Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

The decision is the latest in a line of cases relating to the attempt of TWU, a private Christian university located in British Columbia, to start a law school. Producing law graduates is a worth-while exercise on its own, of course, but even better if one’s graduates can be admitted to practice as lawyers by the relevant professional bodies. TWU obtained general accreditation for its graduates to be admitted to practice in Canada through the Federation of Law Societies of Canada’s Canadian Common Law Program Approval Committee (see para [36] of the judgment). However, this approval was still subject to an approval process by the separate Law Societies of the Canadian Provinces.

Six Provincial Law Societies have approved TWU graduates being admitted in their jurisdictions. Three, however, have refused: British Columbia, Nova Scotia, and Ontario. Their refusal has been based on the fact that TWU students and staff are required, on commencing at the University, to undertake to comply with a “Community Covenant” reflecting the standards of life expected of those involved in an evangelical Christian institution. One of those standards is that signatories to the Covenant, as well as undertaking to observe other Biblical virtues,

must abstain from various activities, including “sexual intimacy that violates the sacredness of marriage between a man and a woman.” (at para [23])

This, it is claimed by those opposed to TWU, amounts to discrimination against same sex attracted persons (and of course those who wish to engage in unmarried heterosexual sexual activity.)

I have previously commented on earlier stages of the various cases involving TWU here and here. As noted by McPherson JA here, at [9]:

The law society decisions refusing accreditation in British Columbia and Nova Scotia were overturned by superior court decisions in both provinces: see Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326, 392 D.L.R. (4th) 722, and Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25, 381 D.L.R. (4th) 296. These decisions have been appealed; the Nova Scotia appeal was heard in April 2016 and the British Columbia appeal was heard in June 2016.

In Ontario the “Benchers” (as members of the Law Society of Upper Canada, LSUC, are called) voted 28-21 to deny accreditation to TWU law graduates on the basis of the Covenant undertakings. The Ontario Divisional Court upheld that decision against an attempt at judicial review, and this appeal to the Ontario Court of Appeal followed.

The grounds for challenge to the LSUC decision by TWU were reasonably straightforward: Canada has a Charter of Rights; article 2(a) of the Charter protects freedom of religion; the decision by the LSUC (relevantly a “public body” due to their accreditation powers) was an undue restriction of the religious freedom of both TWU as a body, and also of a student who wished to graduate in law from TWU, Brayden Volkenant, who was also involved in this case.

Sensibly McPherson JA accepted that the decision of the LSUC was indeed a burden on religious freedom, and that there was a possible claim both from Mr Volkenant (at [91]) and also by TWU as a corporate body (at [94]).

Nevertheless, McPherson JA (with whose judgment the other members of the Court agreed) concluded that the interference with religious freedom here was justified as part of a process which had to “balance” religious freedom with the right not to be discriminated against enjoyed by potential TWU students who were same sex attracted.

TWU argued that it did not exclude students on the basis of their “sexual orientation”. Both homosexual and heterosexual students were treated equally, being asked to conform to Biblical standards which required no sexual activity outside marriage understood in a Biblical sense. But as with many other decisions in this area (though not entirely all) the Court here refused to accept a distinction between homosexual orientation and homosexual activity. McPherson JA quoted with approval the following remarks of the Divisional Court below:

 [117]…in order to attend TWU, [students] must sign a document in which they agree to essentially bury a crucial component of their very identity, by forsaking any form of intimacy with those persons with whom they would wish to form a relationship. Contrary to the contention of the applicants, that requiring person[s] to refrain from such acts does not intrude on the rights of LGBTQ persons, it is accepted that sexual conduct is an integral part of a person’s very identity. One cannot be divorced from the other. As Rothstein J. said in Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 S.C.R. 467, at para. 124:

“Courts have thus recognized that there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself.”

In other words, prevailing sexual “orthodoxy” is that a person’s very identity is tied up with their sexual activity. Such a view, it is submitted, is by no means self-evidently true; human beings have found meaning and significance in many areas of existence, sexual activity being only one among many. The view is, of course, also directly contrary to the teaching of many religions, which hold that in some situations it is an honourable thing to refrain from sexual activity in the interests of serving God or one’s neighbour. But it seems that there is an increasing intolerance for this religious perspective.

There is much more to be said in critique of this decision, but I will leave that for others for the moment. TWU has already indicated that it plans an appeal to the Supreme Court of Canada. Despite the short treatment it received in this Ontario decision, there is an important prior decision of the Supreme Court dealing with almost identical issues (save that a teacher is not a lawyer); see Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, where the SCC held that despite its Covenant, TWU was entitled to train and send out teachers into the community. It is to be hoped that the Supreme Court considers these issues carefully when asked to do so. In a society committed to genuine diversity and tolerance, surely there is room for a confessional Law School to provide top quality legal training in accordance with Biblical values, to those who choose to study there.