At issue is the Trinity Western’s proposed law school that both the B.C. Law Society and the Law Society of Upper Canada have refused to accredit because of the private evangelical Christian school’s community covenant.

In the covenant, all students, faculty and staff agree to abide by Christian moral behaviours, including abstinence from sexual activity outside of traditional marriage.

Justice Richard Wagner led off by saying “students who don’t share the same sexual orientation” will either have to hide it or act contrary to their deepest nature.  He referred to “pain and suffering” on the part of these students and asked whether the covenant is  “an attack” on the “human dignity” of LGBT students.

Lawyers for Trinity Western argued the covenant is “part of the shared definition of a religious community,” and noted the charter protects the right of to establish communities of faith.

The only charter rights being infringed are the religious freedom and freedom of association rights of the evangelical Christian community at Trinity Western, argued Kevin Boonstra for Trinity Western.

Boonstra pointed out the charter binds the law societies, but not Trinity Western, which is seeking accommodation for its religious character in the same way a Sikh receives religious accommodation for his kirpan in a weapons-free environment.

At issue before the Supreme Court is the extent religious freedom is a communal right and whether those communities’ institutions or corporations have rights to religious freedom.

This is not the first time Trinity Western has been before the Supreme Court over its community covenant. In 2001, the Court decided in favour of the accreditation of its teachers’ college over the objections of the B.C. teachers’ college.

Justice Rosalie Abella pointed out that since that decision Canada has brought in a law recognizing same-sex marriage.  Abella read off some of the requirements of the covenant, such as refraining from getting drunk, swearing, using drugs or alcohol or drugs,” including the prohibition of same-sex activity and concluded, “one of these things is not like the other.”

Abella asked if Trinity Western has the right to ask people to refrain from the legal right of same-sex marriage.

Among the issues before the court is whether law societies have the jurisdiction to determine the entrance requirements of a law school, or only to recognize the credentials of law school graduates when they present them.

The court heard arguments from the lawyers representing the law society that it was in the public interest to determine there was equality of access to law school spaces to all, including those in the LGBT community.

The Court was simultaneously hearing two appeals Nov. 30 and Dec. 1 regarding the B.C. and Ontario law societies.

After the B.C. Law Society said it would not accredit graduates of Trinity Western, B.C.’s minister of education refused to allow Trinity Western to grant law degrees, effectively killing the law school.  However, Guy Pratte, lawyer for the Law Society of Upper Canada, told the court that even if Ontario did not accredit the law school, it would still be possible for individual Trinity Western law graduates to approach the law society for accreditation.

The B.C. Law Society’s decision was overturned by the B.C. Court of Appeal; the Ontario law society’s decision was upheld by the Ontario Court of Appeal.

Almost 70 lawyers are attending the two days of hearings and almost 30 intervenors had five minutes to weigh in on Dec. 1.  Interveners in support of Trinity Western include the Canadian Conference of Catholic Bishops, the Archdiocese of Vancouver jointly with the Catholic Civil Rights League and the Faith and Freedom Alliance, the Evangelical Fellowship of Canada, ARPA Canada, the Christian Legal Fellowship and the Canadian Council of Christian Charities.