The CBA intervention in TWU: Lessons from the U.S.

By Mariane Gravelle December 4, 20174 December 2017

The CBA intervention in TWU: Lessons from the U.S.

 

Hearings in the TWU case are now complete. On Friday, the Supreme Court of Canada heard submissions from over 25 interveners – including the Canadian Bar Association – and heard reply from the appellants and respondents.

Appearing on behalf of the Canadian Bar Association, Susan Ursel of Ursel Phillips Fellows Hopkins LLP presented the CBA’s factum and responded to questions from Justices Brown and Rowe. The CBA’s pro bono counsel also included David Grossman, Olga Redko, and Angela Westmacott (not present in the picture above). Ursel concluded the CBA’s intervention by re-iterating the CBA’s position that “there is a government interest in limiting long-standing discrimination against the LGBT community and while TWU has a right to its belief and covenant, it has no right to state support for same.”

In 2014, CBA members passed a resolution calling on law societies and government to require that admission to law schools be open, without discrimination related to any grounds under s. 15 of the Canadian Charter. The CBA has since intervened at appellate courts in Ontario and Nova Scotia, and has been asked to present arguments and law from the US experience.

Drawing upon that experience, the CBA’s submission states:

Examples from the U.S. jurisprudence illustrate that state actors’ refusal to grant benefits to institutions that maintain discriminatory admission policies can be legitimate even where those policies are characterized as manifestations of the freedoms of religion, expression and association. Particularly where benefits rather than prohibitions are at stake, freedom of religion in the U.S. can yield to a compelling state interest in protecting or vindicating competing fundamental rights such as equality.

Webcasts from both days of hearings have been archived and can be watched here.

Hearings in the TWU case are now complete. On Friday, the Supreme Court of Canada heard submissions from over 25 interveners – including the Canadian Bar Association – and heard reply from the appellants and respondents.

Appearing on behalf of the Canadian Bar Association, Susan Ursel of Ursel Phillips Fellows Hopkins LLP presented the CBA’s factum and responded to questions from Justices Brown and Rowe. The CBA’s pro bono counsel also included David Grossman, Olga Redko, and Angela Westmacott (not present in the picture above). Ursel concluded the CBA’s intervention by re-iterating the CBA’s position that “there is a government interest in limiting long-standing discrimination against the LGBT community and while TWU has a right to its belief and covenant, it has no right to state support for same.”

In 2014, CBA members passed a resolution calling on law societies and government to require that admission to law schools be open, without discrimination related to any grounds under s. 15 of the Canadian Charter. The CBA has since intervened at appellate courts in Ontario and Nova Scotia, and has been asked to present arguments and law from the US experience.

Drawing upon that experience, the CBA’s submission states:

Examples from the U.S. jurisprudence illustrate that state actors’ refusal to grant benefits to institutions that maintain discriminatory admission policies can be legitimate even where those policies are characterized as manifestations of the freedoms of religion, expression and association. Particularly where benefits rather than prohibitions are at stake, freedom of religion in the U.S. can yield to a compelling state interest in protecting or vindicating competing fundamental rights such as equality.

Webcasts from both days of hearings have been archived and can be watched here.

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