Saturday, April 26, 2014

No easy answers in TWU's bid for a law school

There are no clear winners when the rights of disparate groups compete. Sometimes it is necessary to balance Charter rights against each other. Thoughtful discourse can help sort out the issues. In the Law Society of BC April 11, 2014 debate, we have an informed  discourse.

Equality vs. religious rights
When equality and religious rights butt heads, as in the controversy over the proposed law school at Trinity Western University, Canadians need thoughtful analysis and informed discussion, not knee jerk reactions. The recent decision of the Law Society of BC to approve the proposed Faculty of Law at TWU provides a principled approach to a thorny problem.

Although the proposed law school at the privately funded Christian university has received approval from the BC Ministry of Advanced Education, the Federation of Law Societies of Canada, and various provincial and territorial law societies, there remains considerable opposition to it. A lawsuit has been filed against the BC government for approving the school, and, a BC lawyer has circulated a petition to members of the BC Bar that could force the Law Society to reconsider its decision.

At issue is a clause in TWU’s “Community Covenant Agreement” that reads,
“Further, according to the Bible, sexual intimacy is reserved for marriage between one man and one woman…”

A sincerely held religious belief
The Community Covenant Agreement at TWU is a roadmap for personal and community conduct. It is rooted in the faith of the community and based on the institution’s acceptance, as expressed in its Community Covenant Agreement, that the Bible is “the divinely inspired, authoritative guide for personal and community life”.  All faculty, staff and students at TWU agree to abide by the community covenant, and to model themselves after biblical virtues as interpreted according to the university’s evangelical Protestant tradition.

There can be no doubt that the traditional view of marriage and sexuality expressed in the Community Covenant is a sincerely held religious belief, and in keeping with its beliefs, the university requires a level of sexual restraint from all its members, regardless of sexual orientation.  Nevertheless, the implications of the clause discriminate against the enrolment of LGBT persons, and have called into question the university’s ability to properly train individuals, who, as lawyers, must swear an oath to uphold the rights and freedoms of all people.

Because of this clause, the proposed Faculty of Law at TWU raises complex questions about religious freedom, freedom of association and equality. Those who are interested in the specific arguments will find a thought provoking analysis of the issues in the archived webcast of the Law Society of BC debate (, as well as in the BC Civil Liberties Association submission to the Law Society (

A process that rigorously examined the issues
As the deliberations of the Law Society of BC make clear, there are no easy answers when the rights of two disparate groups conflict. The Benchers of the Law Society waded through approximately 2000 pages of material in preparation for making a decision. In what I would describe as a rigorous examination of issues and opinions, the Law Society considered legal advice from a number of advisors, Federation reports, the proposal from TWU and close to 300 submissions from the public, which were nearly evenly divided for and against TWU. 

Because rights and freedoms are not absolute, it is sometimes necessary to balance them against each other. In the balancing act, there are no clear winners, as the Law Society debate illustrates; TWU did not come out smelling like a rose even though the Benchers voted in its favour.

Informed debate can help us become more tolerant
Whether we agree or disagree with the decision to approve a faith-based law school at an institution that covenants with its members to uphold a traditional view of sexuality, the process of respectful and informed debate can help us more comprehensively grasp nuanced issues, and lead us to a more compassionate understanding of those whose beliefs, lifestyles, and identities differ from our own.

The controversy over the proposed law school at TWU is an example of the tension that exists in Canadian society between religious rights and equality rights.  This tension is not going to go away. No matter on which side of the fence we find ourselves, we need to work at respecting the rights of others and honoring the spirit of the Charter of Rights and Freedoms. We cannot “live and let live” only when the manner of living falls into line with our worldview. To do so runs the risk of swapping one form of intolerance for another.

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