A Victory for Religious Freedom in Canada

Yesterday brought news of a significant victory for religious freedom in Canada. The Supreme Court of Nova Scotia found in favor of Trinity Western University (TWU) in its case against the Nova Scotia Barristers’ Society.

Trinity Western University, a private Christian university in British Columbia, has been under fire since announcing in 2012 plans to open a law school. Despite public criticisms of the religious nature of TWU, the Federation of Law Societies of Canada and British Columbia’s Ministry of Advanced Education both eventually approved the proposed program in December 2013.

That should have been the end of things but it wasn’t. While a number of provincial and territorial law societies (British Columbia, Alberta, Saskatchewan, New Brunswick, Prince Edward Island, and Yukon) all recognized the accreditation, two societies did not. The Law Society of Upper Canada (i.e. Ontario) voted to reject recognizing TWU’s law school in an April 2014 meeting. Likewise, the Nova Scotia Barristers’ Society voted to reject approval of the school’s graduates. Later in October 2014, following a referendum of its members, the Law Society of British Columbia reversed its position as well, now voting against recognizing TWU’s School of Law.

The question has never really been about the quality of the education TWU would offer. As noted before, it had already been recognized by the Federation of Law Societies of Canada and British Columbia’s Ministry of Advanced Education. The former represents the national body which recognizes the validity of law degree programs offered in Canada; the latter represents the provincial authority that authorizes TWU to give degrees.

Instead, the issue has centered on the fact that TWU is a private faith-based school. While law schools at religious institutions are common enough in the United States, TWU would be the first such school in Canada. Critics cried foul, arguing that TWU was homophobic because the school’s Community Covenant only allows for sex within the context of traditional marriage between a man and a woman.

Understandably, TWU protested the actions of provincial law societies which had refused to recognize the school despite it garnering the appropriate accreditation. Consequently, TWU filed suit against the law societies of Nova Scotia, Upper Canada, and British Columbia respectively.

The first of these cases—against the Nova Scotia Barristers’ Society—was heard throughout December 2014. Now, the Supreme Court of Nova Scotia has released its decision—and it’s an unambiguous finding in favor of Trinity Western University.

“There is no evidence beyond speculation that LGBT people in Nova Scotia are harmed in any way, however slight, by living in the knowledge that an institution in Langley British Columbia, which like any number of religious institutions in Nova Scotia, does not recognize same sex marriage but which properly educates lawyers who can practice law in Nova Scotia, where discrimination within the profession is strictly forbidden,” Justice Jamie Campbell writes in his 139 page decision. By contrast, he writes, the actions of the Nova Scotia Barristers’ Society “infringe on the freedom of religion of TWU and its students in a way that cannot be justified.”

“People have the right to attend a private religious university that imposes a religiously based code of conduct,” Justice Campbell notes earlier in the decision. “That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society.”

“Requiring a person to give up that right in order to get his or her professional education is an infringement of religious freedom,” he continues. “Private religious schools are not limited to training members of the clergy, theologians, missionaries, or those who want professional degrees but do not want to practise. Those institutions already do produce nurses and teachers and grant any number of academic degrees that are widely accepted.”

That last sentence hearkens back to earlier legal troubles for TWU. When the school had earlier attempted to open a college of education, the British Columbia College of Teachers (the educational equivalent of a provincial law society) refused to recognize the school on similar grounds—namely, because TWU prohibited its students from engaging in homosexual activity. The legal wrangling in this case went all the way to the Supreme Court of Canada, which ruled that the British Columbia College of Teachers was wrong to reject TWU on the stated grounds. Today, Trinity Western University provides education in a number of professional programs, including education and nursing.

The new ruling from Nova Scotia’s Supreme Court establishes a strong precedent for finding in favor of TWU in the two suits still to come: TWU’s cases against the law societies of Upper Canada and British Columbia respectively.

Still, there are additional problems to face. In December, British Columbia’s Ministry of Education revoked its approval of TWU’s law school, ostensibly because that province’s law society had also rescinded its recognition of TWU’s program.

As Canadian society moves in an increasingly secular direction, these sorts of challenges against religious institutions are to be expected. But they are nevertheless actions that religious people can and should fight. We have a place in the public square. And we should not cede it willingly.

That right is something Justice Campbell explains very well in the conclusion of his judgment.

For many people in a secular society religious freedom is worse than inconsequential. It actually gets in the way. It’s the dead hand of the superstitious past reaching out to restrain more important secular values like equality from becoming real equality. A more progressive society, on that view, would not permit any incursions by religion into public life or would at least limit those incursions to those by religions that have belief systems and practices that are more consonant with mainstream morality. The discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and multicultural society. The law protects them and must carve out a place not only where they can exist but flourish.

Amen to that. Here’s praying the upcoming court cases in Ontario and British Columbia come to the same conclusion.