Proposed Christian law school reconsiders sexual conduct restrictions after Canadian court ruling

Law societies denied accreditation to the program at Trinity Western University, an evangelical school in British Columbia, citing its community covenant as discriminating against LGBTQ applicants. 
July 5, 2018
TWU president court
Trinity Western University president Bob Kuhn speaks to media following oral arguments at the Supreme Court of Canada in Ottawa, Ontario, in November 2017. Photo courtesy of TWU.

(RNS) — Efforts to open what would be Canada's first private law school and first Christian law school hit an obstacle when the Supreme Court of Canada ruled against its accreditation because of the university's policy of requiring students to sign a covenant that prohibits sexual activity outside of heterosexual marriage.

In twin cases, the law societies of Ontario and British Columbia argued that the five-page community covenant of Trinity Western University—which also applies to administrators, faculty, and staff, and includes a section stating that "sexual intimacy is reserved for marriage between one man and one woman"—discriminates against LGBTQ applicants for admission. The court majority agreed with the law societies in a June ruling.

The majority wrote, "The [Law Society of British Columbia’s] decision prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. These individuals would have to deny who they are for three years to receive a legal education."

Earl Phillips, executive director of the proposed TWU School of Law, said that the 7-2 ruling by Canada's highest court suggested a workaround for the evangelical school based in Langley, British Columbia, which has 17 graduate programs in addition to undergraduate studies.

"The decision seems to emphasize [that the court majority's] concern was that we have a mandatory community covenant that deals with matters regarding sexual relations, and the implication of that is that if it wasn't mandatory that it could be acceptable," Phillips said. "So, this is one of the key issues we have to look at and discern and see if that is a possibility. And then the community has to consider whether any change to the community covenant could be possible."

The school has a possible opening date of September 2019 on its website.

The ruling was a departure from a 2001 Supreme Court of Canada ruling in TWU's favor over a teacher training program. In that case, the British Columbia College of Teachers, which licenses public school educators, denied accreditation for the school's program, claiming the covenant would produce educators biased against LGBTQ youth. A majority of justices hearing that case ruled in TWU's favor, noting that "British Columbia’s human rights legislation accommodates religious freedoms." Today, TWU's School of Education graduates are licensed to teach across the country.

The 2001 ruling did not stop many Ontario and British Columbia law groups from claiming TWU’s rules would injure prospective LGBTQ applicants. Of the 22 other law schools operated by public universities in Canada, three are in British Columbia, where Trinity Western is located.

One Canadian legal scholar said the June decision might allow the school to gain accreditation and open if it makes its covenant optional.

"The majority makes it sound as if the TWU program should be accredited by the law societies if they were to remove the covenant, particularly the element that has the effect of excluding gay [or] lesbian students," said Richard Moon, a law professor at the University of Windsor in Ontario specializing in freedom of conscience and religion.

Moon suggested the court majority may have supported the law societies because of the justices' own experiences entering the legal profession decades earlier. There were fewer law schools then, he said, and admission to law school was more of a requirement to enter the legal profession.

"Unfortunately, TWU didn’t make the argument that admission to law school is not the same gateway or barrier that there once was," Moon said. Another missed argument, he said, was whether "it’s legitimate for law societies to be concerned about the exclusion of gay and lesbian students" without being "equally concerned about exclusion of evangelical Christians."

Critics of the ruling note that the Canadian Charter of Rights and Freedoms contains a section guaranteeing "freedom of conscience and religion," which previously was seen as protecting sectarian groups' free exercise rights. But supporters note that same-sex marriage became legal in Canada in 2005, thereby helping protect LGBTQ persons against discrimination.

Barry W. Bussey, director of legal affairs for the Canadian Council of Christian Charities, said the majority's emphasis on unwritten "charter values" transcends the charter's written guarantees.

"It now depends on the idiosyncrasies of the judicial mind," Bussey said. Referring to the 2001 case, he added, "What they've done is ignored it. When it comes to precedent, the Canadian court feels it’s no longer bound by that."