Will Lawyers In Canada Soon Face A Religious Test? The Hypersensitive Response Over Canada’s First Openly Christian Law School

This entry is part 1 of 33 in the series Trinity Western University.

Introduction

The hypersensitive response over Canada’s first openly Christian law school at Trinity Western University (TWU) has led to a demand (from some) that law societies across Canada not allow TWU law graduates to practise law – primarily because TWU, as a religious organization, holds and exercises religious beliefs concerning the definition of marriage as between one man and one woman to the exclusion of all others. In essence, a religious test (or irreligious test) to determine one’s suitability to practise law.

A law school seemed like the logical next step in the evolution of programs offered at TWU, a Christian university in Langley, British Columbia. Given that Canada espouses to be a tolerant, multicultural society where diversity is celebrated, one would have thought that TWU’s application would have been met with a general consensus that a Christian law school would only increase Canada’s diversity. However, that was not to be the case. Despite the fact that there are 18 secular English common law schools in this country with no faith based alternative, the prospect of having one faith based law school caused a level of opposition and rancour not seen in Canadian legal history—and it is not over yet.

Christians have been in the business of running universities for a long time – at least since the 6th Century.[1] Although secular law schools may not acknowledge it, they are to some extent beneficiaries of a Christian heritage.[2] In light of that history it seems odd, therefore, that a Christian university would have to face such hostility.

The opposition is coming from very influential legal quarters. The Canadian Council of Law Deans (CCLD),[3] the Canadian Bar Association,[4] law students, and major newspapers such as The Globe and Mail,[5] were among the detractors. Yet despite all of that opposition, the Federation of Law Societies of Canada (FLSC) gave “preliminary approval” for the law school to go ahead.[6] Only a few days later the British Columbia government gave its approval.[7] Amrik Virk, the Advanced Education Minister, noted that after the government’s review, the TWU law school proposal “met the degree program quality assessment criteria for private and out-of-province public institutions.”

With both the FLSC and the BC Government on side what possibly could go wrong? Plenty, it seems. First, activists are threatening to take the matter to court; and second, attention is now turning toward the provincial law societies whom activists are pressuring to refuse licenses to TWU law graduates; further, there is a blatant attempt to prevent the future TWU law dean from being permitted membership of the CCLD.[8] I take the position, as will be outlined below, that by demanding the law societies to acquiesce to their demands, the opposition’s animus against TWU has raised the ante to such a degree that we now have legal professionals calling into question the very rule of law. This is because the constitutional protection of religious freedom requires the approval of TWU law school. However, the opposition is prepared to run roughshod over religious freedom in the quest for the dominance of equality rights.

The furor against TWU stems from its “Community Covenant Agreement”[9] that requires all students to “voluntarily abstain from the following actions…[including] sexual intimacy that violates the sacredness of marriage between a man and a woman.”[10] TWU’s Christian definition of marriage is in stark contrast that held by the majority in the secular community.[11] For prominent lawyer Clayton Ruby, “This alone makes it incompetent to deliver legal education in the public interest.”[12]

TWU has maintained that it is not discriminating against anyone including those who identify as being among the LGBT community. TWU would accept LGBT students who meet their entrance requirements. However, TWU will expect all law students to abide by the Community Covenant Agreement as required of the entire student body. That is not acceptable to the LGBT community who demand nothing less than the total capitulation of TWU on the matter – conformity of the minority to the tyranny of the majority?

The level of bitterness amongst such a sizable group of legal academicians will challenge the ability of the legal profession to maintain an open atmosphere for a diversity of views on how one ought to live. The hostility comes not because of a potential failure of the TWU law school to properly train students, but solely because the school operates from a faith based world view that includes a definition of marriage and acceptable sexual relations as only between one man and one woman committed in marriage. If the opposition against TWU gets its way, then the very idea of a Canadian multicultural mosaic that respects religious diversity will be undermined. It would also mark a dangerous precedent that will destabilize our free and democratic society – the very concerns that the Supreme Court of Canada noted in the TWU case of 2001.

The level of what I describe as animosity that has been exhibited by the Law Deans and members of the legal academy runs deep – this article seeks to understand that animus and its implications not only for the legal community, but for Canada as a whole.

Déjà vu: The Supreme Court of Canada’s Decision on TWU’s Education Program

In 2001, the Supreme Court of Canada (SCC) was asked to decide TWU’s request for a judicial review of the British Columbia College of Teachers (BCCT) refusal to accredit its teacher training program.[13] The BCCT refused to accredit the program because TWU required students to sign on to a “Community Standards” that forbade “practices that are biblically condemned,” including (but not limited to) sexual intimacy outside the relationship of one man and one woman committed in marriage.

The SCC decided (8-1) that the BCCT could not simply consider equality rights without regard to religious freedom. “British Columbia’s human rights legislation accommodates religious freedoms,” said the SCC, “by allowing religious institutions to discriminate in their admissions policies on the basis of religion.”[14] The SCC concluded that BCCT’s denying TWU accreditation because of a fear that the Community Standards requirement would lead to TWU graduates discriminating against the LGBT community was unfounded. There was no evidence to support such a view. Further, the SCC rightly opined that “it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. 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.”[15]

Dr. Janet Epp-Buckingham, a TWU professor, while speaking to the University of Ottawa Christian law students, said that TWU thought the 2001 SCC decision should have eliminated any question about TWU’s right to open a law school – “We did not anticipate that the Community Covenant would be so controversial,” she said.[16] Indeed the SCC saw the diversity of Canadian society as reflected in religious organizations as something to be respected. If TWU’s education program was permitted on those grounds why would it not also be true for a law program?

Epp-Buckingham and her colleagues were not the only ones who saw the similarity between the 2001 fight over accreditation for the teacher accreditation and the current bid for a law school. Constitutional lawyer John B. Laskin, in a memo[17] to the Federation, also noted the following similarities between the two situations:

  • As in BCCT, the decision under review would be a decision whether completion of a program offered by TWU would meet the academic requirements for entry into a profession.
  • As in BCCT, the decision would have been made by a body having a mandate to act in the public interest.
  • As in BCCT, the concerns on which the decision was based would focus on the requirement that students at TWU sign a document in which they agree to abstain from, among other things, homosexual sexual activity while attending TWU. (The current document, entitled “Community Covenant Agreement,” is cast in somewhat less pointed terms than the document considered in BCCT. It no longer speaks of homosexual behavior as a “sexual sin” that is “biblically condemned.” Instead it calls on members of the TWU community, “[i]n keeping with biblical and TWU ideals,” to voluntarily abstain from, among other things, “sexual intimacy that violates the sacredness of marriage between a man and a woman.”)
  • As in BCCT, TWU remains a private, faith-based university, founded by the Evangelical Free Churches of Canada and America, established as a university by British Columbia statute, and exempted, in part, from the B.C. Human Rights Code.

It was patently obvious to Laskin that should the Federation deny TWU’s application to open a law school based upon the alleged discrimination of the Community Covenant, the Federation’s position would not be legally justified given the 2001 precedent by the SCC. When two or more rights come into conflict, Canadian constitutional law does not allow one right to trump over another.[18] All rights are to co-exist, and when in conflict it is up to the court to balance the respective interests to ensure they do. So sexual orientation rights or equality rights cannot trump freedom of religion and vice versa.

In 2001, the SCC decided that TWU’s religious freedom right to operate within a religious context must be respected.  There was no evidence to suggest that TWU graduates would discriminate against students on the basis of their sexual orientation.

Fast forward to the present situation and it is clear that there is no evidence to base a claim that TWU law school graduates would discriminate against potential clients (based on sexual orientation) because they agreed to and may have religious beliefs that they are not to personally engage in sexual relations outside of a traditional marriage between one man and one woman while attending law school. Within the Canadian legal profession there are many lawyers who hold faith beliefs similar to the position taken by TWU concerning sexual relations. There is no case that I am aware of, of a Christian lawyer who has discriminated against a client based on sexual orientation.

It seems to me that there is something far deeper than the concern of discrimination that is motivating the opposition against the TWU law school.

The Legal Arguments Against a Christian Law School

Given the state of the law, it is ironic that it would be the Canadian Council of Law Deans that led by sending the first letter to the Federation in opposition to TWU’s proposal. [19] Dean Bill Flanagan of Queen’s University wrote, “We would urge the Federation to investigate whether TWU’s covenant is inconsistent with federal or provincial law.” He also asked that the Federation “consider this covenant and its intentionally discriminatory impact on gay, lesbian, and bisexual students when evaluating TWU’s application to establish an approved common law program.”[20]

Changing Standard: The Law Gives More Deference To Tribunals Than It Did In 2001

Professor Elaine Craig of Dalhousie University wrote a paper in opposition to the TWU proposal, stating that the legal context has changed since 2001 and the SCC would decide the case differently today.[21] Craig argues that the SCC in recent years has been giving more deference toward specialized tribunals than it did in the past. In other words, the SCC is not asking whether the decision maker is correct, but whether its decision was reasonable. The difference is that if the standard is “correctness,” then the SCC will scrutinize the decision much more closely than if it was “reasonable.” Craig’s point is that today the SCC would use the reasonable standard and would have supported the BCCT decision to deny the teacher training program. Thus, she argues that the Federation could reasonably deny TWU’s law school application because of its concerns of discrimination.

Laskin notes that there is no guarantee that the SCC would use the reasonable standard because this case involves competing Charter values. Further, even if it were to use the reasonable standard, the fact remains there is no evidence that merely attending TWU law school signing on to the Covenant Agreement would lead a graduate to discriminate on the basis of sexual orientation – “A finding based on no evidence is not just incorrect; it is unreasonable.”[22]

Societal Values Have Changed: More Protection Is Expected For Gay and Lesbians Today

Craig further argues that “As societal values change what constitutes a reasonable balance between protecting freedom of religion and protecting against discrimination on the basis of sexual orientation also changes.” Craig believes that today’s decision makers are expected to be much more protective of gay and lesbian equality than the decision makers of ten, fifteen, or twenty years ago.[23]

This assertion suggests that gay and lesbian equality considerations take precedence. Certainly, the principle of legal evolution accompanying social evolution is a well understood reality in law. For example, the protection against discrimination based on sexual orientation is not mentioned in the Charter, but it was added as an analogous ground by the SCC in the landmark Egan decision in 1995.[24] However, given our constitutional framework, every advance must also recognize that there is space for the other co-existing rights. Craig’s argument effectually pushes aside the right of a religious community to have space to operate within a religious context and specific understandings of morality as an institution of higher learning.

In short, Craig is arguing that the evolution of societal values has come to the point where a religious organization has absolutely no jurisdiction to define for itself what is and is not acceptable behaviour. It is curious that the only issue at stake for the critics of TWU is that the school’s alleged discrimination against those who engage in sexual activity outside of traditional marriage of one man and one woman. Underlying the criticism is a clear inability of the opposition to fully understand the grand picture of a diverse society that allows for differences of opinion (and belief) concerning what is acceptable sexual behaviour.

The Arguments For a Christian Law School

Increased Accessibility of Legal Education

Dwight Newman gives the example of the Jewish Cardozo Law School at Yeshiva University to establish the point that a religious law school is more apt to cater to the specific needs of the religious community it serves. Cardozo, for example, operates in concert with the Jewish holy days.[25] As an evangelical Christian university, one would expect TWU to centre its cultural context accordingly. The law school will not only operate in a Christian milieu that is sensitive to Christian holidays and traditions, but its’ classroom discussion will be open to a wider viewpoint on ethical and justice issues. It would create a place where students will not be harassed for expressing a faith based point of view.

The literature suggests that the study of law at a religious law school does not mean that academic debate is diminished.[26] If anything, it is more robust. Consider, for example, that it is often the case that the religionist will often know more about the position of a secularist than will a secularist understand the position of the religionist.[27] This is primarily because any religionist is confronted on a daily basis with the secularist position. Therefore the religionist is forced to know the secular position. The secularist, on the other hand, has no need to understand—let alone comprehend—the religionist position, which is often viewed as nonsensical and an anomaly to her experience.

The secular forces in this country already control 100% of the law schools. With TWU coming on stream, it would mean that only 5% of the law schools in Canada will be faith based. The average number of first-year law students in Canada is 2000.[28] TWU plans an entrance class of some 60 students. That means the TWU first year class represents only 3 percent of the first year law class in Canada. The question we have to ask is with the secular side controlling 97% of the law students and institutions, can the 3% have existence of their own? Paraphrasing Douglas Laycock, I ask, “Or is the secular model so absolutist that it cannot tolerate a 3% minority with a different solution?”[29]

It is truly ridiculous that we have a group of people parading around this country arguing that Canada cannot tolerate a 3% representative difference (diversity) in its law schools. I agree with Laycock, though he was referring to the American context, “One of the things we should have learned from the history of religious conflict is that however vigorous our religious disagreements, it is important to the welfare of the whole society that we contain those disagreements, that we respect other religious traditions even when we disagree, and even when we are trying to limit what we perceive to be the pernicious consequences of some of those traditions. Intense condemnation of religious minorities flares quickly into persecution, even in this country.” [30]

Diversity of Legal Scholarship

The social issues we face as a society demand a broad perspective and a willingness to look beyond the technical and materialistic bias of our age. The advent of the Charter has ushered in a complex liberal democratic ideal with competing interests vying for recognition and celebration that often conflict. The law has been called upon to referee the clash of rights. Repeatedly the SCC has refused to accept the notion that there is a hierarchy of rights.[31] No one right can expect to dominate others – instead the Court has sought to balance the competing interests. Despite the recent tendency toward formulae[32] in adjudicating constitutional disputes, the fact remains our law could use a fresh look at the way things are viewed. If secular rights (such as equality) are to be given equal weight as religious rights, then it is absolutely necessary that there be a diversity of legal scholarship to ensure there is a greater understanding of the values and principles at stake during the adjudication. However, the legal academy has shown itself to be intolerant of religious legal scholarship.

Monte N. Stewart and H. Dennis Tolley have confirmed that the American legal academy has a bias “against conservative religiously affiliated law schools, a bias resulting from the academy’s disagreement with traditional religion on the great cultural/moral issues of our day.”[33] The current uproar against TWU is in fact proof positive that the same bias south of the border has migrated north.

The inherent legal bias against religion might well be best summed up by Oliver Wendell Holmes, who opined, “I should be glad if we could get rid of the whole moral phraseology which I think has tended to distort the law. In fact even in the domain of morals I think that it would be a gain, at least for the educated, to get rid of the word and notion [of] Sin.”[34] Indeed, it could be argued that the SCC has now accepted Holmes advice in its rejection of the “loving the sinner and hating the sin” paradigm that has been part of the Judeo-Christian analysis for at least the last 3 millennia.[35]

Religious legal scholarship has the audacity to challenge the secular orthodoxy that is so prevalent in Canada’s law schools. The TWU debate has done the legal community a favour. It is high time that the secular dominance of the law be challenged and examined. John Witte, Jr’s scholarship aptly expresses the reality that “in most eras and cultures …law and religion stand in a dialectical harmony, constantly crossing-over and cross-fertilizing each other.”[36] Given the inherent bias in Canadian law schools about religious belief and its influence in society, there has been little opportunity for any “cross-fertilizing.” This has been exacerbated by the recent actions of the secular activists in their attempt to sideline TWU law school graduates even before they graduate.

The very existence of a TWU law school appears to have caused a collective shudder amongst the legal academicians. Indeed, it is the 3% minority that has roared and caused the 97% to demand the provincial law societies to shut their doors to the religious legal bogeyman. John Witte, Jr. notes that “religion has proved to be an ineradicable condition of human lives and communities – however forcefully a society might seek to repress or deny its value or validity, however cogently the academy might logically bracket it from its legal and political calculus.”[37]

Such an irrational fear of the religious is unfortunate and prevents the blossoming relationship that was and is possible between both law and religion. When rightly understood, law and religion do not have to be at odds but are quite capable of applying their synergies to solve the great issues of our time. The relationship goes back millennia, and as Witte points out, they are related institutionally (church and state established their respective boundaries); conceptually (underlying concepts such as the nature of being and order, person and community, knowledge and truth); and methodologically (in their development of logical methods, modes of deducing precepts from principles and the like).[38] The limiting of and the expunging out of legal discussion the rich Canadian cultural heritage of religion has not been to our advantage. The TWU debate has brought the law/religion deficit to the forefront and rightly so. It is time the secular hegemony be peeled back and re-examined. Given the apoplectic response to the TWU proposal, one has to wonder what the secular legal academy does not want Canada and by extension the legal profession to see.

I wonder if the over reaction is due, in part, to the possibility of the resurrection of the “love the sinner; hate the sin paradigm” that TWU represents. As was noted above, this way of looking at deviance from the norm is a long understood concept in the Judeo-Christian religious faith. More accurately, it is to love the sinner and hate the sin in one’s own life before you condemn the sin in a brother or sister’s life.[39] Too often the religious community have used the paradigm as a means of belittling and condemning others. However, it has a much deeper understanding. It actually calls for the religious and the secularist to understand that every individual has human dignity that must be respected. The religionist will come to human dignity from a different angle than the secularist. The Christian, for example, understands human dignity on the basis that everyone is made in the image of God and has inherent value. The secularist will reject such a typology and approach it from a matter of human rights and particularly equality rights.

Whatever the angle, the two sides will add much to the knowledge of what it means to be human if there is open and respectful dialogue on such matters instead of categorically refusing to listen to one side. The current system is not working. The animosity shown to the TWU proposal reminds us that we have much to learn about allowing for diversity of opinion. Law and religion “balance each other by counterpoising justice and mercy, rule and equity, orthodoxy and liberty, discipline and love. Without law, religion decays into shallow spiritualism. Without religion, law decays into empty formalism.”[40]

Time to Curb The Power Play

In a recent editorial[41] Professor Dwight Newman noted the recent developments:

The Canadian Council of Law Deans passed a resolution banning from membership any law dean who does not accept their view of the balance between equality and other interests.
Provincial law societies are considering the separation of their degree approval mechanism from the national Federation’s decisions. Saskatchewan will be making its final decision next month.
Some law professors have commenced a letter campaign to encourage former/current students and lawyers to write their law societies to not approve the TWU law school.
The law school dean at Dalhousie University circulated to other law deans the resolution her faculty adopted urging the Nova Scotia Barristers’ Society to refuse recognition of TWU law degrees.

These developments are very troubling when you consider the following:

1. It appears that the opponents of TWU are so adamant in their position that they are willing to sacrifice the national integration of the legal profession, which has only recently been able to establish an efficient streamlining of the approval process of new law schools by means of the Federation of Law Societies of Canada. It is conceivable that this campaign may result in some law societies accepting TWU graduates and others not accepting. Such a patchwork across the country will not only be unprecedented, but highly problematic going forward. Problematic for the profession and for religious freedom.

2. It would, in essence, be creating a religious (or irreligious) test of what they believe marriage to be, to qualify lawyers to practise law—clearly outside of the “fundamental right” to freedom of conscience and religion. We need to be reminded of the words of Chief Justice Brian Dickson:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination. But the concept means more than that.[42]

This freedom is not absolute of course but is subject to limits to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.[43] Opponents will argue that the equality rights of students applying to TWU are infringed by its policies. As noted above, this clash of religious freedom and equality rights was addressed by the SCC in 2001 involving TWU’s education program. The Court said TWU was not for everyone – as a private Christian institution it had a right to practise its religious beliefs.[44]

3. Given the state of the law on religious freedom, it is ironic that it would be the Canadian Council of Law Deans that has been in the forefront against TWU’s proposal. [45] It is blatantly obvious that the law deans of this country have no regard for the right of Canadians to have their own private religious institutions to practise their faith. It is apparent that the control of 97% is not enough for the deans – they demand absolute control to eliminate the religious community from having its own law school.

4. The Federation of Law Societies of Canada went way and beyond the call of duty to address the concerns of the law deans, the law professors, and students who opposed TWU. That included the extraordinary appointment of an ad hoc Advisory Committee to investigate the claims of discrimination against TWU. The Committee had no choice but to conclude the following:

65. In carrying out its mandate, the Special Advisory Committee carefully reviewed all of the submissions received by the Federation, and reviewed and analyzed applicable law and statutes. While the arguments made in the various submissions raise important issues that implicate both equality rights and freedom of religion, in light of applicable law none of the issues, either individually or collectively raise a public interest bar to approval of TWU’s proposed law school or to admission of its future graduates to the bar admission programs of Canadian law societies.

66. It is the conclusion of the Special Advisory Committee that if the Approval Committee concludes that the TWU proposal would meet the national requirement if implemented as proposed there will be no public interest reason to exclude future graduates of the program from law society bar admission programs.[46]

5. The Special Advisory Committee stated that though there were issues implicating both equality rights and freedom of religion, they did not raise a public interest to bar TWU’s proposal because of the “applicable law.” Clearly, this very astute committee of well-seasoned lawyers appreciated the importance of the law and its protections of TWU’s proposal. What is clearly at stake in this current dispute is the rule of law. The opponents of TWU will not accept the Federation’s decision because, in their view, the law is unjust to allow TWU to have a law school.

6. There is no evidence that a future law graduate of TWU would discriminate against a person’s sexual orientation solely because the graduate signed and followed the community covenant while at law school. Nor, am I aware of any Christian lawyer practising in Canada that has ever discriminated against a person’s sexual orientation because of their religious belief. Further, we have to ask ourselves – does it make sense to brand and stereotype an individual based upon the institution they graduate from? I think not.

7. It has now become clear that if TWU is denied approval because of the Community Covenant, it would be solely because TWU’s views on sexual morality were unacceptable to the respective law society. In other words, such a law society would be taking the position that freedom from discrimination on the basis of sexual orientation is absolute, even though the Supreme Court has ruled that “Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute.”[47]

8. The preamble of the federal Civil Marriage Act[48] states that though marriage was redefined for civil purposes, members of religious institutions are free to “hold and declare” their religious views of marriage and that it is not “against the public interest” for religious organizations to hold diverse views of marriage. That is what TWU is doing by upholding a Christian definition of marriage, which is clearly within its right to do so.

9. This controversy raises questions about the ability of Christian charities that hold a similar position as TWU on the issue of the sanctity of marriage, to operate in the “public sphere” as defined by those who do not appreciate or understand Christian ministries involved in public service. Should TWU’s law graduates not be accepted to practise law in a province in Canada, it will have set a troubling precedent for other Christian charities. What will stop the gathering momentum of advocacy groups to prevent students from Christian elementary, secondary, and post-secondary schools from being able to pick up their provincially issued diplomas? To deny TWU a law school based on its definition of marriage also denies the right of Christians to organize themselves into communities of faith to live and operate their ministry within their particular faith perspective, which is the promise of the Canadian Charter in protecting religious practise. Clearly the Supreme Court recognized this in 2001 when it stated:

Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. 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.[49]

10. Finally, have we come to the point in this country where students who attended universities that hold the same religious views on marriage as TWU, are somehow unfit to be lawyers? There are scores of religiously affiliated universities in Canada (whether Roman Catholic or Protestant) who also teach that marriage is between one man and one woman for life. Are their undergraduates to be stereotyped as to what they believe or how they will act – and therefore unfit? What about lawyers already practising law – are we about to enter a modern day witch hunt where lawyers (like myself) who did graduate from such schools will be disbarred because of our beliefs on marriage or the beliefs of our alma mater? If TWU graduates are not worthy to be called to the bar then are all of us who graduated from undergraduate schools that taught the same on marriage are also unworthy? Is this the promise of the Charter’s protection of religious freedom that Dickson spoke of as quoted above? I think not.

Conclusion

To the credit of the Federation of Law Societies of Canada and of the B.C. Government, they recognized the right of TWU to open a law school within its religious context. However, the Federation has set in motion a further study about “adding a non-discrimination provision” to its national standards for Canadian law schools. What will this mean for any future Christian (or other faith based) law school application or for subsequent reviews of TWU’s status under the new standard? Time will tell. What is obvious is that the opposition of TWU’s law school is far from over. Elaine Craig, law professor at Dalhousie University, states,

“The question that each law society in Canada must answer is the following: Is it in the public interest for the profession of law to approve an educational institution with policies that discriminate against gays and lesbians?”

I suggest that professor Craig’s question is too narrow; it is not the only question the law societies must answer. Rather, the question is also, “Is it in the public interest for the profession of law to discriminate against religious educational institutions that follow the traditional definition of marriage within their own religious contexts, and further should we have a religious (or irreligious) test of law graduates to practise law?”

The promise of Canada demands that we all be treated equally.

[1] See Pierre Riché, Education and Culture in the Barbarian West, (Columbia, South Carolina: Univ. of South Carolina Press, 1978)

[2] Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids: Eerdmans, 2000 edition), p. 351.

[3] Bill Flanagan, President of the Canadian Council of Law Deans, letter to John J.L. Hunter, and Gerald R. Tremblay, Federation of Canadian Law Societies, November 20, 2012, where he said in part, “The covenant specifically contemplates that gay, lesbian or bisexual students may be subject to disciplinary measures including expulsion. This is a matter of great concern for all the members of the CCLD. Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools. We would urge the Federation to investigate whether TWU’s covenant is inconsistent with federal or provincial law. We would also urge the Federation to consider this covenant and its intentionally discriminatory impact on gay, lesbian and bi-sexual students when evaluating TWU’s application to establish an approved common law program.”

[4] Robert C. Brun, Q.C., President of the CBA, March 18, 2013 letter to Gerald R. Tremblay, President, Federation of the Law Societies of Canada,” found at: http://www.cba.org/cba/submissions/pdf/13-18-eng.pdf

[5] Editorial, “No Gay-free law school should stand in Canada,” February 7, 2013, found at: http://www.theglobeandmail.com/commentary/editorials/no-gay-free-law-school-should-stand-in-canada/article8356107/

[6] http://www.flsc.ca/en/twu-common-law-program/ Though it also expressed concerns with TWU’s teaching of legal ethics and public law and the budget of the proposed law program.

[7] http://www.newsroom.gov.bc.ca/2013/12/statement-on-trinity-western-universitys-proposed-law-degree.html

[8] http://www.theglobeandmail.com/globe-debate/law-societies-must-show-more-courage-on-trinity-western-application/article16023053/ also see: http://fullcomment.nationalpost.com/2014/01/21/dwight-newman-the-desperate-campaign-to-thwart-a-christian-law-school/

[9] http://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[10] http://twu.ca/studenthandbook/university-policies/community-covenant-agreement.html

[11] The Civil Marriage Act, Statutes of Canada S.C. 2005, c. 33.

[12] Jeff Green, “Proposed Christian law school should be denied accreditation, Clayton Ruby says,” Toronto Star, March 1, 2013.

[13] Trinity Western University v. British Columbia College of Teachers 2001 SCC 31.

[14] Trinity Western University v. British Columbia College of Teachers, para 28.

[15] Trinity Western University v. British Columbia College of Teachers, para 33.

[16] Janet Epp-Buckingham, “Remarks at University of Ottawa Law School Christian Legal Fellowship,” March 28, 2013.

[17] John B. Laskin, Memorandum to Gerald R. Tremblay, and Jonathan G. Herman, Federation of Law Societies of Canada, March 21, 2013, found at http://www.flsc.ca/_documents/SpecialAdvisoryReportFinal.pdf

[18] Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 877.

[19] http://www.flsc.ca/_documents/TWUCouncilofCdnLawDeansNov202012.pdf

[20] http://www.flsc.ca/_documents/TWUCouncilofCdnLawDeansNov202012.pdf

[21] Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program,” Canadian Journal of Women and the Law, Vol. 25, No. 1, 2013.

[22] John B. Laskin, “MEMORANDUM Re Trinity Western University School of Law Proposal –Applicability of Supreme Court decision in Trinity Western University v. British Columbia College of Teachers,” to Gérald R. Tremblay, C.M., O.Q., Q.C., Ad. E., President, Federation of Law Societies of Canada, Jonathan G. Herman, Chief Executive Officer, Federation of Law Societies of Canada, March 21, 2013, p. 8, being Appendix C of the Special Advisory Committee On Trinity Western’s Proposed School Of Law, Final Report, December 2013 found at http://www.flsc.ca/_documents/SpecialAdvisoryReportFinal.pdf

[23] Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program,” p. 25.

[24] Egan v. Canada, [1995] 2 S.C.R. 513.

[25] Michael Hertz, “The Role of the Religiously Affiliated Law School,” (2009) 59 J. Leg. Educ. 136.

[26] Joshua S. Baron, “Feminist Pedagogy at a Religious School – An Assessment of BYU Law School’s Approach to Teaching,”

BYU Journal of Public Law, Vol. 21, Issue 2 (2007), pp. 353-376. Rex E. Lee, “Today’s Religious Law School: Challenges and opportunities,” Marquette Law Review, Vol. 78, Issue 2 (Winter 1995), pp. 255-266.

[27] Douglas Laycock in his piece “The Rights of Religious Academic Communities,” (1993) 20 J.C. & U.L. 15, at p. 15,notes,

“Controversy continues over the right of governments and of academic associations to enforce the full secular scope of academic freedom at religiously affiliated universities. On many issues, but especially on this one, I am struck by the extraordinary gulf in understanding between most secular academics and most seriously religious citizens, including seriously religious academics. Sitting in the middle and talking to both sides, I have the sense that religious academics have some understanding of the secularists, maybe because they are exposed to so many more of them. But I also have the sense that many of the secularists have no understanding whatever of the believers.”

[28] Dean David S Cohen, “How Many Lawyers and Law Students? The supply of lawyers in Canada,” found at: http://www.cba.org/dev/BC/bartalk_95_00/08_98/guest_cohen.aspx

[29] Douglas Laycock, “The Rights of Religious Academic Communities,” (1993) 20 J.C. & U.L. 15, p. 26.

[30] Douglas Laycock, “The Rights of Religious Academic Communities,” (1993) 20 J.C. & U.L. 15, p. 27.

[31] Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877

[32] Grégoire C. N. Webber, “Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship,” (2010) 23 Can.J.L. & Juris. 179-202.

[33] Monte N. Stewart and H. Dennis Tolley, “Investigating Possible Bias: The American Legal Academy’s View of Religiously Affiliated Law Schools,” (2004) 54:1 J. of Legal Educ. 136 at p. 137.

[34] Letter to Sir Frederick Pollock (May 30, 1927) in Holmes-Pollock Letters: The Correspondence of Mrs. Justice Holmes and Sir Frederick Pollock, 1874-1932I, ed. Mark DeWolfe Howe, 2 vols. (Cambridge, Mass.: Harvard University Press 1941), 2:200, as quoted by John Witte, Jr., “Law and Religion: The Challenges of Christian Jurisprudence,” 2:2 U of St. Thom. L.J., 439, at p. 442.

[35] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 124: “Courts have thus recognized that there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself. If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour. It quite clearly targets the vulnerable group. Therefore, a prohibition is not overbroad for capturing expression of this nature.”

[36] John Witte, Jr., “Law and Religion: The Challenges of Christian Jurisprudence,” at p. 446.

[37] John Witte, Jr., “Law and Religion: The Challenges of Christian Jurisprudence,” at p. 445.

[38] John Witte, Jr., “Law and Religion: The Challenges of Christian Jurisprudence,” at p. 446-447.

[39] Matthew 7:3-5 New King James Version (NKJV)

3 And why do you look at the speck in your brother’s eye, but do not consider the plank in your own eye? 4 Or how can you say to your brother, ‘Let me remove the speck from your eye’; and look, a plank is in your own eye? 5 Hypocrite! First remove the plank from your own eye, and then you will see clearly to remove the speck from your brother’s eye.

[40] John Witte, Jr., “Law and Religion: The Challenges of Christian Jurisprudence,” at p. 449.

[41] http://fullcomment.nationalpost.com/2014/01/21/dwight-newman-the-desperate-campaign-to-thwart-a-christian-law-school/

[42] R. v. Big M Drug Mart Ltd. (1985) 18 D.L.R. (4th) 321 (S.C.C.), at 353.

[43] R. v. Big M Drug Mart Ltd. (1985) 18 D.L.R. (4th) 321 (S.C.C.), at 354.

[44] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, at para. 25:

TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions. That said, the admissions policy of TWU alone is not in itself sufficient to establish discrimination as it is understood in our s. 15 jurisprudence. It is important to note that this is a private institution that is exempted, in part, from the British Columbia human rights legislation and to which the Charter does not apply. To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.

[45] http://www.flsc.ca/_documents/TWUCouncilofCdnLawDeansNov202012.pdf

[46] Special Advisory Committee On Trinity Western’s Proposed School Of Law Final Report (December 2013) found at: http://www.flsc.ca/_documents/SpecialAdvisoryReportFinal.pdf

[47] Trinity Western University v. College of Teachers, [2001] 1 S.C.R. 772, at para. 29.

[48] Civil Marriage Act, S.C. 2005, c. 33, Assented to 2005-07-20, found at: http://laws-lois.justice.gc.ca/eng/acts/c-31.5/FullText.html

[49] Trinity Western University v. College of Teachers, at para. 33.

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Thoughts on Will Lawyers In Canada Soon Face A Religious Test? The Hypersensitive Response Over Canada’s First Openly Christian Law School

  1. John Blake

    I really appreciated this article that outlines so carefully this issue.

    I was especially interested in the potential implications should the anti-TWU side win and TWU’s application initail approval in some way be reversed. What about all graduates of other Christian Universities – might they also be denied professional status in their choses field? If this is pushed too far, all Christian Universities might ultimately be denied official status as legitimate learning institutions.

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hi John, Thanks so much for your thoughts. The implications of this development are dire indeed. We have to find a place in Canada where we agree to disagree. The Supreme Court of Canada has been an arbiter of these conflicts to date and they have made it clear that religious freedom must also be respected as is equality rights. We will continue to keep our eye on what happens with this campaign. Barry

      Reply
  2. anon

    The controversial covenant that students wishing to study at TWU must sign deals with their duration of study (and on campus, really), and is not something to gauge the personal beliefs of those students, especially if they have since graduated from their programs.
    Barring a particular school from having a law program on the alleged future prospect of said students behaving in a certain way in their profession seems rather paranoid.
    If anything, the real subject of discussion should be whether Canada’s standards of being professional lawyers should include be whether practicing lawyers should hold religious views on certain topics. After all that is precisely what is being raised here. They are arguing that this would happen and therefore cannot. That sounds like typical discrimination, one that is not even proven by factual events.
    They’d have an actual argument if the issue comes up as a result of TWU’s law program has become a reality. Until then the accusation is groundless precisely because the problem has not actually occurred.

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Thanks for your comment. Your view is in fact in line with what the Supreme Court of Canada said in 2001 when the similar argument was made against TWU having an education faculty that could issue B.Ed. degrees.

      Reply
  3. Tim Matsis

    It appears to me that things have come full circle in Canada. If the Law deans are successful, then they will have succeeded in committing the very sin they espouse to be proscribing, namely, discrimination. Barry you correctly note that the flow on effects are chilling. Such an outcome would open the door for the exclusion of any person or institution from public life who holds a religious worldview. No schools or hospitals, no welfare organisations. Even churches could be denied basic services or permissions on the basis that the views they hold are not in the public interest.

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      This is why it is so important for people to understand what is at stake here. It is not simply a matter of the TWU law school – it goes way beyond. We are now at a point where we are willing to punish people for their beliefs. The opposition suggests that it is not the beliefs but the practice of that belief that is problematic. However, here we have a Christian institution, taking no government money, simply wanting to practice its faith on its own campus and that is a problem? Because the legal community is so incensed at the religious belief they are willing to run roughshod over the law and deny the religious belief and practice of marriage. It is a surreal moment.

      Reply
  4. A. Bruce

    It is a strange thing to see Canadian law deans uniting to try to deprive a private institution of its right to set its own admission policies.

    Presumably, there would be no protest from the other deans if the policy was for TWU’s students to abstain from the use of alcohol and tobacco (both legal) while enrolled. My point being that just because it is legal in Canada does not mean it must be permissible at a business or institution.

    Students are free to attend any institution they are accepted. Attendance is voluntary. If a student does not like or wish to adhere to a requirement that restricts their liberty they are free to go somewhere else if they are admitted. There are options. And there should be.

    TWU requires students to voluntarily agree to adhere to conduct consistent with its definition of sexual purity as a condition of enrollment. Presumably, the requirement stems from a sincerely held religious belief.

    Perhaps it would be a good idea for law deans to have a constitutional refresher course every so often to remind them that Canada is a multi-cultural society, with protections that ensure the the survival and protection of those differences.

    Reply
  5. Anonymous

    My opinion is that the B.C. Law Society should have rejected the accreditation. TWU is private entity, but as soon as it sought to have a law school and seek public endorsement and accreditation, it move closer to the public sphere. Further, having a public entity endorse discriminatory practices of a private entity is inappropriate, harmful and contrary to the public interest. We have worked so hard to protect discrimination against the LGTBQ community and I fear that this recent development may be a step in the wrong direction. I’ve tried to put down my thoughts onto paper here, if you are inclined to read it: http://equalityrightsforall.wordpress.com/

    Reply
  6. Dave Beaudoin

    Barry, I have a question for you.

    What is separation of church and state? In other words, where do we draw the line between church and state and Christian politics? Steven Harper is a Christian and obviously his religious beliefs would influence his decisions and politics to some degree.

    When and how does church and state become a problem?

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hello Dave. I appreciate your question. The separation of church and state has a long pedigree in our Western understanding. In the modern context we look to the Reformation. The term “separation of church and state” is contextualized in many ways. That is to say, people use to mean different things depending upon the context in which it is used. For example, at the time of the Reformation and soon thereafter it meant that the established church (whether Roman Catholic in Catholic countries; or the Anglican, Lutheran, Presbyterian and the like in protestant countries) could not interfere in the running of state or civil matters and vice versa – the state could not interfere with the church’s internal matters. What was not contemplated was a divorce of basic moral understandings in the law that had religious undertones – marriage comes to mind. Today, when people refer to separation of church and state the thinking is more along the lines that church i.e. religious teaching should have absolutely nothing to say about legal and/or moral norms in society. This is a relatively new development in our philosophical thinking. While there have long been advocates of such thinking since the Reformation – it has not been the generalized view of society at large or in major segments of the population. However, with the advance of Western education, as Peter L. Berger points out, the educated elites in our Western world made up of the educational establishment, media, and the legal profession, there is a very secular concept of religion’s role in society. That argument says that no religious view, concept, etc. should be evident in the legal or moral norms of society – that is the new definition of separation of church and state. This view also suggests that religion, its practises and institutions should be limited to what is “private.” When you dig down further they are really saying keep your religion within the four walls of your church building and don’t come outside with your religious view. There is then, in this thinking, a mindset that there is a quid pro quo – we will allow you your religious freedom as long as you keep it private. Separation of church and state in this mindset bifurcates the religious person – as “private” religious part and a “public” secular part. The problem of course is that the “secular” person does not have to do that they can be secular in private and public. It was also thought with the passage of time secularization will take over religion and religion will fade away as a cultural force. What Peter L. Berger and others have discovered is that religion has not faded away – in fact in some quarters it has become more robust. This then has challenged the educated elite who are maintaining their secularization and their radical view of separation of church and state as outlined above. So to answer your question – I think it is well established that church has no business telling the state how to run its affairs and vice versa – however I am of the view the church has an obligation to speak out against state abuse that is causing harm to citizens. I suggest that radical secularization theory that suggests religion is to be pigeon holed and have absolutely no say in the public is problematic. Church and state becomes a problem therefore when power is exercised by either side on the other to such a degree that harm is caused to citizens. It is hard to pin it down exactly – but I think we will intuitively know it when we see it (not very exact I know). For example, when the church uses its power and influence to imprison critics of its theology we know the church is exerting too much power. When the state sends the preacher to jail because he criticized the government – we know it is too far. Each case will depend on the facts. I hope this is of some assistance.

      Reply
  7. Kathleen Maloney

    I am uncertain what is so frightening about an open admission policy to assure that the s.15 equality rights of all citizens, regardless of what they believe, is constitutional and met by our Minister provincially and any educational institution in the business of delivering any degrees that is for education in any public field. Why would access to any spaces approved by our Advanced Ministers of Education for what are public professions be reserved for any particular believers? The argument that a religious person would not treat those sec.15 persons, who are the public, any differently is in fact proving to be wrong by this very administration decision by your Board to do so. Your Board is claiming that a person of any other beliefs is not good enough to access this charitable educational exempted services for our ITA public purposes is why favouritism by the Minister of Education and Advance Education cannot discriminate against their duty sec. 92 (7) to uphold our sec.15 access to any private or public corporation for either education or labour. The public cannot be excluded as though being different will make them a problem to be educated or work in our professions that are for our public benefit. The facts of law are that neither private corporations or public corporations who are offering education or labour to the public in a public field can exclude the public, so to suggest the reverse, which is what the Board of TWU is demanding based on their own fear of serving the real pluralist public should not be claiming otherwise. The public do not want to be segregated away from one another as the public accept differences and do not pull exclusivity ranks to leave out those who they do no want. Why historically exclusive theological teaching was granted for the exclusive education of those who are ministers of faiths, so that they could administer in their churches, the extension of this segregation was not to mean that public purposed professions could too be exempted from the duty to include all. The governments sanctioning of any practise that required segregation according to a community of believers desire privately to have public license to exclude the public from what is not a religious based profession is odd because exclusion undermines the very democratic and freedoms that we purport to have in our society. If Canada is to be divided up into segregated like minded religious sectarian communities for their own access to our public professions then are we, the public, to assume that every public purpose will be high jacked by the private religious for their own purpose to leave us out of what they need our public official approval for because the education they are offering and the labourers who are delivering it are doing so in what is legally a public field where the public are to have access without exclusion based on what they believe. To see the reasoning reversed and explained to mean the exact opposite of what this Board should be doing is alarming. Those who hold these views may need guidance as they differ to those who have studied and masters a private faith based body of knowledge that would never exclude the public for any reason as without public access the entire concept of public good becomes irrelevant and the public cannot look to the theological for any moral protection of our public interests.

    Reply

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