The Accreditation Battle Over Canada's First Christian Law School: Does Religious Freedom To Ban Student Sex Outside Of Heterosexual Marriage Trump LGBTQ Rights?

Following up on my coverage of the accreditation battle over what would be Canada's first Christian law school (links below):

John Boersma (Ph.D. Candidate, LSU), The Accreditation of Religious Law Schools in Canada and the United States, 2016 BYU L. Rev. 1081:

Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.

This comparative Article argues that as a matter both of public policy and law, the regulatory bodies concerned with the accreditation of law schools in both Canada and the United States have ample reason to accredit religiously affiliated law schools. First, as a matter of public policy, diversity in the type of law schools is beneficial due to the pluralism it engenders. Pluralism has long been recognized as a force for social stability in liberal democracies and is continually cited as beneficial by both Canadian and American courts. Furthermore, as a matter of law, both Canada and the United States provide for a robust protection of religious freedom that encompasses religiously affiliated law schools. This Article concludes that, as a result, regulatory authorities in Canada and the United States ought to encourage the proliferation of religiously affiliated law schools.

Barry W. Bussey (Ph.D. Candidate, University of Leiden), The Legal Revolution Against the Place of Religion: The Case of Trinity Western University Law School, 2016 BYU L. Rev. 1127:

The special legal status of religion and religious freedom in liberal democracies has become an issue of controversy among legal academics and lawyers. There is a growing argument that religion is not special and that the law should be amended to reflect that fact. This Article argues that religion is special. It is special because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a precarious position. This is in part because the right to believe and practice one’s religion has been described as a “prototypical” right. It blazed the trail for other commonly recognized rights such as freedom of association, assembly, speech, and fair trial. There is a broad need for a deeper appreciation of religion; in particular, it is vital to understand how its protection makes democracy work by keeping in check the tendency of the state to demand ultimate allegiance at the expense of individual conscience.

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)
• 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? (Feb. 26, 2017)