SCC and Trinity Western University

[FJAG]

The Supreme Court of Canada has come down with two related decisions (seven judges concurring with two dissenting) respecting the law societies of Ontario and British Columbia denying accreditation to TWU because it's mandatory religious based covenant restricted access to members of the LGBT community.

The SCC determined that the law societies were entitled to consider the effect of the covenant in determining whether or not to accredit TWU.

The following are key quotes from the Ontario decision.

[1]                              Trinity Western University (TWU), an evangelical Christian postsecondary institution, seeks to open a law school that requires its students and faculty to adhere to a religiously based code of conduct prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman”.

[19]                          In this case, the LSUC [Law Society of Upper Canada now Ontario] interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the mandatory Covenant effectively imposes inequitable barriers on entry to the school. The LSUC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar. Ultimately, the LSUC determined that the approval of TWU’s law school, as proposed, would negatively affect equitable access to and diversity within the legal profession and would harm LGBTQ individuals, which would be inconsistent with the public interest.

The BC decision is the longer more detailed explanation for the ruling.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17140/index.do

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17141/index.do

:cheers:

 

[pbi]

The Supreme Court of Canada has come down with two related decisions... The SCC determined that the law societies were entitled to consider the effect of the covenant in determining whether or not to accredit TWU.
:cheers:

So, I take it that TWU cannot enforce this restriction on its students any longer?

Which is fine by me. In my opinion, what students do in their private sex lives, as long as it isn't harmful or criminal, is their business alone. It certainly has nothing to do with being good lawyers.

There is no bar that I can see to being a Christian and LGBTQ: I have two gay friends who are both ordained Anglican clergymen. They are excellent servants of God, and far closer to the model of Christianity as I understand it and try to practice it, than some of the narrow-minded fundamentalist types who shriek endlessly about "praying away the gay" or other silly rubbish...

Now, I wonder about the Catholic Church's view on celibacy for priests....

 

[Colin Parkinson]

On the flip side, what does this requirement really have to do with the Law Society? If the lawyers takes a job working for the government, then they will be bound by that departments polices. If they open a private business they would likely decline to service openly gay clients and if forced to serve them, are not likely to do so in as manner as eager as they might otherwise. I also don't recall any mosques openly embracing gay sex, so it could be construed that a devout Muslim lawyer may also discriminate against gay clients. I look forward to the Law society pursuing that issue with the same vigor.   

 

[captloadie]

If I understand what has happened, the SCC has agreed with two law societies that it is alright to put some individuals' personal beliefs and rights over others? Is the law society questioning all lawyers on their beliefs? If those individuals who would have been accepted to TWU are now accepted to another program, taking a potential spot away from a LGTBQ individual, they are still going to have the same beliefs are they not, and still dilute the diversity of the whole?

 

 

[FJAG]

So, I take it that TWU cannot enforce this restriction on its students any longer?

Which is fine by me. In my opinion, what students do in their private sex lives, as long as it isn't harmful or criminal, is their business alone. It certainly has nothing to do with being good lawyers.

There is no bar that I can see to being a Christian and LGBTQ: I have two gay friends who are both ordained Anglican clergymen. They are excellent servants of God, and far closer to the model of Christianity as I understand it and try to practice it, than some of the narrow-minded fundamentalist types who shriek endlessly about "praying away the gay" or other silly rubbish...

Now, I wonder about the Catholic Church's view on celibacy for priests....

All that the judgment means is that BC and Ontario's law societies could lawfully refuse to accredit TWU's law school as an institution. Other jurisdictions have given accreditation and therefore TWU can continue to keep their policy in place although it would limit where their student's degrees are accepted.

I've long been a believer that human rights are layered. When one conflicts with another predominance should be given to the situation over which the individual has no choice: such as skin colour, gender, etc while the less protected one should be over conditions where the individual has a choice: such as religion, medical condition grounded in addiction etc. This decision doesn't go anywhere near that far but shows that religion is not immune from challenge.

:cheers:

 

[FJAG]

On the flip side, what does this requirement really have to do with the Law Society? If the lawyers takes a job working for the government, then they will be bound by that departments polices. If they open a private business they would likely decline to service openly gay clients and if forced to serve them, are not likely to do so in as manner as eager as they might otherwise. I also don't recall any mosques openly embracing gay sex, so it could be construed that a devout Muslim lawyer may also discriminate against gay clients. I look forward to the Law society pursuing that issue with the same vigor. 

The rationale is that each of the law societies has a statutory obligation set by their respective provincial governments to

ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people.

On the other hand,

a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for prospective TWU law students.

. The court balanced these requirements.

While there is no doubt that some lawyers are religious, that some have strong religious views and may even practice some form of discrimination, the latter is prohibited under the various Professional Codes of Conduct, not to mention provincial Human Rights Laws and they could and would be sanctioned if a complaint was made and upheld.

:cheers:

 

[Colin Parkinson]

I find more interesting is the apparent eagerness of the Law Society to pursue this issue, while being quiet as a mouse on the views held by other religions that may be as equally discriminatory. Let's face it attacking Christian institutions here is basically baiting a toothless tiger with a payout of high moral brownie points and zero risk.   

 

[Blackadder1916]

"The first thing we do, let's kill all the lawyers."

Henry VI, Part 2, Act 4, Scene 2

What would a lawyer's thread be without thus quoting Will Shakespeare.  Instead of wasting FJAG's time in rebuttal (besides. he doesn't get to bill for the time) one can just go to https://army.ca/forums/threads/127136/post-1526913.html#msg1526913 for his explanation of the proper meaning of the line.

Now.

In the interest of balance, one can go to TWU's proposed law school site for their version of events leading up to this.
https://www.twu.ca/academics/schools-faculties/proposed-school-law

And for those who might have an interest in the LSO's rules and actions for those who violate them, a starting point.
https://lawsocietytribunal.ca/Pages/Mainpage.aspx#12

As an atheist agnostic ex-Irish Roman Catholic someone who doesn't give a s**t about religion, I can see the point of view of the opposing law societies in view of the "perceived" ideology of TWU.  However, there may be a touch of keeping a closed shop.  The two law societies party to this decision (BC and Ontario) are also the provinces in which TWU have brick and mortar campuses and thus are the most likely employment destinations of any graduates.  Thankfully, Canada has not yet fallen to the level of depravity found in the United States where you can hardly swing a dead cat (or a live plaintiff) without hitting someone who graduated from a law school.

 

[Brad Sallows]

The legal reasoning is what it is, and just comes across as self-serving (the aim was situated).

The TWU covenant applies to all sexual activity outside marriage, not just homosexual activity - a fact which is often not mentioned, with the covenant (mistakenly, I suppose) often misrepresented only as a prohibition against gay sexual activity.  The hard part for social activists to handle is the attached definition of marriage being one man and one woman. 

Being a law school implies an older student population; nevertheless, I'd be surprised if many of the students were married.  The covenant affects - "harms" - straight students as much as gay ones.

TWU is a Christian university, so by definition there should be an "inequitable barrier to entry" to everyone who isn't on board with whatever Christian values the institution chooses to emphasize.  It isn't as if there are no other law schools.  Based on the hours of discussion on talk radio, what was actually up the activists' nose - what they'd admit to when they lost their cool or forgot themselves - was the idea of lawyers being trained with a Christian bias in the background.  The affront to same-sex marriage was just a pretext to try to shut down a law school at a Christian university.

Lawyers are expected to argue cases irrespective of their feelings or beliefs about a case (most defence lawyers, for example); the underlying supposition that lawyers educated at TWU would never be able to argue fairly and diligently is really just an insult that presupposes they would never be able to be effective lawyers in the first place.

The law societies have disgraced themselves.

 

[FJAG]

. . .
Lawyers are expected to argue cases irrespective of their feelings or beliefs about a case (most defence lawyers, for example); the underlying supposition that lawyers educated at TWU would never be able to argue fairly and diligently is really just an insult that presupposes they would never be able to be effective lawyers in the first place.

The law societies have disgraced themselves.

This is where you have accidentally found the nub of the matter.

The law societies in question have a legislated mandate to "advance the cause of justice and the rule of law" which includes the Provinces' human rights legislation. It's the legislature that set the mandate, not the law societies themselves.

More importantly, evangelical Christians seem to have set themselves above the law in respect of various issues, including raising their religious beliefs as an excuse to escape the requirement to treat all people equally (see for example the bakers who refuse to make wedding cakes for same sex couples) They frequently state that their religious beliefs (as interpreted from millennia old scribblings) come from a higher authority and therefore outweigh modern laws that are in conflict with those beliefs.

TWU's mission statement from it's website is:

"As an arm of the Church, to develop godly Christian leaders:
positive, goal-oriented university graduates with thoroughly Christian minds;
growing disciples of Jesus Christ who glorify God through fulfilling the Great Commission,
serving God and people in the various marketplaces of life."

It's clear that their mission is not to simply turn out legal scholars but ones that are thoroughly inculcated with the desire to advance Christian principles which TWU blatantly states oppose same sex relationships. There is no misrepresentation by TWU's critics here. Yes, TWU comes out against all extramarital sex but goes further and makes specific provision that the only marital relationship they will accept is between a man and a woman. TWU's homophobic position couldn't be more obvious.

The law societies in question have struggled mightily over the last few years on this issue and it would appear, based on the Supreme Court's decision, have come down on the right side of the issue.

:cheers:

 

[Cloud Cover]

What TWT wanted to do is not required. There are already many lawyers of evangelical faith, and I can think of 3 SCO judges in SouthWest Region as well who were even pastors. It’s not a big deal that requires an entire law school dedicated to one faith or faith based principals. How would people feel about a special law school that requires all students be Muslim and adhere to Sharia while pretending to prepare to practice otherwise. Crazy. Anyways, they are law schools, not lawyer schools and there used to be a difference.

I do, however, agree with Brad that activism is running rampant in the law societies, especially in Ontario and BC.

 

[Brad Sallows]

"...evangelical Christians seem to have set themselves above the law in respect of various issues..."

They don't "seem"; they do.  For Christians - as for members of various other religions - some precepts are by definition (their own) above secular law.  Thus:

"They frequently state that their religious beliefs (as interpreted from millennia old scribblings) come from a higher authority and therefore outweigh modern laws that are in conflict with those beliefs."

Exactly.  Christianity clearly recognizes a distinction between heavenly authority and earthly authority (not all religions do), but doesn't concede the right to decide which is which to the earthly authority.

Law is downstream from culture and society.  I suppose much of our statutory law is just codification of customary practices over time.  It isn't magical, and it isn't infallible.  The notion of a religious principle or definition set above a secular one isn't merely possible; it may be morally imperative.  (In this specific case, I disagree that SSM is something over which the heavenly authority has manifest supremacy, but I also disagree that religions should not be at liberty to apply and enforce each religion's definition of marriage.)

>What TWT wanted to do is not required.

"Requirement" should be irrelevant.  TWU is a Christian university that wants to start a law school - the university and its Christian character are already baked in.

An Islamic law school emphasizing sharia practices (consistent with the kinds of applications of religious law currently permitted in Canada) is acceptable to me.  Those who don't want to learn Islamic law in an Islamic context while observing Islamic principles should not attend.  If a student passes the bar and then hangs up a shingle as someone specializing in settling civil disputes with applications of sharia, no-one should go there seeking a personal injury claim against ICBC or a defence lawyer for a serious criminal charge and the lawyer should be free (if not bound) to decline such cases; it is pretty clear to me that lawyers specialize.  With that as a "bright line", I have no objection to "learning law while observing Christian principles".

Frankly, all the people out their there [(gah!)] who are emphatic supporters of diversity should welcome a law school in a Christian-oriented institution and a law school in an Islamic-oriented institution.  (I'm not serious; I realize diversity is about superficial characteristics like skin colour, gender, and parentage, and not about thought.)

 

[YZT580]

Well expressed, Brad

 

[Journeyman]

...they are law schools, not lawyer schools and there used to be a difference.

I participated in writing one portion of the annual NATO threat assessment.  One nation's representative had legal training from an old-school Jesuit institution;  he had a brilliant mind for logic and nuance that was positively "Vulcan."  He was one of the few reps that everyone actively listened to (as opposed to some, who were limited to spouting irrelevant national talking points or it was obvious that they were merely 'I'll support your country's party line on this if you support mine in another committee').  But hearing that one guy speak was awesome.


[yep, there's that old 'thoughtful, informed opinion' hobby-horse yet again.  ]

 

[Pusser]

If TWU is a "Christian" institution, does that mean that their student demographics consist of 13 men for every prostitute?

 

[Colin Parkinson]

The LGBT Crusaders are as every bit zealots as the most evangelist Christian. Any attempt to "debate" the issues will have you pegged as a hater. Same with abortion, the fact that the majority abortion protesters rarely consider the concept of fetal rights or when life begins, makes it difficult to discuss. 

 

[Rocky Mountains]

I've long been a believer that human rights are layered.

I believe that the government (and government authorized regulators) shouldn't pick winners or losers when rights conflict.  By picking a winner, the government is the suppressor.  By standing aside the government is merely an observer.

 

[Blackadder1916]

I believe that the government (and government authorized regulators) shouldn't pick winners or losers when rights conflict.  By picking a winner, the government is the suppressor.  By standing aside the government is merely an observer.

So, white supremacy would be okay?  It shouldn't matter to citizens that a government could round up and put into internment camps other citizens or residents such as Japanese?  The CAF was better off when it hunted down and persecuted homosexuals? Want more examples?

This isn't the "marketplace" where the company that is best able to place its products or otherwise overwhelm its competition is the winner.  I would agree with one phrase of your statement but probably not how you intended the meaning, "the government shouldn't pick winners or losers when rights conflict".  There shouldn't be "winners and losers" in regards to human rights, it's not a zero-sum game.  No one loses their rights if everyone else has theirs.  In this particular case it may be a bit hard to understand how the decisions of these two law societies are protecting the rights of all, but fortunately there are some who do.

 

[Rick Goebel]

(It shouldn't matter to citizens that a government could round up and put into internment camps other citizens or residents such as Japanese?  The CAF was better off when it hunted down and persecuted homosexuals?)

Blackadder1916, there is an enormous difference between what Rocky Mountains said and what you said (above).  A nongovernmental body saying you must agree to a certain code of behaviour to belong to our group is much different from employing the coercive power of the government to enforce racist policies.

 

[Rocky Mountains]

So, white supremacy would be okay?

Sure.  Along with every other supremacy.  Like it is right now.  Ideas can be tolerated.  Calls to action cannot.  Nice straw Nazi - inserting white supremacy for Christian schoolkids who are likely among the most tolerant people on earth.