A homosexual Anglican man is fronting a group of Toronto lawyers who want to overturn the B.C. government’s approval of Trinity Western University’s proposed law school.
Vancouverite Trevor Loke says he wants to attend law school in British Columbia, but claims the private Christian university in Langley, B.C. is violating his right to sexual expression under the Charter of Rights and Freedoms by proposing a law school that would require all its students to abstain from homosexual intercourse. The B.C. government did the same, he says, when it approved TWU’s law school without considering Loke and other people who refuse to abide by the school’s student covenant.
His suit claims: “He is unwilling to disavow his sexual identity by pledging to abstain from same-sex intimacy and he does not want to be coerced into practising the type of Christianity practised by the Evangelical Free Church of Canada, which is the church affiliated with TWU. As a result, Mr. Loke cannot access the additional 60 law school places created by the Minister at TWU.”
Although TWU supporters maintain this claim, and a second one against the B.C. government that says its approval of TWU Law creates a “two-tiered system of legal education,” both abound in error, sympathetic legal experts are nervous about the Supreme Court of Canada’s unpredictability.
“Only a fool predicts what the Supreme Court will decide,” John Carpay of the Justice Centre for Constitutional Freedoms, told LifeSiteNews.
Carpay is acting for TWU in two other suits involving its law school proposal. These are challenges by Trinity Western of decisions by the Nova Scotia and Ontario legal professional bodies to reject TWU law grads, one to be heard in December and the second next year. The B.C. Law Society also rejected TWU a few days ago but the school has not yet announced whether it will challenge this decision too.
The legal challenges against the B.C. government were long in the works, but they have now revealed their arguments. They insist that TWU’s “community covenant,” which requires students adhere to traditional Christian moral behaviour, treats homosexuals and other sexual “minorities” as “second class citizens.” Therefore, explains Toronto celebrity lawyer Clayton Ruby, the suit seeks from the B.C. Supreme Court, “a declaratory judgment that no law school with this fundamentalist, Christian covenant – which discriminates against gays – is constitutional in Canada.”
Both suits focus on saying the school’s admission policy is discriminatory in order to get around a 2002 ruling by the Supreme Court of Canada that an earlier TWU project—its teachers college—was not discriminatory because there was no evidence its graduates showed any bias in how they treated their students in the public system.
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But there’s a problem with the new stress on intake instead of output, says Mary Anne Waldron, an expert on the Charter of Rights and Freedoms at the University of Victoria. “The Supreme Court did find that the community covenant was not discriminatory. It doesn’t prohibit gay or lesbian students from attending the school. It may offend them, but being offensive isn’t the same as discrimination. I find lots of things offensive on the basis of my religious beliefs but it doesn’t mean I can shut them down.”
Though many Charter cases have been decided by the courts on the basis of “balancing” competing Charter interests—often sexual rights versus religious rights—Dr. Waldron says this case ought to be simpler than that. TWU’s opponents should have to prove the discrimination has caused harm. Even if TWU does create a “two-tiered system,” says Dr. Waldron, so do many private institutions. “But are gays and lesbians prevented from getting a law education by the government approving TWU’s law school? They are not.”
Indeed, even if only heterosexual evangelical Christians attend the law school, it opens up seats at public university law schools at half the tuition to gays and lesbians.
Still, she won’t predict where the courts—and the Supreme Court, will go with this and the other TWU cases.
Neither will Carpay, though he thinks TWU’s case is a strong one. He sees the heart of it is the right of “voluntary associations” like Trinity Western to be left alone by government. “It’s in the nature of these voluntary groups, and there could be tens of thousands of them in Canada, to exclude people on religious or ethnic or sexual grounds. They are a necessary part of a free society.”