All this week in the quiet, almost reverent courtroom in downtown Vancouver, Chief Justice Hinkson is hearing the case of Trinity Western University (TWU) vs. The Law Society of British Columbia (the “Law Society”). While outside that room there is a cacophony of news stories about the federal election and the “Great Fall” of China’s economy, inside there is a dramatic debate about the place of religious communities and their organizations in Canadian society over the issue of sexual ethics and marriage.

Those of us who represented religious charities at the Supreme Court in October 2004 presented our clients’ concerns about what might come as a result of the redefinition of marriage. One concern was the decertification of religious schools that continued to operate within the paradigm of traditional marriage.

The Court responded, in its decision, that such concerns were “hypothetical scenarios” that would be resolved with the Charter for “The protection of freedom of religion ... is broad and jealously guarded in our Charter jurisprudence,” said the Court.

Since then, the TWU Law School case is the first time that the Canadian courts have had to deal with the broader societal implication of the redefinition of marriage on a religious school that operates within a context of traditional marriage. In other words, the hypothetical concerns raised in 2004 have now become reality. Religious communities across Canada are watching with great interest to see how Canadian courts will jealously guard their right to practise traditional marriage within their own institutions. At stake is the ability of religious communities to operate their own institutions based on religious practises that are seen to be anachronistic by legal elites but are nevertheless legal and moral.

On the one hand, TWU wishes to establish a school of law on its Christian campus in Langley, B.C. in accordance with its religious code of conduct known as the “Community Covenant.” That Covenant is what one would expect of a private Christian university: respect for others, no alcohol, no cheating, and no sex outside of the traditional marriage of one man and one woman. These are all standard requests from a conservative religious faith that has been proclaiming such views, in one form or another, for about 2,000 years.

On the other hand, the Law Society has taken offence to the sexual ethic of TWU. As the regulator of the legal profession, it takes the position that the proposed school of law discriminates with the sexual requirement of the TWU Covenant. In essence, the Law Society says it is OK for TWU to have such a belief but it cannot practise such beliefs by making it an admissions requirement of its student body. The Law Society is of the view that when a private religious law school seeks the public’s approval to enter the legal profession it must not discriminate on the basis of its sexual ethics.

The Law Society does not argue that TWU’s legal education is inadequate. In fact, the Federation of the Law Societies of Canada has already determined that TWU’s meets all the requirements. The issue is whether a public body can refuse to accredit a professional training program at a religious university because the body disagrees with the religious teaching and practise of marriage.

The issue of sexual ethics has been and will continue to be a matter of religious discussion and debate for many years to come. Public discussions on this will continue regardless of the court’s decision. Further, there is, as of yet, nothing illegal or immoral about a religious body requiring its members to adhere to a sexual ethic that respects traditional marriage.

The redefinition of Marriage is now a fact of law. Let it be. But those who still believe and practise traditional marriage, it seems to me, ought to be left alone as well.

Barry W. Bussey is Director, Legal Affairs, at the Canadian Council of Christian Charities. His blog “Intersection: A Current Discussion on Issues Involving Law and Religion,” is found at: www.cccc.org/barry