ON court finds Trinity Western covenant discriminatory

The Ontario Superior Court of Justice has rejected an evangelical Christian university’s attempt to overturn the provincial law society’s refusal to accredit its proposed law school.

At the centre of the storm sits Trinity Western University’s (TWU) controversial community covenant, which the court called discriminatory.

The covenant, which all TWU students must follow, demands abstinence from sex outside traditional (heterosexual) marriage.

“Despite some efforts by TWU to contend that the Community Covenant does not operate in a discriminatory fashion, it is self-evident that it does,” the court ruled on July 2, 2015.

The ruling says LGBT people, and people who don’t believe in marriage, would have to disavow their beliefs to sign the covenant, and, “in the case of LGBTQ individuals, their very identity.”

“To assert that that result is not, at its very core, discriminatory, is to turn a blind eye to the true impact and effect of the Community Covenant,” ruled a panel composed of Justices Frank Marrocco, Edward Then and Ian Nordheimer.

In signing the covenant, a member of the LGBT community would agree “to essentially bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship,” the judges found.

“Sexual conduct is an integral part of a person’s very identity,” the judges continued. “One cannot be divorced from the other.”

TWU applied to have its school accredited through Ontario’s law society (the Law Society of Upper Canada) in January 2014. The law society rejected the application 28-21 with one abstention. TWU subsequently applied for a court review of the decision.

TWU spokesperson Guy Saffold says the university will appeal the July 2 decision as well.

“A faith community’s commitment to a traditional view of marriage should not become grounds for denial of religious rights and refusal of full participation in society,” he said in a news release.

TWU president Bob Kuhn could not be reached for comment.

The court said the law society had to balance TWU’s right of freedom of religion against the rights of two historically disadvantaged minorities: LGBT people and women.

The society was entitled to consider the impact of equality rights in its decision, the court ruled.

“Condoning discrimination can be ever much as harmful as the act of discrimination itself,” the judges found.

“TWU can hold and promote its beliefs without acting in a manner that coerces others into forsaking their true beliefs in order to have an equal opportunity to a legal education,” the court said. “It is at that point that the right to freedom of religion must yield.”

Douglas Judson, a board member of the Ontario gay lawyers group, Out on Bay Street, welcomes the decision. It recognizes that freedom of religion does not entail the right to trammel the rights of others, he tells Daily Xtra.

“This is really an important milestone for us,” he says.

He says the ruling allows the Ontario law society to flex its muscle in deciding that the practice of law should be open to everyone.

TWU had relied on the Supreme Court of Canada’s 2001 ruling in Trinity Western University v British Columbia College of Teachers. That decision upheld TWU’s right to teach Christian values to would-be teachers and to insist that incoming students sign its covenant. The court found the university’s teacher program graduates are entitled to hold “sexist, racist or homophobic beliefs” as long as they don’t act on them in the public school classrooms to which they might be assigned.

The Ontario court, however, says times have changed, and the teachers’ decision should not pre-ordain a ruling in this case.

“The court’s ultimate decision against TWU is starkly at odds with the Supreme Court of Canada’s 2001 decision directing approval of TWU’s teacher education program,” TWU’s Saffold notes. “It points a knife at the freedom of faith communities across Canada to hold and practice their beliefs.”

But rather than interfering with TWU’s religious freedom, the court found the law society’s rejection has more of an economic impact on TWU, as it restricts its graduates’ access to Canada’s largest legal market (Ontario).

“The result appears to represent much more an economic decision, as opposed to a religious one,” the court said, adding that TWU’s position “takes freedom of religion too far.”

The court also found that TWU’s covenant discriminates against women generally, and anyone else who might want to live in a common-law relationship outside marriage.

TWU had argued the society’s sole consideration should have been whether or not the university would graduate competent lawyers.

The court disagreed, saying the society has a multiplicity of functions in considering whether or not a law school is in the public interest.

The court said with a limited number of law school spaces available in Canada, not being able to attend TWU would limit those who dream of a legal career.

The Ontario decision is the opposite of the Nova Scotia Supreme Court’s decision on January 28, which found that province’s law society does not have the authority to deny future TWU graduates the possibility of articling in the province.

The Ontario court noted that the Nova Scotia regulator did not have as broad a mandate as its Ontario counterpart and dealt mainly with jurisdiction over the school.

Such a divergence of opinions almost ensures the situation, which has caused much handwringing in regulators of the profession across the country, is headed for the Supreme Court of Canada for a final decision.

Judson says Out on Bay Street will continue to ensure the views of the queer community are heard in the proceedings.