By Daniela Ellerbeck, Legal Advisor for FOR SA

I often ask myself if a day is coming when I will not be allowed to practise as an attorney anymore because of my Christian beliefs.

When I read international decisions such as this month’s Trinity Western judgment by the Supreme Court of Canada (SCC), these thoughts do not seem frivolous or unreasonable, and I find myself wondering how long I will still be able to do what I love and what I believe God has called me to.

In a controversial decision,[1] the SCC effectively upheld the decisions by the Law Societies of British Columbia and Upper Canada[2] respectively, not to accredit Trinity Western University (“TWU”), a Christian law school.

The law societies had refused to accredit the law school, because TWU expects its students to adhere to a religiously based code of conduct (known as the “Community Covenant Agreement”), requiring amongst other things, that students abstain from sex outside of a heterosexual marriage. In other words, the Christian law school simply asked that students who decide to attend it, adhere Christian standards of behaviour.

The SCC viewed this mandatory code of conduct as being against the public policy value of equality, saying it imposed “inequitable barriers of entry” to legal training, thereby limiting diversity within the legal profession, and posed the risk of significant harm to LGBT people.  TWU, the SCC held, could not impose its religious beliefs on students choosing to attend there, because these beliefs would have an inequitable impact and could cause significant harm, stating that “[b]eing required by someone else’s religious beliefs to behave contrary to one’s sexual identity is degrading and disrespectful.”

The SCC acknowledged that the law societies’ decisions limited TWU’s constitutional right to religious freedom, and prevented the TWU community from associating in the manner they believe their faith requires. Shockingly, however, the majority of the SCC saw this limitation as insignificant, holding that “studying law in an environment infused with the community’s religious beliefs is preferred, not necessary, for their spiritual growth.”

This judgment is extremely dangerous, troubling and concerning.

Given that TWU is not the only law school in Canada, one could argue that, for someone who finds themselves unable to adhere to a particular code of conduct, being able to apply to one less law school because of its code of conduct, is a minor inconvenience at most. It is most definitely not a barrier to entry to the profession.

The judgment means that the one association which aims to provide instruction in a religious environment, will be unable to exist in line with its core religious beliefs. This is not of “minor significance”, and is a major travesty to freedom of association and religious freedom in Canada.

Effectively, the judgment says that, at the risk of not offending anyone, associations must compromise on their core beliefs. This fundamentally erodes the nature and character of the association itself.

Freedom of association is of vital importance, as it allows people to, together, achieve a common goal – from communities who together live out and practise their faith, to political parties. Associations are all around us. We do not just have individual identities, but to the degree that all of us are part of groups and communities, we all have a group identity. Removing people’s freedom to pursue common interests without government interference, is to remove the hallmark of a democratic state.

In South Africa, freedom of association is a constitutional right.[3] It allows us to establish associations to achieve these common goals and to maintain these associations. In contrast to the situation in Canada, our courts thus far have held that associations can expect the people who voluntarily join them to abide by the association’s policies.[4]

This Canadian judgment deals a deadly blow to tolerance and pluralism in Canada now, both of which are absolutely necessary prerequisites for a free and open democratic society. Accommodating religious diversity itself is in the public interest, precisely because it promotes a liberal society. The judgment is indicative of the slippery slope in Canada where tolerance and pluralism are being sacrificed on the altar of what is deemed “diversity”, but which, in essence, is forced conformity to a politically correct agenda.

There is a fine line between deeming an association’s beliefs unfit for public life (as in the case of TWU), and that of deeming an individual’s beliefs as making him/her an unfit and improper person for that profession. For those professions which require candidates to be “fit and proper to practise”, it is cases like these that keep one up at night, wondering how long it will before Christians are no longer welcome in (some of) the main line professions.

[1] A copy of the judgments are available here – https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17140/index.do?r=AAAAAQANVHJpbml0eSBXZXN0ZQE and here – https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17141/index.do.

[2] From the 1st of January 2018 the Law Society of Upper Canada is known as the Law Society of Ontario.

[3] Section 18 of the Constitution of the Republic of South Africa.

[4] See for e.g. Taylor v Kurtstag NO 2005 (1) SA 362 (W) and Wittmann v Deutscher Schülverein, Pretoria 1998 (4) SA 423 (T).

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

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