NICOLAS L. FRANCIS
<Contributor>
In recent weeks, Trinity Western University’s (TWU) proposal for a law school has sparked much debate and discussion. The popular reaction from students, as reflected by tweets, status updates, and petitions, has generally been one of strong disapproval. However, often drowned out — but not absent — are the alternative voices in the debate. For instance, President Lindsay Lyster of the British Columbia Civil Liberties Association, the same group that fought for LGBTQ rights in the Little Sisters case, has written to the Federation of Law Societies (FLS) in support of TWU’s proposal. In this piece, I also wish to challenge some common perceptions and voice why TWU has a strong case for a law school.
At the outset, I note that much of the recent controversy surrounds TWU’s Community Covenant. Among other provisions, the Covenant requires community members to “voluntarily abstain from” activity such as gossip, lying, pornography, drunkenness, and “sexual intimacy that violates the sacredness of marriage between a man and a woman.” It is especially important to note the use of the word “voluntarily.” Signing and adhering to TWU’s Community Covenant, (an aspirational document that applies only on campus and during the academic year) is a voluntary act: it is part of accepting the offer of admission and choosing to join a private community. Likewise, TWU accepts no public funds. Like other religious schools in Canada, TWU has the freedom to set rules that best foster its desired environment, one that is supportive for its faith adherents, seekers, and their collective goals. Tuition at TWU is far from cheap, but such is the cost that many students are willing to bear — rather than going down the path of public accommodation — in order to obtain their desired educational environment.
For now, any issue of alleged discrimination is not central to the matter before the FLS. FLS must decide whether TWU can provide adequate legal training to its students to merit accreditation. The Federation of Law Societies (FLS) has already confirmed this much in its reply, dated 4 December 2012, to the Canadian Council of Law Deans. In that letter, the FLS stated that its mandate is to assess solely whether TWU would be able to offer a curriculum that includes the “substantive knowledge of Canadian law” as defined by national requirements. The wisdom of the Community Covenant, for now, is not on the table.
TWU has a compelling case supporting their application. The reality is that TWU has received much recognition for its excellence in teaching and its academic environment. The Globe and Mail’s Canadian University Report gave TWU an A+ rating in Quality of Teaching and Learning for seven consecutive years, a recognition that no other university in Canada has received. Moreover, TWU has consistently ranked among the top universities in the Maclean’s rankings, and the 2012 Canadian University Survey Consortium listed TWU as one of the top three universities in all five of its categories. From this record, there is nothing to suggest that TWU cannot bring the same level of excellence to its proposed law school, a level of excellence that it currently brings to its three professional schools and 13 other graduate programs.
Opponents of TWU’s proposed law school have contended that the Community Covenant discriminates against LGBTQ individuals and, as such, makes TWU unfit to host a law school — notwithstanding its religious affiliation. This argument finds support in Justice L’Heureux-Dube’s dissent in Trinity Western University v British Columbia College of Teachers (TWU), in which the Honourable Justice stated that one cannot “separate condemnation of [the] ‘sexual sin’ of ‘homosexual behaviour’ from intolerance of those with homosexual or bisexual orientations.” The logic seems to be that if TWU requires students to abstain from homosexual sex, then TWU must be intolerant of LGBTQ students and therefore should not be allowed to train lawyers who will have to uphold Charter values. However, I respectfully reject this argument for a few reasons.
First, the assertion that certain classes of individuals are unwelcome at TWU is simply untrue. Every year, TWU admits and boasts a diverse student body that includes LGBTQ individuals and members of various faiths. Once at TWU, many of these individuals have found a learning environment that is both respectful and supportive. In fact, from the time that this controversy had arisen, many LGBTQ students and graduates at TWU have publicly voiced their support for TWU and defended the Community Covenant. On CBC’s Early Edition on 28 January 2013, one such TWU graduate, Bryan Sandberg, spoke of a “powerful acceptance” at TWU that far surpassed his expectations. While Sandberg did not agree with all of the rules in the Covenant — many students do not — he was, nevertheless, willing to abide by them. It is also worth pointing out that the Community Covenant also operationalizes many tenets central to the Christian faith, such as compassion and respect for every individual, and prohibitions against harassment and verbal intimidation.
Second — and perhaps most important — the view that intolerance for homosexual acts necessarily indicates intolerance for homosexual individuals is based on the presumption that, if one is homosexually (or bisexually) oriented, then he or she will necessarily engage in homosexual sex. Consider this for a moment: do we honestly believe that an individual cannot be homosexual unless he or she acts on his or her homosexual orientation? This cannot be true. Surely, one may have a certain disposition and choose not to act on it; this holds true for all people irrespective of their sexual orientation. I can understand if this argument might sound absurd to those who believe that a denial of homosexual acts is a fundamental denial of LGBTQ identity itself. However, this fact is not foreign to many seekers and adherents of the Christian faith, heterosexuals and homosexuals alike, who have willingly pursued such a path of abstinence. There is no monopoly on the LGBTQ experience or what it should be. LGBTQ individuals should have the option of attending a school that reflects and supports their choices.
Third, even if TWU’s Community Covenant might be considered discriminatory in that it requires persons in same-sex civil marriages to abstain from sexual activity on campus, this fact alone does not mean TWU produces students who will engage in discrimination. While much has changed since 2001, when the TWU case was decided, the central holding of TWU has not: the freedom to hold beliefs is broader than the freedom to act on them. Nor has there been any evidence since 2001 that TWU nurses, teachers, or business professionals have engaged in conduct contrary to Charter values. In terms of law, many graduates of TWU currently attend law schools across Canada, and in fact, many are at Osgoode. All of these students have once upheld TWU’s Community Covenant, and many still live out some form of the Covenant in their personal lives. In spite of this, law school admissions officers here and nationwide still believe that these students are capable of being successful lawyers who will uphold the Charter and the values of professionalism at their schools and in their future practices. The same reasoning also applies to graduates of private American Christian law schools who choose to practice law in Canada. If any of these individuals be found to have engaged in any discriminatory conduct, their Law Society could accordingly deal with these individuals through its pre-bar admission character assessment or professional disciplinary committees.
Some have argued that an institution like TWU, with its Community Covenant, should not be in the business of training future lawyers. Again, I disagree. TWU-trained nurses, teachers, and business professionals have been quite successful in their fields, and they all work in fields that arguably have the same, if not a greater, public dimension to them as law. It is difficult to conceive of an attribute that is unique to law that would prevent TWU law students, as opposed to other TWU graduates, from being similarly successful in the field of law. Perhaps the concern is that, unlike some of the more empirical subjects such as physics, the law is more susceptible to subjectivity and might be taught in a way at TWU that encourages discrimination. This view, however, makes little sense. Just as there is no course on “Christian Physics” at TWU, there will be no course on “Christian Criminal Law.” Canadian law is not anti-LGBTQ, and so the law taught at TWU will not be anti-LGBTQ. TWU law graduates will have to pass the same bar admission exams as students at Osgoode if they wish to practice; if they wish to succeed, they will also have to learn and use the same law to its fullest measure.
Before concluding, I also invite you to consider this matter from a slightly different perspective: from that of an individual who is or seeks to be a part of a private religious school, organization, or community in Canada like TWU. Just as it is paramount for Canadians to affirm the Charter rights of the LGBTQ community, it is also important to recognize the freedom of religion, freedom of association, and the equality rights of those in the TWU community. It is often said that the debate over accrediting TWU’s law school is the classic clash of rights. On balance, however, and in light of the facts and evidence, the denial of accreditation of TWU’s law school — on the sole basis of its having the Community Covenant — would be the greater injustice. If TWU’s track record is indicative of its future success, the institution is certainly capable of building an excellent law school. If TWU were to be denied accreditation because it cannot provide a quality legal education or because of some other reason (such as the oversupply of lawyers or the FLS’s blanket refusal to go down the path of private legal education), so be it: the legal world will continue without TWU’s law school just as it will with TWU’s law school. But denying a private institution and their members the freedom to uphold certain beliefs, however disagreeable those views may be, is neither legal nor right; it certainly is not becoming of a free and democratic society that is truly committed to the Canadian Charter of Rights and Freedoms.
Note: As of the Obiter Dicta’s deadline, three submissions were received concerning the proposed law school at Trinity Western University, all of which appear herein. The Obiter’s official position on the proposed accreditation is diplomatically vague and was expressed, complete with multiple allusions to the Lord of the Rings, in the March 25 editorial.
However, we do understand that this is a topic on which many Osgoode students hold diverse opinions. There having been no poll, it is impossible to say which position is the majority opinion (if there is one) and which is the minority. In either case, no point of view holds a monopoly in these pages.
In the spirit of debate, the Obiter will continue to accept thoughtful submissions of less than 1200 words on the topic until Thursday, April 11, and will publish them forthwith in its online edition.
We also encourage you to make liberal use of our Comments section below!