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. 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.
 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.