lawyers who are Christian would not advocate for the rights of the LGBT community as afforded them under Canada's charter of rights and freedoms.  Surely this is the logical outcome if Trinity Western University were to be granted standing in the light of its creedal requirement. 

 

Fundamentally, I think this is wrong. The covenant they wanted to write was an internal matter that does not necessarily lead to such an outcome.  I think it  would be very possible for the lawyer graduates to still work for the rights of those in the LGBTQ community. In the same way we as Christians can work, serve and love those are in disagreement with us on many levels, so too these lawyers. I fight for the rights of my atheist neighbour. We genuinely seek the good of muslim refugees/immigrants.  Jesus showed grace to the Roman centurion...and on the list goes. One's internal covenant does not preclude them from loving their neighbour. And in the work of TWU, I suspect that their desire for an internal covenant for their students would not necessarily lead to the place you indicate.

 

Anyway, there is so much to think about in light of this issue. And it is good for us to be engaged in it.

 

Thanks again for your response.

Thank you for your response 

I wished you would have written more as to how what I write  on a specific point is fundamentally wrong. You do not explain how  my position is wrong and limit your comments to sharing your firm belief that it is possible for TWU to maintain its internal requirement of applicants  and thus not lead to the outcome I describe.  The Court clearly found TWU's creedal requirement discriminatory when set in the context of legal education.  The ruling is rather well reasoned. 

I would urge denominational leaders such as yourself to formulate a position which is rich in its specific claims.  Productive dialogue requires it lest the Christian Reformed denomination be perceived, as I'm afraid it sometimes is, as reactionary if not fringe.   I imagine that our tradition offers developed thinking on this matter. Surely we have voices within the CRC of Canada who are members of the legal profession who might assist you and others to   comment in an even more informed way. 

I do remember the informal  litmus tests for a good Christians.  I recall a time where  whether or not a Christian Reformed family sent their children to the church affiliated christian school was key to the understanding of whether or not they were good members.  I remember that as being profoundly  hurtful to many and counter productive to spiritual health of families and the congregations to which they belonged.   TWU seems entrenched in the same thinking and practice.  Our community has abandoned such informal enforcement long ago and perhaps TWU could learn from us. 

I appreciate the manner in which you engaged me in this blog. 

 

Community Builder

I have been a practicing attorney in Oregon for nearly 40 years now and count a number of gay persons, practicing and not just in orientation, as my past and present clients.  I have, and have had, absolutely no issue with providing them with representation that results in their seeking and gaining justice (and other legal benefit).   They know that.

Still, I applaud TWU's honesty and faithfulness in having created a behavior covenant for their students.  My own gay clients would not be surprised by my applauding TWU in that regard. 

This ruling represents a dangerous loss for Canada.  It moves Canada away from political pluralism.

I've read the Sup Ct decision opinions, including the majority opinion, the concurring opinions and the dissenting opinion.  Significantly, it was only the dissenters (two justices) who brought up a concern for political pluralism.  That only 2 of 7 justices were concerned for political pluralism is a bad indicator for things to come.

TWU would have been, apparently, the only "Christian law school" in Canada (by reports I've read).  TWU's inability, because of government disapproval, to provide a legal education grounded in the Christian faith to future Canadian lawyers deprives Canada of that benefit -- and by doing that moves Canada away from political pluralism.  Although not addressed by the justices, the logic of the majority in case would also deny TWU the right to include most if not all other elements of  its student covenant.  After all, why should non-married heterosexuals be denied their "right" to have sex whenever and with whomever they please.  Or married heterosexuals?  Indeed, why should TWU require a covenant that constrains any off campus behavior?  Public universities don't -- what gives TWU the right to constrain students in their off-campus lives?  What gives TWU the right to force its faith perspective down the throats of others?

This Canadian Supreme Court decision represents an enforced "privatization" of religious faith.  Reformed Christians may quote Kuyper's "not one square inch" claim, but the logic of this Supreme Court decision excludes all square inches, save perhaps that of one's private thoughts, the home or church.  This decision says that Kuyper's claim is denied when it comes to most real matters of life.  You may be Christian (or Muslim or Hindu, etc) in your own private thoughts, probably in your home and in your church too, but beyond that there is a fence where the faith that its the basis for doing life is prescribed by the government.

Canadian Kuyperians have cause to be alarmed.

Thank you Doug for your post.  It is  interesting to  see an American lawyer and citizen contribute to a discussion of what is in the best interests of Canadians and the Christian community there.  There are challenges  in being a bi national church but that is always tempered by the fact that we are citizens of the kingdom of God first and foremost. 

Canada's charter of rights and freedoms enjoys specific 'meaning'  and much of Canadian law differs in its orientation from that of  federal and state law in the United States.   As a regulator I appreciate the profound difference between the two jurisdictions on an almost daily basis. Indeed representation of clients in the U.S. requires a far different skill set and knowledge base than that of Canada.  The Canadian and American legal systems differ to such a degree that lawyers trained in their respective traditions need to be employed. 

This case in my reading and understanding centers on discrimination and the peculiar place a law school plays in society  given the charter of rights and freedoms.  It is a very specific ruling tailored to a very specific circumstance and one ought not I believe  presume that the  court would rule similarily in  an other sphere of Canadian life. 

TWU 's creed  requirement on the part of incoming students flies in the face of the charter and the Canadian legal tradition.  Americans, American lawyers especially, may not readily appreciate the fact that the conventions pertaining to the   separation of church and state in Canada means something different than it does in the U.S.  In recent years in the U.S. religious organizations have found greater legal protection to discriminate against those who do not subscribe to their creed.  This impacts employment decisions and the extent of insurance coverage for employees. In Canada it might not be  possible to engage in such practices in corresponding ways  given the Charter and case law to date. 

In the public /private interface I believe your analysis is correct. In Canada it is more difficult to be 'separate' as an institution and organization particularly when the wider interests of society are engaged.   There are clear limits to religious freedom and as time goes  by those limits are is being further  defined in case law.   

Christian day  schools in Canada for example  often enjoy public funding and in  matters of  cirriculum, policy and standards are subject to government  regulatory requirements as enforced by departments of education in the respective provinces.  This is generally accepted as a healthy balance and protective of student well being as citizens of a wider society.  There are limits I believe to what those schools can impose on the parents of the children such schools enroll. 

I suppose it comes down to where the fence line is drawn as you describe so eloquently in your comments.  I suppose someone who is  already willing to defend the rights of the gay, lesbian and transgender community would ultimately have no difficulty in advising future clients where the fence line lies when it comes to creedal requirements in the case of a law school.   I think the Supreme Court wanted to ensure that lawyers in Canada are  all trained in the same way when it comes to an understanding of the law and it's practice.  That reasoned decision appears driven by the notion of the common good.  Yes, i think you are correct, it does limit TWU 's admission practices and likely has implications for the kind of accreditation supervision that would be applied to it's future law school. 

Trinity Westerns Board is report to be engaged in an  internal conversation now that they know where the fence line is for their law school given the decision of Canada's highest court.  There are press reports which indicate that their Board is preparing to withdraw the current creed requirement.  I think it important their law school move forward for it is important that Christian law schools come to exist in Canada.  It seems a wise choice for it might help the school dynamic to welcome students who have differing lifestyles, understandings and commitments to enjoy exposure to Christian commitments and perspectives .

I appreciated you comments and the apparent energy to seek what is  'just' and 'true' . 

 

Community Builder

Thank you for the response Frederic.

I don't think I'm as unable to understand the Canadian issues as you might suppose.  I've done a lot of public interest work in the area of the US constitution's first amendment rights and my reading of the majority, concurring and dissenting opinions in this CA case persuaded me that the underlying issues and concepts were not so different in the Canadian context than in the US context, even if our cases have different names, and our constitutional provisions and legislative enactments use different words.

In this case, my reading of the dissenting opinion (of the two justices) was quite familiar with what I would expect from an opinion issues by some judges in the US, and the majority and concurring options with what I would expect from other judges.  Again, the underlying concepts were really the same.  What perhaps is different is that the numeric balance in the US Supreme Court would probably not mirror what is was in this Canadian Sup Ct case.  In the US, I would guess that the dissenting opinion (the vote from the two dissenters) would be the opinion from 5 or more US Sup Ct justices.

Nor do I think this case is as "complex" or "nuanced" as some would (you or even the author of the post perhaps).  The fundamental question is:  Do the organizational entities that grant or deny accreditation (a government like role) appropriately take in account the (faith meaningful) requirements of the covenant as used by TWU?  The majority and concurring justices said 'yes' (even if with some nuance of argument difference), that the rights of LGBTQ+ citizens to have un-inconvenienced access to all (not just public) law schools, public or private, trumps TWU's right to apply its student covenant requirements that are rooted in its faith commitments.  Said another way, the majority/concurring justices are saying TWU must conform to a CA government mindset about LGBTQ+ behavior -- quite entirely -- to gain governmental approval to train lawyers.

What your response does not address is my suggestion that the logic of this Sup Ct decision probably invalidates (if/when challenged) much more of TWU's student covenant that what was the focus of this Sup Ct decision.   I don't think my "Canadian law naivete" gets in my way there, since the two dissenters in this case were quite obviously thinking the same thing, which is why they and they only discussed concerns about political pluralism.  I may be "Canadian law naive," but at least I have the company of two Canadian Supreme Court justices. :-)

Finally, I would note what this means for institutions of other faiths in Canada.  Could Muslims start a law school in Canada and obtain accreditation for it?  My answer would be "no," unless: (1) the Muslims starting that law school were willing to give up quite a bit of their faith assumptions as a basis from which they enrolled a student body and taught justice, or (2) the Canadian Sup Ct were to decide to treat such efforts by those of the Muslim faith quite differently from those of the Christian faith.

Again, as I've suggested, this is a decision that supports the trend (in the US and Canada) of the "privatization" of religious faith.  That is, 'go ahead and believe what you want but do that very privately, and don't venture out into the public arena'.  We've had that 'progression' in our jurisprudence in Oregon, actually, more than at the federal level.  It's what I have dubbed the 'cigarette smoking theory of religion': we in government all know that religious faith is a stupidity clung to by some in our society, and government should tolerate it but only if it is kept private and doesn't affect the larger society.   

Of course, this perspective runs head-on with a perspective that says, “In the total expanse of human life there is not a single square inch of which the Christ, who alone is sovereign, does not declare,'That is mine!'”  And Christians aren't the only citizens who think like this about the meaning of their faith.

Thank you for engaging me. 

I'm certainly not in a position to judge your credentials, nor can I evaluate your ability to apprehend, interpret, and apply Supreme Court decisions in the Canadian context. Perhaps you are as able to accomplish such tasks as are the two Canadian Supreme Court justices which you cite in support of your conclusions.  

Further to your point. It strikes me that your interpretation of the court's decision is correct/accurate. The framing of the ruling's result  as you state "that the rights of LBTQ + citizens to have un-inconveinced access to all law schools, public and private trumps TWU's right to apply its student requirements of the covenant as used by TWU?" seemed well formulated to me. 

When the TWU covenant is set in the legal and proposed educational context the use of that requirement in the admission's process the university  would have engaged in a practice which is discriminatory. This admission requirement  violates the Canadian legal tradition for it stands in oppostion to charter rights  provisions. The law society of B.C. etc was correct in law to deny TWU's law school application on that basis. 

I believe you read it all correctly until you suggest that the  majority of the justices are saying that TWU must conform to the Canadian government mindset about LGBTQ behavior. Your conclusion seems to miss the point of the Court entirely and becomes ideological to a large extent. In my post I have suggested that the Supreme Court of Canada decision might very well be the preferred judgment offering continued protection for its citizens regardless of sexual orientation and practice. There are good reasons to have that community's rights trump the preferences of others particularly when sexual orientation and expression has nothing to do with one's ability to engage in legal education from a Christian perspective. There are no legally  compelling reasons available in Canada  to require persons who are not hetrosexual in practice to negate their identity and preferences. This reality is yet to be tested in many spheres and perhaps the TWU case was the first of many. 

I would agree that some faith communities in Canada may have difficulty establishing schools and even law schools if they are unwilling to adopt educational practices that do not infringe on the rights of Canadians and /or are in violation of other Canadian laws, conventions and regulations. 

Best,

Fred Koning

Community Builder

Indeed, as you say, Fred, "This reality is yet to be tested in many spheres and perhaps the TWU case was the first of many. "  I suspect that is a concern of many.  It would be my concern, both for Canada (which is now there) and the US (which isn't there yet).

I suspect that this same CA Sup Ct majority (even if less than 7-2) would approve denial of TWU's accreditation even if TWU removed its behaviorial constraint as to sex outside heterosexual marriage, if TWU still taught in such a manner that disapproved of sex outside of heterosexual marriage.  In other words, I don't think the Canadian Sup Ct has a majority of justices, given these opinions on this case, that would allow TWU to define for itself what an "education from a Christian perspective" should claim as to homosexual practice (or bi-sexual or even heterosexual for that matter).  And I think it is just a matter of time before such cases are brought and such rulings made.

I think you and I have discussed this well actually, even if our conclusions are quite different as to what relative governmental priorities best serve the citizens and residents of Canada or any other sovereign nations.  Thank you for that discussion.

Community Builder

For anyone interested, there's an insightful (as usual for Cardus) Cardus YouTube video relating to this discussion.

https://www.youtube.com/watch?v=MfpYoItD8Kc&t=13s&_cldee=ZG91Z0B2YW5kZWd...