BC Court of Appeal rules for Trinity Western University

When tolerance becomes intolerance

Sometimes a well-intentioned defense of one group’s rights becomes an expression of intolerance towards another group.  Such is the case with the Law Society of British Columbia and Trinity Western University.  TWU is a privately funded, evangelical Christian university seeking to establish a faith-based law school.

TWU has faced an uphill battle since it first submitted a proposal to the Federation of Law Societies of Canada.  After conducting a thorough review of the proposal, the Federation granted its approval for a faculty of law at TWU.  However, the law societies of BC, Ontario and Nova Scotia declined to accredit future graduates of the school.  There have been court challenges in each of the three provinces, with differing results.

In April 2014, after a rigorous debate of the issues, the Benchers of the LSBC approved the school. A few months later, they reversed their decision in response to pressure from members of the Society.  The matter went before the BC Supreme Court and the Court of Appeal. Both courts found for TWU.

The Appeal Court, in its November 2016 decision, found that the LSBC resolution not to approve the proposed law school at TWU would have a “severe impact” on the religious freedom rights of the faith-based community.  LSBC has said it will appeal the decision to the Supreme Court of Canada. 

The cause of all of this litigation arises from one clause in the university’s Community Covenant.  The controversial clause defines marriage as between a man and a woman.  Critics say the clause is homophobic and discriminatory.

The clause may deter students in same-sex marriages from applying to the faculty of law. In this sense, it is discriminatory.  However, this does not mean that the TWU community is homophobic. In fact, hateful attitudes, speech and actions against LGBTQ individuals would violate the covenant; the covenant stresses the innate, God-given dignity, and worth of every individual. 

The innate dignity of the individual is a basic principle of Christianity and is crucial to the Christian identity – an identity that the TWU community takes seriously.

The evangelical Christian identity is founded on a personal relationship with Jesus. Jesus was a friend to the marginalized, the rejected, and the despised – in short, to the “other”.   While he may not have always approved of an individual’s choices or lifestyle, he always honoured and respected the individual. When members of the TWU community sign the covenant, they are also pledging to be more Christ-like towards those that are “other”.

TWU’s view of marriage goes against the grain of contemporary society. Nevertheless, the TWU community must be allowed to uphold its Biblical view of marriage. There is nothing inherently discriminatory or intolerant about a group that makes a distinction between sacramental and civic marriage.

The Appeal Court noted that there is no “downstream” effect flowing from the TWU covenant. In other words, there is no evidence that TWU graduates are homophobic. There is nothing to suggest that TWU would turn out bigoted lawyers incapable of upholding the laws of the land. 

In their well-intentioned defense of LGBTQ rights, some Benchers and members of the Society described the TWU biblical view of marriage as “abhorrent”, “archaic”, and “hypocritical”.    This is strong language.  Its intent may have been to show support for same-sex marriage and LGBTQ human rights. Still, it reveals an intolerant attitude towards religious sexual morality, in general, and the TWU community, in particular. This makes the Society’s decision not to approve the proposed faculty of law at TWU seem punitive.

In our attempts to protect one group’s rights, we run the risk of becoming intolerant towards another. A society serious about promoting tolerance must allow a minority group to hold an unpopular view (providing it causes no harm to the public interest).

In the words of the Appeal Court,  “A society that does not admit of and accommodate differences cannot be a free and democratic society – one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal.  This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”

Law Societies regulate conduct, not beliefs

BC Lawyers oppose a Faculty of Law at TWU

At a special June 10, 2014 meeting of the members of the Law Society of British Columbia, 3,210 lawyers voted against approval for a Faculty of Law at Trinity Western University, while 968 lawyers voted for its approval. While the vote seems to indicate overwhelming opposition, the majority of the 13, 114 members of the Law Society did not cast a ballot. 

The special meeting was called because a requisite number of lawyers were dissatisfied with the April 11, 2014 decision of the Benchers, who are responsible for governing the Law Society, to approve the law school at TWU for the purposes of the Law Society’s admissions program.

Non-binding vote

The vote, however, is not binding on the Benchers. In a press release following the special meeting, President Jan Lindsay, QC said, “The decision regarding whether to admit graduates from the proposed law school at TWU is a Bencher decision,” adding that, “however, the Benchers will give the result of today’s members meeting serious and thoughtful consideration.”

The Benchers’ decision came after an extensive process of consultation, and a thought-provoking debate that touched upon issues of equality, discrimination, freedom of association, religious freedom and the rule of law. I watched the debate live, and in my view, the Benchers arrived at a principled decision regarding a contentious issue that involves the conflicting Charter rights of two disparate groups.

The opposition to TWU is based on a clause in the university’s “Community   in Covenant” agreement which upholds a traditional view of marriage as between one man and one woman. Students, faculty and staff agree to abide by the covenant. Many, as the vote of BC lawyers indicates, object to this clause as discriminatory, and tantamount to placing a sign at the gate stating that LGBTQ people are not welcome.

TWU has right to its beliefs

While I dislike the idea of a university requiring its members to sign a covenant that governs the most intimate aspects of their lives, TWU has the right to uphold a particular view of marriage, and those who share the institution’s beliefs have the right to congregate and associate with others of like mind. 

I share the opinion of the BC Civil Liberties Association, an organization that has a record of supporting the rights of LGBTQ persons but who took the position, “to deny (TWU’s) application based on the university’s Community Covenant would infringe the Charter-protected freedom of association and religion of members of the faith-based private university”, adding that these are fundamental freedoms and “that’s what s. 2 of the Canadian Charter of Rights and Freedoms is all about, protecting our freedoms of association, of assembly, of belief and of expression.” (For greater depth, see also the BCCLA Submission to the Law Society of BC. )

In 2001, in Trinity Western University, the Supreme Court of Canada determined that the BC College of Teachers could not deny education graduates of TWU admittance to the teaching profession based on religious beliefs about homosexuality that were unacceptable to the College.

Unfair to assume a lack of professionalism because of a belief

There is no evidence that teachers trained at TWU fail to professionally and competently exercise their teaching responsibilities when employed in the public school system. Similarly, there is no reason to assume that future graduates of a law school at TWU will be incapable of upholding the laws of the land and representing the rights of clients of all persuasions.   If an individual lawyer trained at TWU should prove incapable of doing so, the public can reasonably expect that the Law Society will deal with that person according to the remedial and disciplinary procedures already in place for lawyers who fail to faithfully represent clients and honorably serve the cause of justice.

In my opinion, for a law society to deny candidates admission to the legal profession because of a religious belief that is socially anathema to a percentage of its existing membership is unjustified, and is discriminatory in its own way.  In the absence of evidentiary proof that TWU’s traditional view of marriage and its code of sexual conduct does harm to others, graduates of its law school should be eligible for admission to the BC bar.

The Law Society of BC is properly concerned with the training, qualification, ethics, competency and conduct of its members. It is not its task, however, to regulate belief by excluding those with whom some of its members disagree. 

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 (http://new.livestream.com/mediaco/lsbc041114), as well as in the BC Civil Liberties Association submission to the Law Society (http://bccla.org/wp-content/uploads/2014/03/20140302-Submission-Law-Society-re-TWU.pdf).

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.