Litigation Update: Trinity Western University v. Law Society of Upper Canada

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Friday, July 13, 2018 during a live teleforum conference call held exclusively for Federalist Society members.       

 

Laura Flint:  Welcome to The Federalist Society's teleforum conference call. This afternoon, our topic is a Litigation Update on Trinity Western University v. Law Society of Upper Canada. It's hosted by our Religious Liberties Practice Group. My name is Laura Flint, and I'm the Deputy Director of Practice Groups here at The Federalist Society.

 

            As always, please note that all expressions of opinion are those of the expert on today's call.  

 

            Today, we are happy to have with us Derek Ross, Executive Director and General Counsel at the Christian Legal Fellowship. After our speaker gives his opening remarks, we'll go to audience question and answer. Thank you for speaking with us, Derek. The floor is yours.

 

Derek Ross:  Well, good afternoon, everyone. And thank you to Laura and the team at The Federalist Society for inviting me to present on this case. And thanks to all of you for listening and for your interest in this case. In terms of outline, my plan is to spend a bit of time providing a little bit of background on the litigation and then a summary of the Supreme Court of Canada's decision with some commentary and then open it up for questions. And just by way of background, I had the privilege of being directly involved in this litigation from the very beginning. I was involved in all seven court cases, including the appeal at the Supreme Court, where I represented Christian Legal Fellowship—Canada's association of Christian legal professionals—as an intervenor. And we argued there that Trinity Western's religious freedom ought to be accommodated and we'll get into the facts of the case and the Court's decision.

 

            But, first, let me just share a brief word on why I think the Trinity Western case is relevant to lawyers in the United States and to the American conversation in general. Well, our jurisprudence and legal systems are different in many ways, and our cultures our different in many ways. We do share many similarities as neighbors. We share a common law tradition. Both Canada and the United States have constitutionally entrenched Bills of Rights, which protect religious liberty as well as equality and other fundamental rights and freedoms. Our Bill of Rights is called the Charter, the Canadian Charter of Rights and Freedoms.

 

            And so the challenges we experience in constitutional interpretation and litigation aren't necessarily unique to our respective jurisdictions. In fact, I think in many contexts we have shared challenges. And right now, for example, I think both of our legal systems are struggling with the question of how we ought to accommodate competing sets of rights when they appear to be in conflict, especially in the context of recognizing same-sex marriage, which has been in place in Canada since 2005. We encounter some challenging and difficult questions about how religious beliefs and practices ought to be accommodated when cultural attitudes on many of these issues are shifting. So even more to the point in this case and ones like it, we face the question of how do we strike the appropriate balance between religious freedom and LGBT equality when those rights appear to clash.

 

            So I don't think that's a challenge unique to Canada. I think we're seeing that demonstrated in some recent cases out of the U.S. Supreme Court, such as Masterpiece Cakeshop and others. So talking across the border about these issues is important, and I think it's going to be increasingly important. And I thank you for your interest in this case and in what's happening north of the border.

 

            So some background about the case itself. Unlike the United States, there are no faith-based law schools in Canada. In fact, there are no private law schools of any kind in Canada. Trinity Western University is an evangelical university, a well-respected evangelical university, and they had plans to open the first private religious law school in Canada. Trinity Western received preliminary approval from the Federation of Law Societies of Canada and was also granted authority by the Government of British Columbia, where it's located, to issue a law degree. So it had met all of the necessarily prerequisites for a law program, but Trinity Western's proposed law school faced opposition from several provincial law societies. So in Canada, those are the quasi-governmental bodies responsible for regulating lawyers, similar to mandatory bar societies in the United States.

 

            So these professional regulators, their opposition to Trinity Western was based on Trinity's Community Covenant. That's a code of conduct, which Trinity has, which all staff and students must abide by. And specifically, the Law Societies took exception to the traditional view of marriage expressed in the Community Covenant. The Covenant required a number of things, much of which is noncontroversial. But one provision that generated a fair bit of controversy was that members of TWU's, that's Trinity Western's community, must abstain from, and this is the quote, "sexual intimacy that violates the sacredness of marriage between a man and a woman."

 

            So the Law Societies argued that this code of conduct effectively excluded LGBT students from attending Trinity. And so the Law Societies refused to recognize Trinity's law degree. This effectively meant that graduates from Trinity's law program would not be licensed to practice law in the provinces of British Columbia and Ontario, which are really the two -- two of the largest provinces in the country.

 

            Now, some of the -- one of the interesting features of the case is that the Law Societies didn't actually provide reasons for their rejection of Trinity Western. In fact, in British Columbia, they just had a referendum where they put it to popular vote amongst lawyers, which ultimately voted against TWU. And in another -- and in Ontario, the Ontario Law Society had a debate amongst the elected leaders of the Law Society, but they, too, put it to a vote and the decided 28-21 not to approve Trinity Western without issuing any reason. So procedurally, there were a lot of questionable issues. And frankly, this type of decision-making was really unprecedented for the law societies in Canada, which historically, have been more limited in their activities to regulating lawyers and ensuring that they are acting ethically and competently.

 

            So Trinity challenged these decisions in court. And in their arguments before the courts, the Law Societies made it clear there that the reason they rejected Trinity was because of the Community Covenant. There was no doubt that Trinity met all technical, legal, educational, criteria. There was never any issue that it wasn't of the requisite academic caliber. And, in fact, the Law Societies never disputed that Trinities graduates would be competent, professional, and ethical. The Law Societies only rejected Trinity on the basis that they objected to its religious code of conduct and the exclusionary effect that this code of conduct would have on students, especially LGBT students who do not share Trinity religious beliefs.

 

            So the issues in the litigation really divided the bar in Canada, and even the courts. Prior to reaching our Supreme Court—and in Canada, the Supreme Court is like the United States the highest court of the land, the final authority—prior to reaching the Supreme Court, Trinity's litigation made its way through two levels of lower courts in three provinces. So we actually had six lower-court decisions. Four of those courts decided in favor of Trinity Western, finding that its constitutional right to religious freedom had been unjustifiably infringed. And two courts decided in favor of the Law Societies. And ultimately, these were appealed to the Supreme Court, which issued its ultimate decision last month.

 

            Before we talk about the Supreme Court's decision, though, some further context I think would be helpful because some of the nuances of this case have been lost, I think, in the public narrative and in the media narrative.

 

            So, for example, many have tried to frame Trinity's Community Covenant as, essentially, a no-gay-students-allowed policy. But its provisions only spoke to a religious conception of marriage applicable to all students regardless of sexual orientation. In fact, some judges in the lowers courts, even those that decided against Trinity Western, acknowledged that the Community Covenant had an equal effect on any person, including heterosexual students, who preferred not to engage in the institution of marriage.

 

            It's also relevant, I think, to note that LGBTQ students have attended and continue to attend Trinity Western. And some of those students even filed affidavits in the litigation affirming that they found it to be a welcoming environment. Now, their experience may not be universally shared, but it's inaccurate to state that Trinity simply bars LGBT students from attending. That's simply not true. And the dissenting Supreme Court justices recognized this. They said that they purpose of Trinity's admissions policy is not to exclude LBGTQ persons or anybody else but to establish a code of conduct which ensures the vitality of its religious community.

 

            But it was not just the community's Covenants on marriage that decision makers found objectionable. The Law Society of Ontario objected to Trinity referring to itself as a "distinctly Christian environment." And they argued in their factum at the Supreme Court, their written submissions, they argued that this, and this is the quote, "discriminated against individuals who do not share a thoroughly evangelical Christian world view, including religious minorities such as Jews, Muslims, Buddhists, Atheists, and Agnostics," end quote. And the Ontario Divisional Court, the lower court in Ontario, accepted this argument and agreed that, this was their term, "the discrimination inherent in the Community Covenant extends…to persons who have other religious beliefs." So really this case was about whether there was room in Canada for a distinctly Christian law school.

 

            So how did the Supreme Court decide this case? The Court was quite fractured on a number of issues. But a majority of 5 judges, 5 of the 9, decided that the Law Societies' decision was reasonable. And so they upheld the Law Societies' decisions. Two other judges agreed in the result but for different reasons. And then two judges dissented. So, essentially, we had a 7-2 decision, with 7 judges deciding in favor of the Law Societies and 2 dissenting.

 

            So what did they decide? Before we even got into the religious freedom and constitutional issues, there was a preliminary question about the role of the bar societies. Does a professional regulator even have the jurisdiction to weigh-in on these sort of public policy moral issues? Or are they limited to simply ensuring that graduates who come to their door seeking a license are professional, competent, ethical, and qualified? That was a big debate in the litigation. And one might take issue with the idea that a state regulator can preclude a law student from practicing law because of the religious beliefs of their law school. And we argued, Christian Legal Fellowship argued, that if they could do that to law students, couldn't they do that to any lawyer whose personal beliefs might differ from the state approved view?

 

            That generated some support in the lower courts, those concerns. The Supreme Court didn't directly address that question. But the majority did say that the Law Societies do have a larger role than just ensuring the qualifications of prospective lawyers. They said that the Law Societies could take considerations other than professional fitness into account. The majority said that Law Societies have an overarching objective of protecting the public interest. And this includes upholding a "positive, public perception of the legal profession." And so for the majority judges, this meant ensuring that access to the legal profession is not limited by personal characteristics.

 

            Now, the dissent had a number of problems with this—and, by the way, Canadian judicial dissents are often very measured, often very polite, kind of like Canadians in general, I guess, or at least how Canadians like to view ourselves—but this dissent was quite direct and at times, frankly, it was scathing. Unusually so for a Canadian dissenting opinion. The dissent said that the courts should not be concerned with public perception. They should be concerned with the law. And the dissent interpreted the Law Societies' legal mandate as being much more limited. And based on their statutory interpretation, it was very clear in their view that law societies are limited to determining a student's competence, not their beliefs of the law school that they attend. And they also said, the dissent also said that Trinity is not the gatekeeper to the legal profession. The Law Society is the gatekeeper. So the idea that Trinity is somehow impeding access to the profession was simply not accurate in their view. They saw Trinity as just providing an additional option for students.

 

            But then we got into the really controversial issue, which is the constitutional human rights question. So even if the Law Societies have jurisdiction to consider the religious practices of Trinity in deciding whether to accept its law degree, all of the judges agreed that the Law Societies could only exercise that jurisdiction in a manner that respects the Constitution, which is the supreme law of Canada. And our Constitution, Canada's Constitution, explicitly protects the free exercise of religion as the United States' Constitution does.

 

            The majority accepted that the Law Societies infringed this fundamental freedom. They acknowledged that by refusing to accept a law degree from Trinity Western, the Law Societies were limiting the religious freedom of Trinity Western and its community. But they said that this violation was justified because it advanced the objective of the Law Societies, which was framed as protecting the rights and freedoms of all persons. And here the reasoning, in my respectful view, gets especially strained because the majority acknowledges that a fundamental constitutional freedom has been violated, but they say that's okay because it advances the goal of protecting rights and freedoms. It's an incoherent leap of logic, and especially when we ask, "Whose rights and freedoms are the rights protecting? Certainly not Trinity's. But who has a legal right on the other side of the equation?" Strictly, legally speaking, no one has a legal right to attend a private, religious university. It's voluntary. It's a private community. No one is compelled to attend. Trinity Western is not state operated. Trinity Western is not a state actor. It's not bound by the Constitution. In fact, to the contrary, the law views Trinity Western just as it views a private citizen, as one that benefits from the protection of the Constitution. So really there was no plaintiff on the other side saying that their legal rights were being violated by Trinity Western.

 

            But the Court said that if LGBT students were to attend Trinity, they would experience harm in that they would be asked to essentially disavow a core component of their identity. And for the majority, this undermined the values of equality and diversity. And this was relay a major point of contention in the case between the majority and the dissent. How can a value, which is not defined and does not appear in the Constitution, override someone's constitutional right, which is clearly defined and which does explicitly appear in the Constitution? The majority spoke a lot about the need for the Law Societies to promote the public interest, which the majority said included shared values—shared values of equality and human rights. But none of this was explicitly grounded in the law. These were really philosophical notions, not legal ones.

 

            So in the defense view, and in my view, the majority prioritized a certain ideology and a certain conception of equality above Trinity's clearly defined legal rights. And the dissent took issue with this. The dissenting judges said that this can set us on a very dangerous path when we say we can simply override constitutional rights with values. And the dissenting judges said the value of equality is so vague and abstract it can mean almost anything, and it varies from judge to judge. One of the lines that the dissent gave was that these values are "entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so." So they view reliance on values in legal adjudication as very dangerous.

 

            So that is how the Court split, but ultimately seven of the nine upheld the Law Societies' rejection of Trinity Western. So what does this mean practically? Trinity has said that they don’t plan to open a law school anytime soon. The Court did leave some options open. The Court went out of their way -- the majority went out of their way to stress the limited scope of the decision. They said that the effect of the decision was limited to preventing students from studying law at Trinity with a mandatory covenant. So one of the questions now is can Trinity make their Covenant voluntary? But that question, even itself, raises a lot of concerns because that would essentially undermine the whole purpose of what makes Trinity distinct from their perspective. From their perspective, maintaining a Community Covenant is central to their distinct religious identity.

 

            So that's where we stand now, and I'm happy, Laura, to pass it back to you and perhaps we can have some questions.

 

      Laura Flint:  Let's go to audience questions. In a moment, you'll hear a prompt, indicating that the floor mode has been turned on. After that, to request the floor, enter star and then the pound key.

 

            When we get to your request, you'll hear a prompt and then you may ask your question. We'll answer questions in the order in which they are received. Again, to ask a question, please enter star then the pound key on your telephone keypad. 

 

            Looks like we have three questions pending, so let's go to that first audience questions.

 

Caller 1:  People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which could either be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less render them necessary. And that's from Adam Smith.

 

            So this would seem to be an argument that Adam Smith is correct and that societies should not regulate their own trade. Any comment on that?

 

Derek Ross:  So the question there—thank you for the question—is, essentially, bringing into question the self-regulation of the legal profession by the legal profession, if I characterized that right?

 

Caller 1:  Yes. Yes, that's right.

 

Derek Ross:  Yeah, I think that's a legitimate criticism. I think there's a risk of throwing out the baby with the bathwater. I think self-regulation has its place. But what was concerning about this was how widely the Supreme Court interpreted the Law Societies' mandate. If you look at the way the dissent framed it, I think it's perfectly appropriate for lawyers to be responsible for ensuring that the profession is acting competently, ethically, professionally; to discipline lawyers that aren't acting ethically, and competently, and professionally.

 

            But what makes lawyers experts on what is and what is not in the public interest? That's a whole new debate, and this idea that lawyers that are only accountable to other lawyers, which is how it works in Canadian Law Societies—the leaders of the Law Societies are just elected by the lawyers—the idea that they're equipped to make these far-reaching public policy decisions and wave constitutional rights when, in fact, in BC they didn’t even do that. They just sent it to a referendum. And the idea that the Supreme Court ought to defer to those decisions, I think that's really troubling.

           

            And, again, I think this is an area where regardless of where one falls on this specific debate, whether you agree with the outcome or not, I think people are rightly troubled by the way we got to this outcome. We got to this outcome by judges basically saying that even though these Law Societies didn't give any reasons, even though they didn't really clearly enunciate how or why they thought rejecting Trinity Western would be in the public interest, and even though those decisions violated constitutional rights, that's acceptable because we're still advancing these good, essentially, progressive values. And so what's to stop a court filled with conservative judges, for example, overriding rights that are important to the progressive community in the name of conservative values? I mean, this is why values language is not helpful in adjudicating constitutional disputes. We have to interpret and apply the law, not our conception of the good society, or our theory of social relations.

 

            And I think that, perhaps more than anything else, is what's deeply troubling about this decision.

 

Laura Flint:  Let's go to our next audience question.

 

Caller 2:  Hi, Derek. Thanks for taking the time today to talk about this Trinity Western case. My question has to do with religious liberty. It's a term that we hear thrown around quite a lot, but what, in your opinion, should be the scope of religious-liberty protections for religious individuals? And, kind of furthermore, where would you draw the line between what would be a disagreement versus what would be a discrimination under the law, especially as it pertains to a case like this?

 

Derek Ross:  Thank you for that question. Certainly there are times, there are cases in which religious liberty needs to be limited. Religious freedom is not an absolute right. No one, I don't think anyone disputed that in this case. Religious freedom can't be exercised in a way that harms others, for example. The leading case in Canada is called Big M Drug Mart and there, and until now, this has really been the leading explanation of the boundaries of religious freedom. The Court there said that freedom means subject only to what is "necessary to protect public safety, order, health, morals, or the fundamental rights and freedoms of others, no one [can be] forced to act in a way contrary to [their] beliefs."

 

            So the question really is does one's religious freedom -- is it being exercised in a way that harms others? Does allowing a private, religious community, like Trinity Western, to maintain its belief in marriage, does that harm anyone? The majority seemed to think so. But that is highly contestable. One can support same-sex marriage and the right to same-sex marriage can be preserved, while also supporting the rights of communities like Trinity—any religious community really—to maintain their own beliefs in what marriage is and what they, as a community, choose to believe.

 

            I mean, Trinity Western never called for marriage laws to be changed in Canada. They weren't looking to do that. They were just looking for the freedom to say for us, for our community, this is what we believe God designed marriage to be. And I don’t understand how allowing them to do that injures or harms anyone else's rights. And I think that -- that is one of the things I think the majority really got wrong in this case. Trinity doesn't take away anyone's right to marry. They couldn't. They're not a government. They're a voluntary, religious community. And one of the things we said was this isn't a zero-sum game. Allowing one community to believe in traditional marriage doesn't take away anyone else's rights.

 

            And, frankly, that is how Canada has historically approached this issue. For example, in the same-sex marriage reference case, that was a 2004 Supreme Court case that affirmed that Canada's government could pass a law recognizing same-sex marriage. So it was a real landmark decision for the LGBT movement. But that case also said, in the same decision, that in doing so, this would not take away any rights from religious communities; that religious officials, religious communities would retain their right to adhere to traditional marriage. And the Supreme Court specifically said that priests and religious officials would not need to officiate same-sex marriage.

 

            That, in my view, is the right approach because it recognizes that part of being a free and democratic society means that we can and have to live on the same real estate even in deep disagreement on these really important issues. But we can still do so and accommodate difference. That's what it means to be in a free and democratic society. But I'm concerned, and others are concerned, that this most recent decision from the Supreme Court is moving us in a different direction.

 

Laura Flint:  We have two questions pending, so let's go to the next audience question.

 

Michelle Roberts:  Hi, good afternoon. This is Michelle Roberts of the New York Young Lawyers chapter. Our chapter has been following this case closely and we held an event in May with Judge Marc Nadon of the Federal Court of Appeals to discuss the case. So thank you for drawing attention to this case.

 

            My question is what is the limiting principle of this ruling? Can the government also withhold firefighters and police officers and other government officials from providing services or benefits to Trinity Western? The Court in Trinity Lutheran at the Supreme Court of the United States last term grappled with this and came out on the other side. So what is the limiting principle of Trinity Western?

 

Derek Ross:  Thank you and another great question. And it really is interesting to juxtapose Trinity Western at the Supreme Court and Trinity Lutheran at the U.S. Supreme Court. In terms of the limiting principle, one thing that I think is important to recognize is that, as I said earlier, the majority did go out of their way to stress that their ruling was limited in scope to the specific facts before it and to the specific legislative framework of the Law Societies, and basically said this would not necessarily come down the same way in another context. So they stressed that the decision would not, for example, prevent students from adhering to the Covenant or associating with those who do. The effect of the decision was just limited to preventing prospective students from studying law at Trinity with a mandatory covenant. So that's, in terms of future cases, there's nothing in Trinity Western that is absolutely, strictly, definitively binding on how courts deal with future questions.

 

            Having said that, though, there's no question that decision makers, state officials are going to be invoking the reasoning in Trinity Western to justify their decisions and their actions, especially when they violate religious freedom rights, and when the want to justify those violations by saying, "Well, we're still advancing an important public policy goal."

 

            So, absolutely the questions moving forward are significant. You mentioned the whole question of issuing government licenses to other categories. That is one of the really concerning aspects of the decision. If it's true that recognizing a law degree from an institution amounts to effectively a state actor endorsing its religious beliefs or practices, does that mean that the government can always deny a license or benefit to any organization which holds views that the state does not approve of? And that's really troubling. And even now, there's some questions about what this means in other cases that are making their way through our legal -- our court system, one of which you may be familiar with involving the Canada Summer Jobs program here in Canada.

 

            That's a federal grant program, which provides funding to organizations to hire students for summer jobs. This year for the first time, prior to even this Trinity Western case being decided, the Canadian government introduced a new requirement so that anyone that is applying for funding must attest that their core mandate respects certain values, including reproductive rights, which the government has clarified means access to abortion. So many religious organizations, and even non-religious organizations, have been unable to do so. They've said we either are pro-life or we just don’t take an issue on abortion, and you're forcing us to take a side on this very divisive moral issue. And what on earth does this have to do with getting funding for hiring students for a summer job? Why are we imposing this values test? And constitutional challenges have been launched by several organizations, and there we see there may be some parallels in the issues raised in Trinity Western because it all comes back to this question of can the government deny public benefits to organizations or individuals that do not support their values or their beliefs?

 

            Now, again, I'm of the view that Trinity Western can be distinguished. But there's no question that this case will be invoked in all of these cases by those who want to justify actions which infringe on constitutional rights, but which they see as still advancing the greater good. So time will tell. Our hope and our advocacy will be focused on limiting the extent of the application of this ruling outside of its specific facts. But it is something I'm concerned is setting Canadian jurisprudence on a very dangerous trajectory.

 

Laura Flint:  Before our next audience question, I'd like to make a brief announcement. Our next teleforum conference call is scheduled for Tuesday July 17th at 12 noon. That call will be on antitrust regulation of the use of intellectual property. Again, to ask a question, please enter star, then the pound key on your telephone keypad. Let's go to our next audience question.

 

Herman Bouma [sp]:  Yes, thank you. This is Herman Bouma in Washington D.C. And to some extent you've already addressed my question, which does relate to the ramifications of the decision. And I was interested in two specific situations. One is where an individual went to a Christian college and then went to a secular law school and was seeking to get a license to practice law, I was wondering if the decision might apply there? And the second situation's where an individual went to, say, secular college and a secular law school, but the individual himself believes that marriage is only appropriate between a man and a woman. I'm wondering if the case might be extended to apply in that case also, so to deny the individual a license to practice law in Canada.

 

Derek Ross:  Thank you very much for your question. On its face, no. the decision does not require that outcome in those instances. Individuals are still free and will still be entitled to be licensed if they attended a religious undergraduate university. And certainly, nothing in the decision says that existing lawyers who adhere to a traditional belief in marriage will be in any way penalized.

 

            But, again, the concern is the chilling effect that this will have and is it just a matter of time before those challenges start to percolate. One of the issues in Canada is that in Ontario, just as one example, all lawyers are now required to create and abide by something called a Statement of Principles. And that Statement of Principles must acknowledge that the lawyer will promote equality, diversity, and inclusion. This is brand new this year. It's generated significant controversy because it's very unclear really what this entails. It's generated a lot of concern about overreach, about compelled expression, and about whether lawyers can actually be forced to make a statement that they will promote equality, diversity, and inclusion. And one of the issues, of course, is well what conception of equality must lawyers promote? If a lawyer expresses views about the traditional definition of marriage, would he or she be undermining that obligation to promote equality?

 

            So that's another case that's currently being challenged. It has not yet been heard by a court. But we can sort of see how the arguments that were invoked in Trinity Western may have implications in those other cases. But strictly speaking, right now, no. And this is one of the good things about the decision is that the Court did make it very clear that it doesn't not apply to any circumstances outside of the specific issue of Trinity Western's mandatory Community Covenant.

 

Laura Flint:  Again, to ask a question, please enter star then the pound key on your telephone keypad. Let's go to our next audience question. Go ahead, caller. You may be on mute.

 

Chris Garvy:  Yes, I was on mute. Chris Garvey. I'm the libertarian candidate for Attorney General of New York. And in New York we have a new requirement for continuing legal education called Diversity Training. What is Diversity Training? And the patent law association, the International Patent Law Association in New York had a course that purported to do some diversity training, and that we had some women teaching it who were saying basically, well, we're very underrepresented in the number of patentees. If you have a woman as one of your inventors, you're likely to do better commercially. And that seemed to be the lesson that we were supposed to take from that. But who knows what Diversity Training is. And this requirement that we have a course in it is pretty weird. Would you like to comment on that?

 

Derek Ross:  Thank you for your question. You know, I -- personally, I don’t find that as objectionable because these are courses. I don't think there's anything that engages our constitutional rights to be expected to take part in training, even in courses that we find might not be particularly helpful or beneficial. I think there's arguments to be made there that that is perhaps outside of the scope of the jurisdiction of a law society. But that's much further removed from this idea that you can't even have a law school that Trinity Western wanted to open that met all requirements. That they were otherwise qualified to do it. They weren't asking for funding from the government. They weren't asking for any benefit other than to not be shut down effectively. And do be denied that, solely on the basis of their religion is so unconscionable.

 

            But you do make a good point. When we raise these terms about equality and diversity and inclusion what do we really mean by that? In my view, there is a very rich conception of equality and diversity that makes room for different beliefs; that makes room for communities like Trinity Western. If we're really wanting to talk about diversity, it needs to be authentic. And it needs to accommodate space for groups whose views may not conform to the mainstream. I mean, here's one thing that the U.S. and the American -- the American and the Canadian Constitution have in common. They both have been interpreted to protect religious minorities from majoritarian values, not to force religious minorities to conform with majoritarian values.

 

            And this is why this whole idea of just invoking these vague ideas of diversity are problematic because one person's understanding of diversity may be another person's anathema. But Canadians and Americans ought to be permitted to hold different sets of values. The state's role, the government's role should not be to see itself as being obliged to obliterate the existence of conflicting moral commitments. The state's role is to allow for difference. That's true diversity. Not to mandate approval or to mandate universal acceptance. And there's a great quote from the dissent on that point, here it is: "In a country whose people sometimes harbour conflicting moral values that cannot be reconciled to a single conception of how one should live…there is wisdom in the idea that the public sphere is for all to share, even where beliefs differ." That is authentic diversity.

 

Laura Flint:  Let's go to our next audience question.

 

Michelle Roberts:  Hi, good afternoon. Michelle Roberts, again. Thank you for indulging me in another question. Professor Bruce Pardy of Queen's, my alma mater, has written that Canada is transforming from having a Charter that protects individual rights to a Charter that protects certain people's conception of social justice by actually curbing individual rights, and cites to examples such as aboriginal offenders. Could you elaborate on your prior point regarding this? Do you think that Trinity Western is an isolated example of this? Or is Canada heading in the wrong direction?

 

Derek Ross:  Thank you for your question and I think Bruce Pardy makes a number of very apt observations, and I commend that article in the National Post to folks that are interested in this case. I do think that Trinity Western is indicative of a larger trend; a trend that suggests that we are on a problematic trajectory. What we see in Trinity Western and what we really see, I think, in the split between the majority and the minority is a conflict of legal philosophies.

 

            Fundamentally, what is the purpose of the law? The majority's approach essentially says that the law exists to produce a social consensus and to uphold shared values. And the dissent says no. the purpose of the law is to protect rights-holders from values that a state actor says is shared. The purpose of the law is to protect individuals from forced moral conformity, and not to give judges license to impose their preferred values on everyone else.

           

            So moving forward, to answer your question, I think the answer of whether we're headed in the right direction or the wrong direction will depend on which of these views will prevail in future cases. Will our courts be driven by a desire to produce and protect some kind of value-based social consensus or will they view their role as more limited to protecting a democratic commitment to allow citizens to hold different values but still live together in peace? I hope that the latter view will prevail.

 

 

Laura Flint:  It looks like our queue is wide open. Again, to ask a question, please enter star then the pound key on your telephone keypad. Let's go to our next caller.

 

Glenn Murdock:  This is Glenn Murdock, retired Supreme Court Justice, State of Alabama. Thank you so much for your presentation today. My question has to do with the extension of the rational of this case to churches themselves. If the private community, in this case, could be limited with the ramifications allowed by the Court, what is to prevent the controlling government to say to another private community, namely a church itself, "If these are your views, then we, as the government, will not recognize the marriage certificates that you participate in creating," and/or say to a church, "If these are your views, then whatever tax or other benefits that you enjoy will not be available to you any longer?" Thank you.

 

Derek Ross:  Thank you for your thoughtful question. And I simply would say I agree that that is a legitimate concern of the logical implications of the reasoning in this case. Now, having said that, Canadian law has been very generous in protecting space for religious communities. In that regard, I really view Trinity Western as an outlier as a decision in that it departs from a very rich tradition of protecting the autonomy of religious communities.

 

            What's interesting is just a few weeks before Trinity Western was handed down, the Supreme Court issued another decision called Wall, and that involved an individual that wanted to challenge a decision by his community— it was a Jehovah's Witness congregation—that it effectively expelled him from membership. And there the Court took a much more deferential view and said the membership decisions of churches must be respected. The autonomy of churches must be respected. It is not the role of the courts to interfere with the internal decisions, views, and beliefs of a religious community, and issues of theology are not justiciable.

 

            So I think, still, even with the problematic reasoning employed in Trinity Western, there is still a strong Canadian legal tradition to protect religious communities. But where the Court seems to be drawing the line is between traditional houses of worship, churches—so communities that we would see as being very traditionally engaged in religious activities, like worship, prayer, things like that—and religious communities that aspire to enter the public square, like Trinity Western. In a lot of the arguments made, a lot of the lawyers stressed on the other side of this debate that Trinity Western is not a church, and their free to hold these beliefs in their church, but when they enter the public square and when they seek permission from a government actor to do something, well, then they have to further the public interest.

 

            So that's where the distinction, I think, is made, and I don't think Trinity Western is necessarily dispositive of other cases. But there's no question that the reasoning employed here, which is essentially suggesting that beliefs in traditional marriage might be inherently harmful. It might be contrary to the public interest. That raises some real concerns for future cases. And so, again, though, I think the dissent got it exactly right when they said the public interest isn’t advanced by public opinion; it's advanced by religious accommodation. That is how you advance the public interest by allowing difference in private, religious communities. So it'll be interesting to see where this goes from here. Can communities hold different sets of values in a free and democratic society or must they conform to a state-approved view if they ever hope to do anything that might require some interaction with the public square and with the government? That is a troubling trajectory that we're on.

 

Laura Flint:  Again, to ask a question, please press the star key and then the pound key on your telephone keypad. Looks like we don’t have any questions lined up. We have about eight minutes left, so please go ahead and ask your questions if you have any. While we wait for our next question, I'll ask one of my own. Can you speak to the Supreme Court's 2001 ruling which upheld TWU's Community Covenant? Did that decision play a role in this case?

 

Derek Ross:  Yes, thanks for mentioning that, Laura. I failed to mention that this case, almost identically, was litigated back in 2001 at the Supreme Court. So Trinity Western, in addition to their proposed law school, they have a teacher's college that trains teachers, and back in 2001 the professional regulator for teachers made very similar arguments. They did not want to accredit Trinity's education program because of the Community Covenant. That went all the way to the Supreme Court and Trinity Western won. The Supreme Court said, look, not everyone will want to attend Trinity, but for those who do it is important to have institutions like this that are designed to address the needs of people who share a number of religious convictions. That's part of being in a free and democratic society is that we allow students to study and associate at a distinctly religious university.

 

            So we thought, I thought, that a Supreme Court precedent directly on point, or almost directly on point, would've been sufficient to resolve the issue. In fact, the BC Law Society initially had concluded that they were obliged to approve Trinity Western's law school based on the authority of the 2001 ruling. And it was only after it received pushback from its members that they put the matter to a referendum and agreed to adopt the results against Trinity.

 

            But remarkably, the 2001 case didn't seem to play a role in the 2018 decision. The majority did not even attempt to distinguish the present case from that earlier decision. And this was truly remarkable, especially since several lower courts in the litigation viewed the precedent as largely binding. So without any explanation as to why this case, from the majority, was different from 2001, it's really difficult not to view this 2018 as undermining the rule of law.

            It's interesting in another case about two months ago, the Supreme Court emphasized the importance of stare decisis, that's the legal principle that we're bound by earlier judgements. The Supreme Court said that if courts do not follow binding precedents, the law would ever be in a state of flux subject to shifting judicial whims, or the introduction of new esoteric evidence by litigants dissatisfied with the status quo. They said that in the case just two months ago. I think that many of us are concerned that that is precisely what has happened here and can happen in future cases. If courts are not prepared to be bound by their earlier decisions or at least articulate a compelling reason for why they should depart from it, then we've really undermined the rule of law. And that should concern even those that agree with the outcome in this case because if the 2001 Trinity decision can be so easily ignored, so, too, can this one.

 

Laura Flint:  I'll made a final call for questions. Again, to ask a question please enter star then the pound key on your telephone keypad. A reminder to keep an eye out for emails announcing upcoming teleforum calls and to consult the full schedule of our upcoming calls on The Federalist Society's website, fedsoc.org. Also available there are podcasts of previously recorded teleforum calls you may have missed. Well, it looks like we're getting up on the hour. Would you like to make any closing remarks?

 

Derek Ross:  Thanks, Laura. I would just say this is a difficult case, and whenever we have these cases, going back to my opening comments about conflicting rights, we're talking about issues that go to the core of individual's self-identity, their sense of dignity, and these are deeply cherished ideas on both sides of the debate. And in anything I've said, I don't in any way want to negate the concerns of those who have attended Trinity and have experienced a sense of hurt or exclusion if that is what they experienced. I'm not in any position to say what is and what is not harmful to their sense of dignity.

 

            But at the same time, those outside of Trinity's community are really in no position to deny the claims of its members that the animus shown towards them and their Community Covenant, including comments by the Law Societies, has harmed their sense of self-dignity. And that is why the language of dignitary harm is, in my view, unhelpful in balancing competing rights. There's no question that there's much work to be done by our communities to bridge gaps, to work towards healing where there has been hurt and brokenness. But that is the role of the private communities. It's not the role of the state. The state's role is not to, as I said earlier, the state's role is not to obliterate the existence of conflicting moral commitments. The state's role is to allow for difference, and that I think is, at the end of the say, what the Supreme Court got wrong in this case.

 

Laura Flint:  On behalf of The Federalist Society, I want to thank our expert, Derek, for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.