Canadian Supreme Court expressly rejects religious exceptionalism, the SCOTUS left the issue unresolved

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By Vito John Marzano

On June 15, 2018, the Supreme Court of Canada issued 7–2 companion decisions in Law Society of British Columbia v. Trinity Western University, and Trinity Western University v. Law Society of Upper Canada, rejecting religious exceptionalism as a basis for proposed law schools to impose their religious beliefs on students. The Court held that the Law Society of British Columbia (“LSBC”) and the Law Society of Upper Canada (“LSUC”) struck a proportionate balance between religious freedom, as enshrined in § 2 of the Canadian Charter of Rights and Freedoms (“Charter”), and the overarching objective of the enabling statutes of the LSBC and the LSUC to protect the public interest in the administration of justice, when the law societies withheld accreditation to a proposed evangelical law school on the basis of anti-LGTBQ discrimination.

Trinity Western University (“TWU”) is a postsecondary evangelical Christian institution located in British Columbia. It sought to establish a law school and applied for accreditation from various law societies throughout Canada. TWU would mandate that students sign and adhere to its Community Covenant Agreement (“Covenant”) while studying law. The Covenant compelled students to abstain from all sexual intimacy outside of marriage between one man and one woman, regardless of whether the student engaged in such behavior in the privacy of their own home while off-campus. Students found in violation of the Covenant could face disciplinary action up to expulsion.

British Columbia and Ontario delegate self-regulating authority to the respective societies to govern the practice of law and to protect the public interest in the administration of justice (%see% Legal Profession Act, S.B.C. 1998; Law Society Act, R.S.O. 1990). The Court acknowledged that when the legislature invests a self-regulating body with authority to protect the public interests, it expects the judiciary to defer to the institutional expertise of the regulatory body. As such, a court assesses the record to determine the reasonableness of the body’s decision.

Applying this deference, the Court rejected TWU’s argument that the LSBC and LSUC usurped the role of a human rights tribunal and exceeded their statutory authority by focusing on conduct they find objectionable. Rather, the public interest in the administration of justice envisions ensuring equal access to a legal education for all individuals in society, including LGBTQ students. This responsibility encompasses approving or denying accreditation to a proposed law school that would enshrine discrimination into its education. To that end, the Court reasoned that the public interest contemplates that “[a] bar that reflects the diversity of the public it serves undeniably promotes the administration of justice and the public confidence in the same. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar.” By denying accreditation, the LSBC and LSUC acted reasonably to achieve their statutory objective because the determination ensured that all segments of society can seek to participate in the legal profession, and such disparate groups create a stronger bar that enhances justice.

The Court also rejected TWU’s argument that the LSBC and LSUC needed to provide reasons for their determinations. The LSBC invited all members to vote on whether to grant accreditation and adhered to the result of that vote. As such, the vote itself furnished the reasons for the determination. Likewise, the LSUC addressed the issue in speeches made at convocations in April 2014, establishing that the members had notice of the issue and their statutory duties.

The Court then addressed whether the determination breached the Charter under the Doré/Loyola proportionate balancing framework. This assessment requires a threshold determination as to whether the administrative decision engaged in the rights and the values of the Charter. To do so, the claimant must establish a nexus between the sought practice and their religious beliefs and then demonstrate that the infringement was either substantial or not trivial. The Court recognized that religious freedom entails both individual and profoundly communitarian components, and that the Charter contemplates those adherents who seek to form cohesive communities of belief and practice. By relying on the strong link between evangelicalism as a belief and the desire to form a cohesive community of practitioners to enable spiritual growth, TWU satisfied the first prong. Moreover, TWU satisfied the second prong on the basis that by denying accreditation, the LSBC and the LSUC necessarily limited TWU’s ability to form a cohesive community in which to study law.

Having met the threshold burden, the Court then considered whether the LSBC and the LSUC determinations struck a proportionate balance between the law societies fulfilling their shared statutory objective and the impact of such on the Charter protections. The proportionate balancing inquiry does not prefer the least restrictive measure, but only whether the measure fell within a permissible range. Notably, TWU refused to amend its Covenant, which placed the law societies with two options — approve or reject. By choosing the latter, the LSBC and the LSUC fulfilled their statutory objective to maintain equal access and diversity in the legal profession. The Court concluded that denying accreditation on the basis of the mandated Covenant did not limit the free practice of religion, therefore striking the proportionate balance.

The Court explained that evangelicals remain free to practice their religion and to create cohesive communities without state-sponsorship. While the Covenant and TWU’s proof evinces a strong preference among evangelicals that studying law under the Covenant would assist spiritual growth, a preference is not a requirement. Although evangelical students may prefer this type of community to study law, their continued spiritual growth does not necessitate it. As the Court went on to explain, TWU did not advance a strong argument to overcome the LSBC and the LSUC statutory objective. Rather, it explained that, when compared to other claims, TWU’s preferential argument meant that “prospective TWU law students effectively admit that they have much less at stake than claimants in many other cases that have come before this Court.”

The Court found that the Covenant harms LGBTQ students in several ways. With respect to TWU’s argument that it welcomes all students who would adhere to the Covenant, the Court pointed out that the practical implication of deterring LGBTQ applicants renders this argument fruitless, thus harming LGBTQ people and the profession. Likewise, the Court concluded that the argument that an LGBTQ student could merely go elsewhere “undermines true equality of access to legal education, and by extension, the legal profession. Substantive equality demands more than just the availability of options and opportunities — it prevents the violation of essential human dignity and freedom and eliminates any possibility of a person being treated in a substance as less worthy than others. The public confidence in the administration of justice may be undermined if the [law society] is seen to approve a law school that effectively bars many LGBTQ people from attending.”

Unequivocally rejecting that the Covenant does not harm LGBTQ students, the Court stated that “it is not possible to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood.” Forcing an LGBTQ student to adhere to the Covenant causes harm to the student’s dignity, self-worth, confidence and self-esteem, causing stigmatization and isolation. By adopting such strong language, the Court emphasized that the public interest in the administration of justice obligated the law societies to prevent harm to LGBTQ person(s).

Within the religious freedom context, the Court expressly disavows religious exceptionalism that seeks to impose religious beliefs on others. TWU did not seek only to set up a religious community, but also to impose its beliefs on others in a way that humiliates LGBTQ students. The Court explained that “[b]eing required by someone else’s religious belief to behave contrary to one’s sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion.” Thus, the Court concluded that the LSBC and the LSUC had no choice but to deny accreditation in order to fulfill their statutory objective.

Chief Justice McLachlin concurred, but would have sought to refine the %Doré/Loyola% framework. Justice Rowe concurred in the conclusion but warned the Court against conflating %Charter values% with %Charter protections%. The dissent would have held that a contextual and purposive reading of the respective statutes does not permit the law societies to consider anything other than whether a law school would produce graduates eligible for admission. The enabling statutes do not grant authority to “police human rights standards in law schools,” they argued. Rather, they contend that the statutory objective to protect the public interest does not overpower Charter protections.

Comparatively speaking, while the Canadian Supreme Court expressly rejects religious exceptionalism, the United States Supreme Court left the issue unresolved when, in analogous cases, it punted on procedural grounds and subsequently remanded a similar case to a lower court for reconsideration.

This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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