Supreme Court To Decide Fate Of Canada's First Christian Law School: Does Religious Freedom To Ban Student Sex Outside Of Heterosexual Marriage Trump LGBTQ Rights?

Following up on my previous posts (links below):  Toronto Globe and Mail, Supreme Court to Hear Appeals About Trinity Western University Law School:

The Supreme Court of Canada agreed Thursday to hear two appeals involving a private Christian university that demands all students sign a code of conduct forbidding sexual intimacy outside heterosexual marriage.

Trinity Western University has been seeking accreditation in all provinces for future graduates of its proposed law school but has faced pushback from law societies in Ontario, British Columbia and Nova Scotia over its controversial conduct code.

The Ontario and British Columbia cases, which pit religious freedom against equality rights, are now before the country’s top court.

Trinity Western’s “community covenant” or code of conduct requires students to abstain, among other things, from obscene language, harassment, lying, stealing, pornography, drunkenness and sexual intimacy “that violates the sacredness of marriage between a man and a woman.”

Critics say it discriminates against people in the LGBTQ community who are looking to enter the legal profession.

But the university, which is located in the Fraser Valley community of Langley, B.C., and enrols about 4,000 students annually, has said its law school will allow evangelical Christians to study law in an environment that supports their beliefs. It also notes that it does not ban admission to gay, lesbian, bisexual or transgender students or faculty, and said its community offers “an environment in which sexual minorities are supported, loved and respected.” ...

Trinity Western’s law school was originally slated to open in 2016, but that date has since been pushed back to the fall of 2018.

Canadian Lawyer, Trinity Western’s Law School Proposal Has Sparked a Fundamental Debate About Religious Freedom and Discrimination:

The university had hoped to start in the fall of 2015 with a class of 60 students and a curriculum similar in most respects to that of any other law school in the country, yet with an evangelical Christian perspective. More than three years since it received preliminary approval from the national legal organization and the B.C. government, the fate of the proposed law school remains up in the air and the debate is ... headed to the Supreme Court of Canada.

The debate over accreditation has been heated among benchers of the law societies in B.C., Ontario and Nova Scotia and sparked litigation in all three provinces. The Ontario Court of Appeal upheld a lower court decision and that of its law society not to accredit Trinity Western. The B.C. Court of Appeal concluded that its law society infringed freedom of religion rights in voting not to accredit the school, which followed a very rare referendum by its members. And in Nova Scotia, a resolution not to accredit Trinity Western was ruled invalid on procedural grounds by its Court of Appeal.

Even the legal analysis differed slightly in each province. B.C. focused on a balance of freedom of religion and equality rights. Ontario suggested the university was invoking religion to try to compel the law society to grant a “benefit” in the form of accreditation. The Nova Scotia courts did not address Charter issues because of procedural flaws in the action taken by the provincial barristers’ society.

The disagreement over whether to grant approval extended to the proper role of regulators of the law profession over law school in Canada. As well, there were numerous interveners on both sides of the question, dozens of submissions to law societies and an unusual situation where the B.C. Civil Liberties Association and Canadian Civil Liberties Association were on opposite sides of an issue. ...

At the centre of this dispute is the university’s Community Covenant, a five-page document that “apart from a few items in it would be the desire of every institution of advanced learning in this country,” said Trinity Western’s president Bob Kuhn, in addressing law society benchers in Ontario in April 2014. “In fact, we have been asked how do you avoid some of the things that have occurred on the campuses of this country where under-aged rape is seemingly acceptable, where discipline and consequences are immaterial in many cases,” said Kuhn, who is also a lawyer.

Most controversial in the covenant is the requirement to abstain from certain actions, including anything that violates the sanctity of marriage between a man and a woman.

This section of the covenant was described as “deeply discriminatory” to the gay and lesbian community, by the Ontario Court of Appeal in its decision on Trinity Western last June. The Nova Scotia Barristers’ Society was initially willing to accredit the university’s law school if it amended the covenant and that option has been raised by others as a potential compromise.

For those at Trinity Western, though, it is not a viable option. “This is not just a Code where we can parse these words or find a way around it,” says Phillips, who was part of an advisory council at Trinity Western before he was appointed the law school’s executive director in September 2014. “This is built more along the line of a biblical covenant. We believe that you cannot separate statements of belief with how you live your life. This is based on your call as a Christian,” says Phillips. He also stresses that the covenant requires individuals to be respectful of others. ...

For those at Trinity Western, though, it is the right to provide a legal education in a Christian context that they see as being the target of discrimination. “It is not a battle that we asked for,” says the law school’s executive director Earl Phillips. “But it is one we are left with, and on a principled basis we cannot run away from it.”

Prior TaxProf Blog coverage:

• Deans Oppose Canada's First Christian Law School (Jan. 19, 2013)
• An Argument for a Christian Law School in Canada (Aug. 4, 2013)
• Canada Approves First Christian Law School Despite Opposition Over Student Code of Conduct Prohibiting Gay 'Sexual Intimacy' (Dec. 20, 2013)
• Legal Education, Religious and Secular: The Trinity Western University Controversy and Beyond (June 1, 2014)
• Legal Education, Gay Rights and Religion: Living by a Different Law (Nov. 9, 2014)
• Canada's First Christian Law School Sues Over Denial of Accreditation Due to Student Code of Conduct (Dec. 25, 2014)
• Will Christian Colleges (And Law Schools) Lose Their Tax Exemption After Obergefell? (July 5, 2015)
• Brunson: Churches And Religiously-Affiliated Schools That Oppose Same-Sex Marriage Will Not Lose Their Tax Exemption After Obergefell (July 12, 2015)
• The Accreditation Battle Over Canada's First Christian Law School (Apr. 24, 2016)
• More On The Accreditation Battle Over Canada's First Christian Law School (June 5, 2016)
• Appeals Court Affirms Denial Of Accreditation Of Canada's First Christian Law School (June 30, 2016)
• The (Im)Possibility Of Christian Legal Education (July 10, 2016)
• British Columbia's Highest Court Unanimously Approves Canada's First Christian Law School, Says Religious Freedom To Ban Student Sex Outside Of Heterosexual Marriage Trumps LGBTQ Rights (Nov. 2, 2016)