The BC Law Society benchers voted 20-6 against a motion that would have seen TWU law school graduates not be able to practise law in BC. The failure of that motion means that the Federation of Law Schools decision on December 16, 2013 to approve TWU stands.
At first glance the 20-6 decision appears to be lopsided; however, the sentiments expressed even by a number who voted against the motion were not at all flattering to TWU’s Community Covenant Agreement” [i] 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.”[ii] A number of the benchers described it as “repugnant,” and “abhorrent.” Bencher Joe Arvay opposed what he said was a “metaphorical” sign on the law school which says, “‘No LGBT students, faculty or staff are welcome.’”[iii] However, another bencher, Lynal Doerksen rightly pointed out that to refuse accreditation “on the basis their exercise of their belief in a traditional marriage is not in the public interest is, in my view, a very shaky legal foundation which will not stand up in court.”[iv]
What was convincing to the benchers was the fact that the Supreme Court of Canada’s (SCC) decision in 2001 involving TWU’s application to the British Columbia College of Teachers (BCCT) for accreditation of its education program still remained the law.
In the 2001 case the BCCT refuse to accredit TWU’s teacher training program [v] 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.” [vi] 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.”[vii]
Despite the recent opposition by virtually all of the law faculties and law deans across Canada, the BC Law Society felt it was compelled to abide by the law. That is as it should be. To have gone against TWU would have been to ignore the 2001 ruling of the SCC.
I am reminded of a conversation in Robert Bolt’s play A Man For All Seasons between Sir Thomas Moore and his son-in-law about giving the Devil the benefit of the law:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
More’s point was that even though he did not agree with his opponent he would give his opponent the benefit of the law. That appears to have been what was going on with the BC Law Society. They did not agree with TWU but, thankfully, they supported the rule of law.
We now await word from the Nova Scotia Barrister’s Society, The Law Society of Upper Canada, and The Law Society of New Brunswick.
[v] Trinity Western University v. British Columbia College of Teachers 2001 SCC 31.
[vi] Trinity Western University v. British Columbia College of Teachers, para 28.
[vii] Trinity Western University v. British Columbia College of Teachers, para 33.