Court looks at charter rights versus religion

Case contained a classic conflict John D. Whyte says

Last week, the Supreme Court of Canada delivered its decision in Law Society of British Columbia (LSBC) v. Trinity Western University (TWU), a case that, in the context of a public regulatory decision, pitted religious freedom against equality rights. A majority of the court held that the B.C. Law Society did not violate the university’s freedom of religion in refusing to approve its proposed law program, participation in which required students to sign a covenant not to engage in sexual intimacy outside of marriage between a man and a woman.

This covenant creates discrimination against those who practice homosexuality and, more generally, expresses TWU’s general institutional hostility towards homosexuality and homosexuals.

LSBC was faced with deciding if the proposed TWU law program would, in light of the covenant barring homosexual practice, meet its standards for suitable professional legal education. After conducting a referendum of its members, it decided that TWU’s covenant violated public interest in that it denied equal access to the law profession on the basis of sexuality. Case law under the Charter of Rights and Freedoms has said this is impermissible. Hence, the court supported this law society decision.

TWU’s practice of requiring staff and students to sign the covenant was following a religious belief that Christianity forbids homosexuality. The case presented the classic conflict between the constitutionally recognized liberty to hold religious beliefs, and live by them, and the constitutional commitment to avoid inflicting unequal treatment on people because of basic human characteristics such as gender, race, disability or sexual orientation.

There is no obvious, or necessarily correct, resolution of such conflicts. When they come before a court for resolution, there must be both an examination of the appropriateness of the regulatory body’s reasoning and a weighing of the harm that would be done to each side if the decision were to go against its interest.

The court’s majority approached the first task by agreeing that the law society had a duty to protect public interest and this includes ensuring equal access to the legal profession, preventing harm to aspiring LGBTQ students and, generally, protecting the values of equality and human rights. It did, however, agree that the law society’s decision interfered with religious belief in a manner that is more than trivial. It went on to say that the law society decision must reflect a sensible balancing of interests.

It agreed with law society’s decision for three reasons. First, the restriction on access to legal education created by the covenant imposed a serious cost on gays and lesbians seeking access to the legal profession. Second, the law society’s statutory mandate to serve the interests of the public includes not imposing barriers to access to participation in the administration of justice. Third, religious freedom and integrity were not fundamentally compromised by disallowing the covenant; religious beliefs and practices can still be institutionally promoted without barring from participation those who are unwilling to swear to match their conduct to those beliefs.

The dissenting opinion was based on the claim that the law society should not have considered societal values, but only the adequacy of the legal training that TWU would provide. But law societies are statutory public agencies and, the court said, should not exercise their powers, whatever their narrower purpose, in a way that permits placing discriminatory burdens on persons seeking to become lawyers.

Equally, law societies should be careful not to impose unnecessary restrictions on religious liberties. The resolution to this conflict arrived at by the court’s majority is that the burden of excluding homosexuals from pursuing a route into the legal profession (for some it might be the only route) is more injurious than requiring a university to have a law program in which there will be some who have declined to forswear homosexual practice.

For the court, following principles of equality, in this context, weighed more than giving scope to exclusions based on a religious belief.

There is no obvious, or necessarily correct, resolution of such conflicts.