Approval of Trinity Western University’s Law School? It’s Complicated

Trinity Western University views sexual relations outside of a marriage between one man and one woman as inconsistent with “biblical and TWU ideals”, and requires its students and faculty to agree to abstain from such activities. In short, TWU discriminates against people on the basis of their sexual orientation.

My wish for Canada is that that sort of discrimination becomes so contrary to the social and public mainstream that, regardless of whether it is legally permitted, only the most marginal and outsider groups will engage in it. That to require students to sign a community covenant eschewing same-sex expressions of love will be viewed as no better than requiring students to be white, something of which any virtuous person would be ashamed, and in which no right-thinking person would participate.

That Canada is not this one. In this Canada Trinity Western can lawfully discriminate against LGBT students because it operates in British Columbia, where under s. 41 of the Human Rights Code, an educational institution that promotes the interests and welfare of a common religion does not discriminate just because it grants “a preference to members of the identifiable group or class of persons”. Apparently creating a community of shared religious values counts as this sort of permitted preference, even if it results in the exclusion of people on the basis of their sexual orientation (See in general the FLS Special Advisory Report).

Further, and despite the thoughtful arguments made against this position (see, e.g., Elaine Craig’s article, “The Case For the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program”), I think the Federation of Law Societies would have erred if they had concluded that a person holding a law degree from Trinity Western ought not to be admitted because their legal education did not satisfy the Federation’s legal ethics requirement.[1] In particular, I question the proposition that teaching ethics from a religious perspective, or raising the possibility that moral beliefs may have a role in determining how a lawyer acts in contra-distinction to the obligations of law, is inimical to proper instruction in legal ethics.

On the latter point, the position that legal obligations do not always trump moral duty is mainstream in legal ethics. David Luban asserts that “When serious moral obligation conflicts with professional obligation, the lawyer must become a civil disobedient to professional rules” (Legal Ethics and Human Dignity, 2007, p. 63). And any Canadian law student who learns ethics from the second edition of the casebook I co-edit, Lawyers’ Ethics and Professional Regulation, has the opportunity to read that statement. They may also read the classic ethics case, Spaulding v. Zimmerman (263 Minn 346 (1962)), in which a lawyer learns that the plaintiff in the case where he represents the defendant suffers from a potentially fatal aneurysm. The lawyer does not disclose the existence of the aneurysm, and could not have done so under the professional rules on confidentiality that governed that lawyer (and that until recently also governed Canadian lawyers). He simply negotiates a settlement without disclosing the information to the plaintiff. Even if those students are taught by a professor like me, who asserts fidelity to law as a paramount ethical obligation (see, e.g., “Legal Education Reform and the Good Lawyer”), they might nonetheless have heard their professor say that a lawyer who broke the ethical rules to disclose in such a circumstance would do a good thing, not a bad one.

Now one response to this position may be that there is a difference between the kind of culturally specific moral beliefs associated with religious practice, and universal moral obligations that can be said to govern everyone’s conduct. One could argue that there is a material difference between suggesting to students that they act in accordance with universally justifiable moral values (e.g., prevent an unnecessary death) in preference to legal duty, and suggesting that they act in accordance with their personal moral beliefs in preference to legal duty. The weakness with that response, however, is that the content of universally justifiable moral values is disputed, and the identification of those values culturally grounded; the difference between the universal and the idiosyncratic is generally in the eye of the beholder. As Jeremy Waldron has noted, while we may all agree that rape is wrong, disagreement arises fairly quickly as soon as we think about questions like the age of consent or whether there ought to be a defence for a reasonable but mistaken belief in consent (Jeremy Waldron, Law and Disagreement, 1999, p. 105). Morality is slippery, which is why people like me think that law is a better constraint on lawyer conduct, most of the time. However, and this is my point here, it is a mainstream, defensible and legitimate legal ethics position to say that, at least sometimes, morality trumps legality in determining how a lawyer ought to respond to a particular dilemma.

There are undoubtedly limits on how far a legal ethics professor can go. There are positions about violating the law that it is not “professionally respectable to assert” (Milan Markovic, “Advising Clients After Critical Legal Studies and the Torture Memos” (2011-12) 114 W Va L Rev 109 at 152, citing Mark Tushnet). But the mere fact that a law professor suggests obligations for the lawyer that are inconsistent with the law does not demonstrate that the professor has failed to teach that student about his or her ethical duties.

Further, that a professor does not agree with a law does not mean that a professor cannot teach the content of that law. Indeed, I imagine that most Canadian law professors, some or much of the time, disagree with the substantive law governing the topics that they cover in class. Within legal ethics I frequently have issues with law society and judicial decisions, and with provisions of the codes of conduct. I have occasionally been heard to disagree quite strenuously with the majority position (civility anyone?). But based on years of reading examinations, I can say with some confidence that no student in my class is confused about the difference between what the law is, and what I (or they?) think it ought to be.

There is also respected literature from the United States situating a lawyer’s ethical duties within that lawyer’s religious community and tradition. The best writer in that tradition is Thomas Shaffer, who argues that when a lawyer faces an ethical dilemma, she should resolve that dilemma within her community, including her religious community. He rejects the idea of the lawyer as solely autonomous in deciding how he or she ought to act:

When the study or practice of law becomes painful or confusing for her, she returns to the community of the faithful, and talks there, in that religious community, about her professional life. She considers what she is thinking and doing, and in some sense “decides” what to think and what to do, as much as the autonomous actor imagined in our liberal political philosophy does, but she “decides” in the religious community” (American Lawyers and their Communities: Ethics in the Legal Profession, 1991, p. 198 (with Mary M. Shaffer))

I cannot say that I find Shaffer’s approach to legal ethics remotely appealing. And as noted, and despite the hard case of Spaulding v. Zimmerman, I view lawyers’ duties as fundamentally grounded in the law, not morality. I think professors do students a disservice when they de-emphasize the law in their legal ethics teaching. But I cannot say that a professor who disagrees with me, who in her instruction grounds a lawyer’s ethical duties in moral obligation, or who views the lawyer’s decisions as properly informed by the values and norms of her community, including her religious community, fails to instruct her students in legal ethics. As much as anything, it is the job of the legal ethics professor to help her students develop their own ethical identities, recognizing that those will inevitably vary from the professor’s (See: “Intuition and Theory in Legal Ethics Teaching”). That can occur (and is always a challenge) regardless of the professor’s own ethical perspective.

The main problem posed by TWU is that there is nothing legally wrong with what they do. The laws of British Columbia permit them to discriminate in this way. And, to me at least, it seems problematic to suggest that an institution whose conduct is lawful cannot properly teach students the law.

Which brings me back to where I started. What TWU does shouldn’t be acceptable. It is one thing to see freedom of religion as permitting you a space to live your life in accordance with your own values (as I argued here); it is a very different thing to see freedom of religion as permitting you to diminish people in a way that the law would otherwise prohibit. And that’s the case whether those people study history or chemistry or nursing or law. British Columbia should change its human rights law. And if British Columbia does not do so, then TWU ought nonetheless to be subject to public criticism. If your religion believes that sexual orientation is a choice, and that people should be excluded from your university because of their sexuality, I’m suggesting it is time to reassess your religious beliefs.

[1] The arguments with respect to satisfaction of the requirement for competency in public law seem problematic for similar reasons. More interesting are arguments arising from the differing human rights statutes, and the question of whether a jurisdiction whose human rights legislation arguably prohibits TWU’s conduct ought to approve its law degree (although see the FLS Special Advisory Report, para. 38-39, here). It is also noted that none of this speaks to the procedural issues that arise in Alberta where the Law Society purported to delegate this decision to the Federation. In my view, for the reasons set out here, the Law Society of Alberta could not properly delegate this question.

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  1. Jonathan Westphal

    Ms. Wooley

    I have to take issue with your statement “In short, TWU discriminates against people on the basis of their sexual orientation.” As has been pointed out ad nauseam, the covenant applies equally to non-married heterosexuals. Students at a privately funded religious institution are being asked to personally commit to behave in a manner consistent with the tenets of that religion – shocker! Your further equation of the covenant to overt racism is tendentious to say the least.

    Are you really arguing that because Christian views on sexuality are no longer part of the mainstream, that Christianity is now something in which “no right thinking people would participate”? Does the bible condemn homosexual behaviour as a sin? Yes, along with adultery and any other sexual behaviour outside traditional marriage. Does that mean that Christians condemn homosexuals? On the contrary, the bible explicitly warns us not to condemn others, since we are all sinners in need of God’s grace. When Christ was asked which was the greatest of the commandments, he answered:

    “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbor as yourself.’”

    Your argument boils down to this: that any believing Christian is a bigot who cannot be trusted not to discriminate against others who do not share his or her beliefs, and should therefore not be allowed to practice law. I don’t think it is TWU that is being intolerant here…

  2. Jonathan, I suggest you read the column again – I think you stopped at paragraph 3.

  3. Leviticus 15:19 says all kinds of strange things about women. Would a Christian law school be perfectly justified in segregating or excluding women in classrooms based this rule since they are “unclean”? If Leviticus 18:22 justifies the barring of sexually active same-sex couples from TWU, should not Leviticus 15:19 also apply?

    I wonder if BC would accept the accreditation of a conservative religious law school that segregates men and women? Why is barring same-sex couples any less problematic?

  4. Jonathan: “On the contrary, the bible explicitly warns us not to condemn others, since we are all sinners in need of God’s grace.”

    Leviticus 20:13 : “If a man has sexual relations with a man as one does with a woman, both of them has done what is detestable. They are to be put to death; their blood will be on their own heads.”

    So at what point did god actually change is mind regarding gays? Christians use Old Testament quotes to justify discrimination against gays all the time, and then when confronted about it they reply with lovey-dovey quotes from the New Testament. Which way is it? Either the Old Testament edicts apply or they don’t. If the Old Testament doesn’t apply, can we really call religious belief in the Old Testament sincere? I think this would have implications for a Charter s.2(a) infringement analysis.

  5. The last couple of comments, and to some extent the whole debate, underlines why Prof Benjamin Berger of Osgoode calls the freedom of religion the most difficult right, under s. 2 of the Charter. There are huge difficulties in defining what makes a legitimate belief (which is why the SCC has taken refuge in the Linus van Pelt thesis that it doesn’t matter what you believe, so long as you’re sincere), and what constitutes a practice rather than a belief (cf Claire l’Heureux-Dubé and the Quebec Charter of anti-Muslim Values).

    I would think that just about nobody takes seriously ALL the admonitions/laws in Leviticus. How many people refuse to wear a cotton/polyester blend sweater? How many people, come to that, insist on stoning adulterers? So that is not a very good test of sincerity.

    Those who want to think seriously about it (and maybe even those who think it’s all a bunch of superstition) may enjoy A.J.Jacobs’s book, The Year of Living Religiously, to see how it goes to adhere as closely as possible (as allowed by the criminal law, anyway) to the old precepts.

    As for the Old and New Testaments, I had thought that mainstream Christianity took the view that the Old was overridden by the New in cases of conflict. But just how ‘love thy neighbour’ applies to hard and fast (and cruel) rules like the one quoted can be a bit tricky – sort of like applying the Donohue v Stevenson ‘neighbour’ test in tort law, except that you may spend eternity in hell if you get it wrong (and you may not get called to the bar in the meantime. I draw no parallels.)

  6. …except you are totally neglecting the access issue. The gay student that only gets accepted to TWU law is barred from a legal education (or forced to abstain from intimate relationships).

    Law school is the gatekeeper for the judiciary and a law degree is the genesis of many political careers. Law schools aren’t private institutions.

  7. Alice, thank you for your very thoughtful piece on this matter. I certainly agree that the law permits TWU to have a law school. The fact that you do not agree with TWUs views is obviously your own opinion to which you have the right to maintain. However, to suggest that TWU’s view shouldn’t be acceptable then you are suggesting that the law ought to ban religious belief and practice that holds the view that marriage is to be between one man and one woman. That, I suggest, is extreme.

    I have written about this at length at:

    Religious freedom is a fundamental human right and religious people have equality rights too. You may not agree about a host of religious views – in some circles women cannot be members of the clergy, or speak in church, or they may have to wear head coverings or wear a particular style of dress, some religious communities do not allow their children to have education beyond grade 8 so that they can work on the farm. Are you suggesting that we as a society write up a list of beliefs and practices that the state will now deem acceptable? How do you propose we enforce such a state religion? Canada’s multicultural heritage is being challenged by this opposition to TWU – the Supreme Court of Canada in 2001 recognized this when it had to deal with the opposition to TWU’s education program when it said:

    The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.
    (Trinity Western University v. British Columbia College of Teachers 2001 SCC 31 at paragraph 33.)

    The fact is TWU’s education program has done very well since 2001 – the sky did not fall – nor will the sky fall when the law graduates of TWU enter the courtrooms around this country advocating for their clients, whether such clients be gay or straight, rich or poor, religious or anti-religious. I expect that just like their education counterparts they will enter their profession being educated to do the very best they can – no more, no less.

    My wish for Canada is that it will hold true to its promises in the Charter and protect religious freedom despite the anti-religious sentiment of those who do not agree with the religious beliefs and practices of others. That our country would be one that respects diversity and multiculturalism and allow religious communities find a safe haven to practice their faith in freedom from the harsh judgmental attitudes that there is only one way to live the good life enforced by the state.

    A free society, a just society that respects diversity will be a society that not only tolerates but celebrates religious freedom.

  8. David,

    The TWU covenant also forbids pre-marital sex of any kind. So, the heterosexual student who is only accepted to TWU and who wants to have sex before marriage (which is a healthy percentage of the population) is also barred from a legal education. Right?

  9. Mr. E. Blackadder

    I completely agree that TWU degrees should be recognized.

    I am also starting a law school. I am an adherent of the Church of the Flying Spaghetti Monster (I am not the only one – Google it). One of the tenets of my religion is that the Flying Spaghetti Monster disapproves of Christian churches. I believe it is a sin to attend a Christian church. Consequently, all students at my law school will have to sign a covenant in which they will agree not to enter any Christian church. I have a book in which this rule is written and I sincerely believe that this book was created by my deity and represents his commands.

    Some may say that this requirement is discriminatory. Not at all. We are not saying that students may not be Christians. We are simply asking them not to engage is certain conduct. The same requirement applies to Christians and non-Christians alike. Anybody who doesn’t like it can choose another law school.

    I challenge anybody who supports TWU’s right to ask students not to engage in homosexual behaviour to explain why FSMU should not be allowed to have a similar requirement that students not attend Christian churches.

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