When legitimate rights of freedom of religion and equality collide, how should they be balanced? Is religious freedom an inherently individualistic right, or do religious communities also have rights that need to be respected? How should courts assess whether limitations on freedom of religion are causing harm, and if they are, how and when can they be justified? How can different types of diversity be furthered when one appears to come only at the expense of another?
The saga of Trinity Western University's proposed law school raises hard questions about balancing competing rights in a pluralistic, multicultural society which strives to foster both equality rights and individual and community religious freedoms. The Supreme Court of Canada's decisions last week addressing these issues show that there are no easy answers.1 While the Court ultimately affirmed the decisions of the law societies of B.C. and Ontario not to accredit the proposed law school, it did so through three different decisions and one dissent, each of which viewed the issues through sharply different lenses. While the case is a welcome step in the conversation about conflicting rights, it certainly raises as many questions as it answers.
Trinity Western's proposed law school and the Covenant
Trinity Western University (TWU) is a privately funded evangelical Christian university. While its admissions are open to people of all religious beliefs, it requires its students and faculty to adhere to the Community Covenant Agreement, a religious code of conduct which prohibits "sexual intimacy" outside of a marriage between a man and a woman.
TWU sought to open a law school. However, the law societies in B.C. and Ontario declined to accredit the proposed law school because of its Covenant, as they had concerns about equality and diversity. The B.C. courts overturned the law society's decision on the basis of freedom of religion, while the Ontario courts held that it represented an reasonable balancing of rights. The SCC heard the two companion appeals together.
Decisions of the Supreme Court of Canada: four different approaches to conflicting rights
The Supreme Court of Canada issued four separate decisions in the case. While it affirmed by 7-2 the decisions of LSBC and LSUC to decline TWU's accreditation, the four decisions show dramatically different ways to approach the question of conflicting rights, particularly when the conflict arises before a statutory decision-maker. While the judges diverge on numerous issues, two stand out: how to treat religious requirements that may pose discriminatory or exclusionary effects on the broader society, and what role Courts should play in reviewing constitutional decisions made by administrative bodies.
The majority decision (by Justices Abella, Moldaver, Karakatsanis, Wagner and Gascon) acknowledged that freedom of religion was engaged by the Law Societies' decisions. However, they concluded that the limits on freedom of religion by denying accreditation to Trinity Western on the basis of its mandatory covenant were minimal in comparison to the harm the Covenant would cause to the LGBTQ community. The majority relied in particular on the evidence indicated that while the Covenant was "preferred" by TWU and its prospective law students, it was not strictly "necessary" to their religious practice. As a result, the Court concluded that if TWU had opened its law school without the Covenant, "no evangelical Christian [would be] denied the right to practice his or her religion as and where they choose."
In contrast, the majority concluded that the Covenant imposed inequitable barriers on entry to the profession because prospective students who were LGBTQ would effectively be barred from attending TWU, or would experience significant harm by attending TWU. As a result, the "refusal to approve TWU's proposed law school prevents concrete, not abstract, harms to LGBTQ people and to the public in general." Moreover, the Law Societies had a compelling state interest to ensure the diversity of the bar; exclusionary practices in law school translated to exclusions in the profession itself.
Justice Rowe, writing only for himself, held that there was no infringement on religious freedoms at all. He concluded that freedom of religion protects only against interference with profoundly held personal beliefs, but does not protect measures by which a religious community seeks to impose adherence to their beliefs on others. As a result, he concluded that the mandatory covenant was not deserving of any protection under the guise of freedom of religion.
At the other end of the spectrum, each of Chief Justice McLachlin (who concurred in the majority's decision) and Justice Côté and Brown (who wrote a joint dissent) all held that Law Societies' infringement on religious freedom was profound. Chief Justice McLachlin highlighted the long history of religious education in Canada and the importance of studying in a religious environment where all members have agreed to live in accordance with certain principles.
However, these three judges divided on the ultimate result. Chief Justice McLachlin found that even though the infringement was serious, it could be justified by the social need to fight discrimination against the LGBTQ community. Justices Brown and Côté strongly disagreed with both the Chief Justice and the majority. They focused on the role of pluralism in Canadian society, called out the need to recognize the right to be different from mainstream society, and held that it is only by accommodating diverse beliefs and values can Charter rights be truly promoted. To the dissenters, if the Covenant promotes unequal access to law schools, it is a function of accommodating religious freedom, which itself advances the public interest by promoting diversity and advances both secularism and pluralism.
The role of the courts
One of the most controversial aspects of modern constitutional law is the so-called Dore/Loyola test for determining when administrative (rather than legislative) decisions infringe constitutional rights. While the well-known Oakes test remains a relatively strict analytical framework requiring the government to justify breaches of Charter rights, Dore/Loyola simply asks whether administrative decision-makers have proportionately balanced the value underlying the Charter right against their own statutory mandate. As a result, it has been roundly criticized for providing too much deference and, as a result, watering down the effect of constitutional rights. Court-watchers were hopeful that this case would provide the Court with an opportunity to reconsider Dore/Loyola and breathe new life into the requirement of administrative decision-makers to adhere to the Charter.
However, like everything else in this decision, the result was largely mixed. In particular, the majority's reasons uphold the Dore/Loyola framework, holding that balance, rather than justification, was the correct approach. It applied this test to these particular facts by holding that the all state actors have an overarching interest to protect and promote all Charter values, including equality and human rights. Therefore, as long as the Law Societies reasonably balanced their mandate to the profession of law in the public interest with the freedom of religion then the Court concluded it needed to defer to their decisions. The majority described this process as both "streamlined" and "robust."
All four of the judges who did not join the majority criticized its analysis as reflecting a lack of analytical rigour, particularly in is approach to "Charter values." Chief Justice McLachlin noted that it is the right itself that receives protection under the Charter, and not just the value that underlies it. Similarly, Justice Rowe criticized the use of Charter values, stating that they have "muddled the adjudication of Charter claims in the administrative context." He wrote that, where Charter rights are at stake, Courts and other decision makers have a "constitutional obligation" to expressly and rigorously address those rights using a proper application of the Oakes test.
The two dissenting judges, Justices Côté and Brown issued perhaps even more vocal criticisms of the role of "Charter values," characterizing the "majority's continued reliance on 'values' protected by the Charter as equivalent to 'rights'" as troubling. They note that values are not protected under the Charter, are unsourced and therefore subjective. They also held that values, being "entirely the product of idiosyncrasies of the judicial mind," are amorphous and undefined. They wrote that "by relying on a sweeping abstraction [i.e., equality], the majority avoids actually making explicit its moral judgment, its premises and the legal authority on which it rests." They criticize the "value of equality" as a "questionable notion against which to balance the exercise by the TWU community of its Charter-protected rights."
Interesting questions, few answers
Though much anticipated, these lengthy decisions and the dramatically different approaches to the questions the cases raise leave constitutional lawyers with more questions than answers. These include what role Charter values will play in future cases, including whether the Dore/Loyola framework will survive or be replaced by more rigorous requirements for justifying unconstitutional administrative activity.
The other interesting question that arises from TWU is how fact-specific the reasons are. The majority's decision relies heavily on its determination that the mandatory Covenant was not particularly significant, and therefore any infringement to section 2(a) was relatively minimal. However, the decision raises the question of how the case would apply in different circumstances. For example, what would have happened if there had been evidence that there were students for whom the only choice was a bona fide religious institution, including rules that conflict with equality rights, or no further education? Could this decision be extended to rules against sexual contact outside the context of marriage (marital status is a prohibited ground under section 15), rather than a rule against LGBTQ students? What happens when a core tenet of a religion educational institution is alleged to be discriminatory (e.g. differential treatment of married and unmarried students, or differentiated treatment of boys and girls)? While the contours of the proper approach to constitutional question in the administrative law context continue to evolve, the same is true of the role of religious institutions in a pluralistic and multicultural society.
The case also provides a notable contrast to a similar issue in the United States. In the recent Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission decision, on a 7-2 split, the Supreme Court of the United States found in the favour of a baker who refused to bake a cake for a gay couple. The majority emphasized that the First Amendment requires the government (in this case the Colorado Rights Commission) to take freedom of religion into account when considering whether someone's prima facie discriminatory conduct arises from sincerely held religious beliefs and the expression of those beliefs. While the results are obviously different, it is not clear that the underlying analysis of the respective majorities' reasons – the need to balance, the requirement of tolerance, the need to foster pluralistic societies – are in sharp contrast with one another.
1 Law Society of British Columbia v. Trinity Western University 2018 SCC 32 and Law Society of Upper Canada v. Trinity Western University, 2018 SCC 33
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