I posted about Trinity Western University a little while ago. They are a private Christian university that is creating a law faculty and is seeking accreditation. The law society of the province in which the school is placed, British Columbia, has granted accreditation, as has a sorta federal organisation that isn't really in power yet. The Ontario law society has stated that it will not recognise a law degree from that university - and Ontario has the largest population as well as the capital city and the largest economic centre - as has another province, Nova Scotia.
At issue is the covenant the university requires students and faculty to agree to, which, among other others, included the requirement to abstain from:
•sexual intimacy that violates the sacredness of marriage between a man and a woman https://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html
Coupled with the fact that the students are encouraged to spy and tell on each other.
Nova Scotia told the school they would change their decision if the university took that one sentence out of the covenant. Instead, the school has decided to take the Ontario and Nova Scotia law societies to court. From what I've read, Nova Scotia's response can be boiled down to, "Bring it."
One of the university's problems, aside from trying to use the Bible as a justification for treating people like subhuman trash, is that they're relying very heavily on a Supreme Court of Canada decision that was made in 2001. In that case, the British Columbia College of Teachers refused to allow the same university to have full control of their teaching program. The university wanted to be able to teach its "values" to its teaching students and the BCCT didn't think it was appropriate to have teachers who were produced by a school that advocated discrimination. The BCCT lost that case. The court decision was that while the BCCT was acting appropriately in considering the possibility of discrimination and its detrimental effects, it didn't balance that with the right to freedom of religion in its considerations and didn't provide any examples of TWU teachers exercising any discriminatory behaviour while in the classroom, so it was inappropriate to just assume these teachers would be bigots.
Here's some problems for the TWU. (In my opinion, of course, and I'm not a constitutional lawyer.) Cases aren't usually directly on point with each other - if they were, we would just look things up in a book and wouldn't need to go to court - but I would say these two cases are so different that the 2001 won't be much use to TWU.
These law societies aren't telling the university they can't have a law school and do whatever they want to it. They don't have the authority to do that. Self-regulating law societies in other provinces are saying they won't recognise the degree, which they have every right to do. Totally different thing.
Both societies made it clear that they did consider the angle of freedom of religion. In the case of the Ontario society, some people who found the covenant repugnant still voted in favour of recognising the degree because of freedom of religion. I'm not saying there can be no argument that they didn't consider it enough, but the discussion of the Ontario law society is online and they clearly talk about having to balance the rights.
When it comes to whether TWU lawyers are more likely to be discriminatory, that's impossible to demonstrate one way or another, as the school isn't expected to start for a couple of years. The 2001 case was different because the university already had a teaching program, they just didn't have complete control over it.
But let's say the school had already been producing lawyers. While it's possible to figure out if teachers are discriminating against gay students, it's much harder to find out if lawyers are discriminating against gay clients, because we can turn clients down. Lots of lawyers have their staff perform some kind of intake interview with potential clients, and once a lawyer finds out the couple is gay, if s/he is a bigot s/he can just say s/he isn't taking clients right then. Too busy. If the lawyer doesn't find out until actually sitting down with the client, the lawyer can, at the end of that interview, claim the client's case is simply too complicated and outside their scope of expertise. Given this is all confidential, lawyers can't say who they've seen even if they don't get hired, unless ordered to by the right authority, it would be extremely difficult to discover a pattern, so I would propose it would be unreasonable for the court to expect evidence of this nature.
In what might be seen as a bit of a side issue, in determining how much deference the court should give tribunals - whether the decision should be given a lot of weight or basically be brushed aside - the court looks at the expertise of the members of the tribunal. The expertise of the BCCT is in teaching standards, not legal rights. As one judge said, "More importantly, the Council is not particularly well equipped to determine the scope of freedom of religion and conscience and to weigh these rights against the right to equality in the context of a pluralistic society."
Guess what lawyers are good at?
No, lawyers aren't smarter than everyone else, but they make us go to law school for a reason.
The law society is made up of people for whom determining/fighting over legal rights is their job. I would propose that a judge, a former lawyer, would give their decisions a lot more weight.
And - ding ding ding! - the 2001 decision was made before the courts recognised that to deny gay people the right to marry was a violation of the Charter. That was not the state of law when Trinity opened back in the Jurassic era or when the 2001 decision was made. The Supreme Court changes its mind when it feels an old decision isn't appropriate for current society. Given the very issue involved is the right of gay people to marry, well, Trinity, good luck with that.
Actually, no, no good luck. I could be completely wrong, but I hope not. And TWU might actually end up with less "freedom of religion" than they started out with, should a court decide that, in these times, their covenant has to go. Catholic schools in Ontario have to allow gay/straight alliance clubs despite it violating their beliefs.