CLF Intervenes in Support of Religious Freedom and Diversity in TWU Litigation

Litigation over Trinity Western University’s proposed law school continues at the Court of Appeal levels in Ontario, Nova Scotia, and B.C. CLF has been granted standing to assist the courts in Ontario and Nova Scotia as an intervener, and has applied to intervene in B.C. Last week, CLF filed a 10-page factum with the Ontario Court of Appeal and a 25-page factum with the Nova Scotia Court of Appeal.

CLF defended the freedom of religious law students and lawyers to express, exercise, and associate on the basis of their faith. This freedom includes the right to attend an academically accredited religious law school where students agree to abide by a Christian ethic.

In Ontario, the Law Society of Upper Canada (LSUC) argued that denying accreditation to TWU’s law school did not infringe on anyone’s Charter rights or freedoms. LSUC presented the study of law as a “ventur[ing] into the public domain” where, it contends, religious freedom diminishes. LSUC has not precluded Christians from studying law together in a Christian community, it argues; rather, it simply has not conferred the “benefit” of accreditation on TWU’s program because TWU’s Covenant is allegedly discriminatory. The Court below described the loss resulting from refusal to grant accreditation as an economic loss.

CLF countered such arguments by explaining how the refusal to accredit a Christian university interferes with living out the Christian faith. For those who desire to attend TWU because no other law school or campus community can similarly prepare them to practice law in accordance with their faith, they are faced with a difficult choice. Either they forego a TWU education because the cost of earning an unaccredited degree is too great or they attend TWU but forego the ability to actually practice law unless they earn further credentials elsewhere.

CLF believes that studying law in community with other Christians who are committed to submitting their thoughts and lives to God’s Word is an expression of one’s faith. We also believe the practice of law is a calling from God and a unique opportunity for ministry. Christians are called to seek justice: “learn to do good; seek justice, correct oppression; bring justice to the fatherless, plead the widow’s cause.”   A Christian’s faith governs every aspect of his life. The integration of law with faith is essential for the Christian to “seek justice”. The study of law, then, is neither a “peripheral” matter, nor a “secular pursuit”. It is one of the most direct ways in which a Christian can fulfill her biblical calling to seek justice. The loss is not, therefore, economic, but religious. The freedom to live out one’s religious calling—and to help others do the same—is impeded by LSUC’s decision.

If there were any violations of religious freedom, religious expression, freedom of association, or religious equality, LSUC argued that such violations were justified because its statutory duty to act “in the public interest” required it to deny accreditation to TWU.

In response, CLF argued, first, that LSUC’s duty to protect the public interest is limited, in the statutory context, to ensuring its licensees meet appropriate standards of learning, competence, and conduct. Second, CLF argued that if LSUC’s jurisdiction to protect the public interest were as broad as LSUC argued, and informed by “Charter values” and “human rights legislation values”, that the public interest is not limited to the “human rights value” of LGBT equality, but includes religious equality, religious diversity, institutional and associational diversity, diversity of opinion, free expression, and so on.

In light of all relevant human rights considerations, and the fact that Ontario’s Human Rights Code provides specific protections for religious institutions, including schools, it cannot be in the public interest to refuse to accredit a school on the basis that it holds to a religiously-informed understanding of marriage and morality.

We invite you to read our Ontario factum, here, and share your thoughts with us.

CLF made similar arguments in Nova Scotia. We also invite you to read our Nova Scotia factum, here. Since we had more space, we were able to elaborate significantly on some of the arguments made in Ontario. The Nova Scotia factum contains more detailed arguments about the nature of the freedoms protected in sections 2(a),(b),&(d) of the Charter, including the fact that they protect the freedom to hold communal ethical commitments. It also explains how the Nova Scotia Barristers’ Society (NSBS) effectively requires TWU to comply with the Charter, though TWU is not subject to the Charter, while NSBS, which is subject to the Charter, clearly violates it.

CLF further warned against equating the “public interest” with public opinion about marriage, and argued that the fear of being misperceived by the public as endorsing TWU’s beliefs about the nature and purpose of marriage was no basis for the NSBS’s decision. Finally, our Nova Scotia factum also has a more detailed discussion of the duty of the state to be neutral towards religious beliefs.

CLF is grateful for the help of its members Deina Warren and Philip Fourie, and Peter Jervis, who worked with CLF’s in-house legal team (Derek Ross and John Sikkema) to complete the Nova Scotia and Ontario factum, respectively.