A Law School for Homophobes

It’s not enough that there are some who claim there are already too many law schools in Canada, too few articling positions, and too much competition in the job market for junior lawyers. Now they want to make another law school which appears reserved for homophobes, or at the very least a law school which explicitly states that homosexuality is wrong.

The proposed law school would be housed at Trinity Western University (TWU) in Langley, B.C., a private Christian institution associated with the Evangelical Free Church of Canada, with approximately 3,500 students. The school has a Community Covenant Agreement which states:

…according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation

Both students and faculty must agree to the principles in the Agreement, which is intended to operate both off and on campus, and students can be refused admission or removed if they violate its terms.

The law school proposal was made one year ago in 2012 by TWU to the BC Ministry of Advanced Education and the Federation of Law Societies of Canada (FLSC), with an intended goal of launching in Fall 2015.

The FLSC’s Task Force on the Canadian Common Law Degree began an investigation in 2007 to create national standards for law schools, and released areport two years later which recommended the FLSC adopt a national academic requirement for entry. A subsequent report in 2011 led to the development of the Canadian Common Law Program Approval Committee to approve all law schools across Canada meeting standardized national requirements.

Although the law societies across Canada maintain the technical ability under statute to debate these issues themselves, they have agreed to allow the FLSC to conduct the technical analysis of schools to help develop national standards.

The Canadian Common Law Program Approval Committee was intended to assess technical requirements, and did not anticipate the issues raised in the TWU proposal. Consequently, the FLSC created a Special Advisory Committee on Trinity Western University’s Proposed School of Law to provide a non-binding report to the FLSC Council.

The ensuing uproar has the headlines saying, “Extra, extra! Lawyers fighting lawyers over law school!“. The National Post’s Jonathan Kay has called opposition to a TWU as “narrow minded,” and provides two main points in support of the proposal:

  1. “…the Supreme Court of Canada already has produced a direct precedent involving a professional school whose students and faculty were subject to Christian behaviour codes.”
  2. Canada already has almost two-dozen non-Christian, left-leaning law schools whose curriculum and faculty comport well with Mr. Flanagan’s [Queen’s law Dean] views.

The National Post’s Chris Selley reviews the analysis by Kay, who himself is a lawyer, and concludes “Kay wins.”

Not so fast.

The 2001 SCC case Kay cites is Trinity Western University v. British Columbia College of Teachers [“BCCT“], which also involves TWU, but in their bid for a teacher education program. The case largely involved the interpretation of s. 4 of the Teaching Profession Act,

Object

4 It is the object of the college to establish, having regard to the public interest, standards for the education, professional responsibility and competence of certificate holders and applicants for certificates of qualification and, consistent with that object, to encourage the professional interest of certificate holders in those matters.

The problem here is that the Teaching Profession Act has since been repealed and replaced by the Teachers Act. The SCC discussion in BCCT focused on the order of mandamus and the exercise of discretion under the former Act, and whether the the college properly weighed the various rights at stake. The analysis would be quite different under the new Act given the presence of a privative clause and the express route for certification appeals which requires written reasons.

The analysis by the SCC in BCTT also notes that the school teachers have limited expertise in human rights issues and balancing competing interests in society. The FLSC stands in an entirely different position, and the creation of the Special Advisory Committee ensures transparency and written reasons.

The CBA’s Sexual Orientation and Gender Identity Conference (SOGIC) and Equality Committee provided the Special Advisory Committee an opinion letter on March 18, 2013, which cited the Supreme Court decision in Doré v. Barreau du Québec discussing the Quebec bar association and stated at para. 24, “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values.”

How those Charter values play out in allowing a law school which appears to indicate disregard for the s. 15 rights (based on analagous grounds via Egan) when there appears to be a competing religious right is something the Special Advisory Committee will certainly take particular pains in expressing. The FLSC is also developing national good character standards, and its difficult to reconcile that with the endorsement of an educational institution which would explicitly and flagrantly exclude law students on the basis of sexual orientation.

Kay’s second point appears to be that every other law school across Canada is already gay-friendly, so having one non-friendly school isn’t going to hurt anyone. He also believes this is the best way to achieve ideological diversity in Canada.

Although significant progress has been made in law schools, any openly gay lawyer who has recently attended one will not say they are openly welcoming and safe places of study. More importantly, law graduates exist in a profession consisting of older lawyers, a profession which still maintains significant barriers for homosexual lawyers.

Ideological diversity already exists, as is apparent from the CBA’s letter to the Special Advisory Committee. The SOGIC and Equality Committee letter mentioned above reflects the opinion of those groups and not the CBA as a whole. The covering letter by CBA President Robert Brun clearly states, “CBA members hold a range of views on the question of the approval of this particular law school.”

Creating additional seats for a law school in a private religious institution which excludes significant portions of the population who do not share TWU’s values seems not only irresponsible but reckless. There are several other contenders across Canada for additional law schools if there is a need for more law graduates who can better meet the interests of the public and the mandate of the law societies.

The legal profession is at a crossroads right now, and what we need is progressive choices and innovative solutions, not regressive and isolationist thinking. Unfortunately it appears as if any lawyers graduating from TWU would likely be part of the latter camp.

Comments

  1. Melanie Bueckert

    Omar, I was intrigued by your statement that “The FLSC is also developing national good character standards, and its difficult to reconcile that with the endorsement of an educational institution which would explicitly and flagrantly exclude law students on the basis of sexual orientation.” Do you think that the “National Fitness and Suitability to Practise Standard” being developed by the Federation of Law Societies will exclude people who agree with the content of TWU’s Community Covenant? I haven’t seen a draft of the national standard, but from the FLSC’S Phase 1 Report I understand that it will be directed to “articulating…specific attributes, such as honesty, integrity and candour that members of the profession must possess”. I understand that the draft framework underlying the national standard “identifies four key factors – respect for the rule of law and the administration of justice, honesty, governability and financial responsibility”. How will these national good character standards relate to an individual lawyer’s views regarding homosexuality?

  2. Melanie,
    It’s tough to speculate because the good conduct requirements are still being developed.
    But the rule of law and the administration of justice clearly relate to upholding Charter values, and it’s quite clear that TWU’s Covenant has some problems reconciling that.

  3. Expanding the number of law schools where there is a bloated number of graduates is the first issue we should be addressing. But after that, yes, the whole hating homosexuals because of the superstitious, millenniums-old ramblings of a bunch of desert-tribe peasants is a close second.

  4. “The legal profession is at a crossroads right now, and what we need is progressive choices and innovative solutions, not regressive and isolationist thinking. Unfortunately it appears as if any lawyers graduating from TWU would likely be part of the latter camp.”

    This is a giant leap. Being forced to sign a “covenant” does not automatically convert an incoming law student into an ideologue. What of secular students who wish to study law and whose only offer of admission comes from TWU?

  5. Dave,
    Those secular students would be accepting the offer of admission under false pretenses, claiming they agree with the covenant when they in fact do not.

  6. That’s right–are you suggesting that this would be a moral transgression unbecoming of a lawyer? In any event, your response reinforces rather than counters my criticism, which is that you simply cannot equate institutional policy with the minds of its students.

  7. Not to mention your peculiar argument that Christians, by virtue of their sincerely held religious beliefs, are incapable of playing leadership roles in a changing legal industry.

  8. Dave, I think an important point that you’re not addressing is that TWU students would be receiving their law degrees from an institution that explicitly goes against the values stated in our Charter and as confirmed in multiple Supreme Court of Canada cases. As Omar says, this is, in effect, contrary to the rule of law in our country. Do we want lawyers being trained at an institution that does not respect the rule of law in Canada?

  9. The Charter requires that the state not discriminate on the various grounds listed in s. 15 or analogous to them. It does not say that individuals have to believe that all behaviour done by people in the legally protected classes is equally desirable or even morally acceptable.

    Could one argue that TWU’s Convenant about sex only within marriage discriminates against common-law couples on the basis of marital status? Would a student who had premarital sex have to drop out, or suffer expulsion if that act were proved?

    People who are devout members of many religions, including many forms of Christianity, believe that members of other religions, including other forms of Christianity, and those who have no religion, are doomed to an eternity in hell. Such beliefs are not restricted to TWU students; no doubt many members of the Bar across Canada have those beliefs. So long as they do not deny their legal services on the basis of grounds prohibited by the Charter (assuming that the Charter applies to the provision of private legal services, which is arguable but not crystal clear), have they no right to believe that and stay a lawyer?

    I suspect that I would find much of the Covenant to be fouly offensive, but I am not required to attend that university or associate with those people -and they are not required (by the Charter or otherwise) to associate with me.

    The US has a strong bill of rights, but Catholic universities and law schools exist (and a few law schools in Canada are associated with currently or recently expressly Catholic universities). Catholicism’s views of homosexuality and premarital sex, among other things, are not far removed from TWU’s. Is the difference how seriously the doctine is enforced against students (and teachers)? Is that a maintainable ground for different legal treatment of students and graduates by the Canadian Bar or other state or quasi-state authorities?

  10. John Gregory:
    While the charter addresses the government’s responsibilities to it’s students, the duty to not discriminate is a feature of our society as a whole.

    While an individual is free to hold racist opinions, he is not free to open a ‘white’s only’ restaurant.
    While a group is free to hold homophobic opinions, they are not free to open a homophobic university.

  11. “Dave, I think an important point that you’re not addressing is that TWU students would be receiving their law degrees from an institution that explicitly goes against the values stated in our Charter and as confirmed in multiple Supreme Court of Canada cases. As Omar says, this is, in effect, contrary to the rule of law in our country. Do we want lawyers being trained at an institution that does not respect the rule of law in Canada?”

    Jamie, I think you’re painting with broad strokes here.
    1) If you want to bring the SCC into this you should acknowledge, as Omar did in the original post, that they held in favour of TWU (in a somewhat different context) in 2001.
    2) I don’t mean to be defending TWU but it seems I’ve accidentally thrust myself into the role. Accordingly, I point out that while sure, TWU is in apparently egregious violation of certain Charter “values,” you have ignored the existence of sections 2(a) and (b).
    3) What is your basis for concluding that the rule of law is being violated?

  12. Clayton Ruby’s subsequent piece in the National Post emphasizes the following points:
    – this is not a “Christian” issue, because the majority of Christians do not hold the same views as TWU
    – TWU’s free speech is not affected, because they can still teach the beliefs they want to
    – the SCC decision in BCCT can be further distinguished because Canadian schools have long included some religious affiliation, whereas the Canadian legal profession has not
    – TWU’s claim to focus on behaviour still has the effect of excluding a discernible group on the basis of identity

  13. To be accredited by the American Bar Association (ABA), U.S. law schools cannot discriminate on the basis of sexual orientation (amongst other grounds). Evangelical schools like Pepperdine have chosen ABA accreditation over the ability to openly discriminate. It would be a peculiar circumstance if Canada, with its relatively progressive stances on the rights of sexual minorities, were to have a brand-new publicly-accredited law school that is permitted to openly discriminate against gays.

  14. The facts, law, and issues considered in TWU v. BCCT, 2001 SCC 31, are, as Omar pointed out, distinguishable from those with respect to the TWU proposal.

    Regarding limits on the exercise by members of the TWU community of freedoms set out in ss. 2(a) and 2(b) of the Charter, please see SOGIC’s letter to the FLSC. The relevant paras. read (footnotes omitted here):

    “As recently noted by the Supreme Court of Canada in Whatcott, relying on its jurisprudence post-TWU, freedom of religion is only infringed where: ‘(1) the claimant sincerely holds a belief or practice that has a nexus with religion; and (2) the provision at issue interferes with the claimant’s ability to act in accordance with his or her religious beliefs.’ The interference must be so serious as to ‘[threaten] actual religious beliefs or conduct.’

    “Although we do not question the sincerity of the religious beliefs of those forming the Trinity Western community on sexual mores, removing or modifying the school’s Covenant and other rules, practices and policies, as we suggest in the conclusion to this letter, would fall short of threatening the beliefs or conduct of these individuals. Trinity Western’s Christian character and affiliation to the Evangelical Free Church of Canada could be maintained. Those who share the school’s views on sexual intimacy would still be welcomed as faculty and students, the same way they are at every other university in Canada, and they would be free to express their beliefs and to try to convince others to abide by the same moral standards. What would be forbidden is the creation of a ‘LGBTT-free’ school environment, which is no more of a right guaranteed by freedom of religion than a ‘women-free’ or ‘Jew-free’ campus would be.

    “Even if a violation of freedom of religion could be demonstrated, s. 1 of the Charter would require that it be reconciled with the right to equality accorded to all Canadians. One would have to account for the fact that the exercise of freedom of religion by Trinity Western’s members denies LGBTT’s faculty and students respect for their dignity and equality, as protected by s. 15(1) of the Charter. As the Supreme Court held in Ross v. New Brunswick School District No. 15, “[w]here the manifestations of an individual’s right or freedom are incompatible with the very values sought to be upheld in the process of undertaking a s. 1 analysis, then, an attenuated level of s. 1 justification is appropriate.” For these reasons, we believe that Trinity Western’s exclusion of LGBTT individuals would not meet this test.”

    Regarding the rule of law: The SCC has said in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 SCR 214, that the rule of law is the very foundation of the Charter and that the courts are directed to provide a remedy in the event of infringement of the rights guaranteed by the Charter. It follows that an unjustified breach of a Charter right undermines the rule of law.

    A point worth drawing out in response to several commenters here is that “sincerely held religious beliefs”—i.e., mere agreement with TWU’s “covenant”—are, I think, not the problem. In my view, the requirement that a student’s conduct not violate its principles (i.e., that students not engage in same-sex sex) at the risk of expulsion constitutes the Charter breach.