Thursday 11 December 2014

Trinity Western's Upcoming Court Challenges: Some Thoughts

[UPDATE: Mere hours after I posted this, the B.C. government revoked its consent for TWU's law school, citing uncertainty due to the refusals by various Law Societies to recognize TWU law degrees. This isn't the end of it; the province has stated that TWU can re-apply after the legal challenges are done, and we can probably expect a court challenge to the B.C. government's decision, too.]

It's been well over a month since my last post; between the end-of-term scramble, preparation of exams, trying to get an article written, preparation for next term, and so on, it hasn't been easy to get back to belabouring things. Oh, and this post is (yet again) one that does not deal specifically with labour law. I'll get back to The Saskatchewan Employment Act soon. Promise.

In a little less than a week, on December 16th, Trinity Western University ("TWU") is going to court in Nova Scotia to present its argument that the Nova Scotia Barrister's Society acted illegally in refusing to recognize law degrees granted by the university. That argument is going to be broadcast online; see the link above.

So here I am, wading into this issue. I don't pretend this post is a definitive or comprehensive answer to the debate, nor do I pretend to know what the courts will do with TWU's court challenges. But it's been in the news and I've been thinking a lot about it; so here we go.

(I'll note that there have been some recent employment law-related issues regarding TWU. One TWU graduate in B.C. received an offensive, anti-Christian response to a job application; that's clearly discriminatory on the part of the employer. Though that story gets even more bizarre, as it seems unclear whether the company in question even exists. That's nothing to do with the law school, though.)

TWU, you see, wants to open a law school, and since it announced its intentions in 2012 it's caused a debate within the legal community and elsewhere.

For those who haven't been following the debate, TWU describes itself as "Canada's leading Christian university," and TWU's version of Christianity doesn't hold with equal marriage or with sexual relations between people of the same sex. Gay people are welcome to attend, TWU assures us, so long as they're not actually in same-sex relationships or in same-sex marriages, despite the fact that same-sex marriages are now perfectly legal in Canada.

As an aside, keep in mind that while homophobia has a long and less-than-honourable tradition within Christianity (and indeed other religions), times are changing - faster than many of us anticipated. Maclean's magazine had as a headline that "Lawyers vote against Christian law school", and TWU certainly bills itself as "Canada's leading Christian university" but there are other voices within the Christian faith. The United Church of Canada allows its clergy to perform same-sex marriages. The Anglican Church of Canada allows same-sex relationships to be "blessed" though it does not seem to allow actual marriage between people of the same sex. 

As part of its interpretation of Christian doctrine, TWU requires that all students at TWU must sign a Community Covenant Agreement which includes the following:

"In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:
  • communication that is destructive to TWU community life and inter–personal relationships, including gossip, slander, vulgar/obscene language, and prejudice
  • harassment or any form of verbal or physical intimidation, including hazing
  • lying, cheating, or other forms of dishonesty including plagiarism
  • stealing, misusing or destroying property belonging to others
  • sexual intimacy that violates the sacredness of marriage between a man and a woman
  • the use of materials that are degrading, dehumanizing, exploitive, hateful, or gratuitously violent, including, but not limited to pornography
  • drunkenness, under-age consumption of alcohol, the use or possession of illegal drugs, and the misuse or abuse of substances including prescribed drugs
  • the use or possession of alcohol on campus, or at any TWU sponsored event, and the use of tobacco on campus or at any TWU sponsored event."
Students can be subject to discipline if they breach the Covenant.

Of course it's the "sexual intimacy" clause that's the problem, especially now that same-sex marriage is legal in Canada. There's no question this policy is discriminatory.  Unmarried people are not to have sex, regardless of orientation; that's not a problem. Married opposite-sex couples can have sex; but married same-sex couples can't. And there's the rub.  

In addition, beyond the discriminatory distinction between different types of married couples, there's the general disapproval and condemnation of homosexual relationships. The Scriptural basis for the portion of the Covenant dealing with gay sexual relationships sounds pretty, well, extreme to modern ears. It's set out in a footnote in the full document - Romans 1:26-27.

Romans 1:26-27: "For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature:
And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet." (Text is taken from the King James Version, here.)
The Covenant is based on the idea that same-sex relationships are "vile"; "against nature"; a result of burning lust; "unseemly"; an "error" deserving of "recompence". More modern language (from the New International Version) is perhaps a bit less over-the-top but still pretty damning.

Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
So, no longer "vile", but "shameful", "unnatural", worthy of "due penalty".

Because of its Covenant, TWU hasn't had an easy go of it, despite early preliminary approvals across the country. Several law societies in Canada have now refused to recognize law degrees from TWU. In April, the Law Society of British Columbia recognized Trinity Western's law degree. But in a referendum in October, the members of the Law Society (i.e. lawyers) voted 74% to reverse that decision. The Law Society subsequently ratified that vote, and recognition of a TWU law degree is now in doubt in its home province. The Nova Scotia Barrister's Society has voted to recognize TWU law degrees only if TWU exempts law students from the Covenant or amends the Covenant generally; that decision is the subject of the previously-mentioned court challenge. New Brunswick, like B.C., initially voted to recognize TWU degrees, but subsequently voted to reverse that decision and the NBLS Council will decide whether to confirm that reversal on January 9. TWU has launched another court challenge to a decision by the Law Society of Upper Canada (i.e. Ontario) refusing to recognize TWU Law degrees. Saskatchewan and Manitoba's Law Societies seem to have put their accreditation "on hold". Alberta's Law Society seems to have delegated its decision to the national Federation of Law Societies, which granted preliminary approval to TWU in December of 2013.

(Note that refusal by law societies to recognize a TWU law degree is distinct from B.C. allowing TWU to have a law school in the first place. Even if every Law Society in the country refuses to recognize a TWU law degree, people can still graduate from TWU Law with their Juris Doctor ("J.D.") degree. But if a provincial Law Society won't recognize those degrees, then these TWU graduates might need to seek additional training prior to being admitted to that province's Bar. Elaine Craig, a law professor at Dalhousie University in Halifax, has suggested that TWU law grads could pursue accreditation through the National Committee on Accreditation, which deals with accreditation of lawyers who got their law degrees outside of Canada or whose training is in civil law (like in Quebec) rather than common law (like in every other Canadian jurisdiction).)

As with so many issues, the Covenant is not as simple as it may seem at first blush. TWU points out that gay students will be welcome at the new law school, so long as they do not engage in sexual activity. Bryan Sandberg, a gay TWU student, writes about how he feels loved and accepted at TWU.  And TWU has its supporters - some reluctant, others less so. Anna Wong, a litigator in Ontario, wrote regarding Ontario's decision that
After much intellectual wrangling with my feminist values, I have come to conclude that as distasteful and discriminatory as the community covenant is, the LSUC’s decision appears equally distasteful and discriminatory in effect. By denying accreditation to Trinity Western, the law society categorically denies its graduates the chance to practise in Ontario because they decided to exercise their freedom of religion to live by their Christian ethos and attend a private Christian university that reflects those values as set out in the community covenant without giving them an opportunity to demonstrate they have the legal and ethical competency to provide legal services.
Now, I take some issue with Ms. Wong's comments; it seems to me that TWU law grads could apply for admission under an accreditation process, or (as the Nova Scotia Barrister's Society suggests  in its brief) seek admission on a case-by-case basis, depending on the rules of that province's Law Society. That's not a full answer to her concerns, of course, but it's something.

Professor Dwight Newman, one of my colleagues at the College, argued earlier this year that opponents of TWU Law are desperate to avoid diversity "in legal academic thought in Canada".

And I've seen a few comments circulating around the Internet suggesting that this is really about law schools not wanting another competitor entering the fray - another law school means more competition for articling positions and jobs for graduates of existing schools. I'll file that one as an overly cynical misunderstanding of the situation, as is suggesting - from the other side - that TWU's hard-line against homosexuality is actually all about fundraising.

I have to admit I'm profoundly uncomfortable with the Covenant. For me, just as with the debate over gay marriage generally, I keep coming back to this basic question: if the limitations on sex or marriage were based on race rather than sexual orientation, would we even be having this discussion?

Okay, hang on, I hear you saying. Did you just bring racism into this debate? Why not just talk about Hitler, apply Godwin's Law to the discussion, and be done with it?

Well, I raise it because, as I said, this is the point I have kept coming back to. It's not that long ago that mixed-race marriages were prohibited in numerous states in the U.S. (they weren't declared unconstitutional until 1967. And people found religious justification for U.S. aniti-miscegenation laws, too, a taste of which is summarized here. And lest you think it's a relic of the past, you can read a current version of Scriptural support for anti-miscegenation at If you're really interested you can find the website - I'm not including a link because the website. while dressed up in scholarly and sympathetic language, is deeply racist, and I don't want to directly increase its traffic even in a small way.

If a university in Canada wanted to open a law school, but stated something like: "We accept and welcome students of all ethnicities, and those students may mingle socially. However, based on Scriptural and sociological reasons, students are expected to have romantic, marital, and/or sexual relationships only with students of the same ethnicity", there's just no way that would fly.

I honestly cannot think of a principled approach that would lead me to say that any university in Canada, regardless of whether it's a professional college or not, would be allowed to forbid its students from marrying outside their own race - whether or not that prohibition was based on Scripture or not.

And in terms of balancing Charter rights - here, equality rights under s. 15, and religious freedom under s. 2(a) - it seems to me that promoting acceptance (or preventing exclusion) of a historically excluded and persecuted minority should take precedence over the right to exclude based on freedom of religion. Neither right or freedom is absolute, but on balance, I'll err on the side of inclusion. And let's not forget that evangelical Christian students can already attend any law school in the country; another point to consider in the balancing of rights.

Now, that's my personal take on it. The legal situation's more complicated.

Why Precedent May Not Carry the Day

TWU had similar difficulties with its Education program. In the late 90's, the B.C. College of Teachers insisted that, in order to be admitted as teachers, TWU grads had to take additional training through Simon Fraser University.  TWU went to the Supreme Court of Canada and successfully challenged the B.C. College of Teachers' decision not to fully recognize TWU's education degree; Justice L'Heureux-Dube wrote a very strong dissent. The majority in the Supreme Court held that the BCCT's decision was unconstitutional - there was no evidence that TWU grads would discriminate against LGBT students, said the majority of the Court, and if they did, they would be subject to discipline, whether by their employer or by the College.

That's a pretty solid win for TWU, and given the ruling in the "Teachers Case", TWU's interim president can be forgiven for expressing surprise at the push-back against the law school.

But I think there are some differences here that may change the picture. The Teachers Case is definitely an important precedent for TWU, but it won't necessarily carry the day for them. Since 2001, the law has changed significantly in two spheres: recognition of same-sex marriage; and judicial review of decisions made by administrative tribunals. A third reason is that the reasons given by the Law Societies are not the same as those in the Teachers Case.

Prior to the vote in B.C., Thomas Berger, a prominent lawyer and former B.C. Supreme Court Justice, wrote a powerful comment on the "brooding conscience of the law", on the strong dissent by Justice L'Heureux-Dube in the Teachers Case, and why the result now, regarding TWU's law school, should be different than in 2001. In the article I mentioned earlier, Elaine Craig also notes the different legal context relating to the treatment of LGBT people in Canada.

First, and most importantly, in 1996 (when the BCCT made its initial decision) and in 2001 (when the SCC ruled on the Teachers Case), same-sex marriage had not yet been recognized in most of the country.

In 2004, the Supreme Court decided the Reference re Same-Sex Marriage case ([2004] 3 S.C.R. 698), which held that Parliament could extend the capacity to marry to same-sex couples. This decision came in the wake of lower court decisions in five provinces (including Ontario and Saskatchewan) and one territory, all of which had ruled that restricting marriage to heterosexual couples was discriminatory. In 2005, the Civil Marriage Act became law and same-sex marriages became legal across Canada. In the criminal law context, the Supreme Court has seemingly put a nail in the coffin of the "gay panic" defence in 2010 in R. v. Tran (which Craig mentions in her article), stating at para. 34 that "it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance" - though some argue that this defence may still linger in some cases.

And here in Saskatchewan, our Court of Appeal has ruled that marriage commissioners cannot refuse to conduct marriages for same-sex couples. In another case originating in Saskatchewan, the Supreme Court in the recent Whatcott decision adopted Justice L'Heureux-Dube's dissent from the Teachers Case in stating that discriminating against same-sex sexual conduct can be a "proxy for attacks" on same-sex individuals themselves (p. 525).

Second, Law Societies, like the BCCT, are "administrative tribunals", and their decisions are subject to "judicial review" (I mentioned judicial review in passing in relation to the LRB regarding the transit lockout decision). But Law Societies may be held to a more forgiving standard. The BCCT, in deciding not to grant full certification to TWU education grads, was held to the standard of "correctness" - in other words, it was given no deference by the court. The Supreme Court stated (p. 804):

[The BCCT's] expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights. It cannot seriously be argued that the determination of good character, which is an individual matter, is sufficient to expand the jurisdiction of the BCCT to the evaluation of religious belief, freedom of association and the right to equality generally...The absence of a privative clause, the expertise of the BCCT, the nature of the decision and the statutory context all favour a correctness standard.
...The existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.
But the legal framework's changed, here, too.  Administrative tribunals now have not only the ability but a duty (R. v. Conway, [2010] 1 S.C.R. 765) to consider Charter remedies and factors - assuming the remedy is within the tribunal's power and jurisdiction in the first place. It may be arguable in this case whether the mandate of the Law Societies extends to considering Charter and discrimination issues, but there's no question the Courts' approach to administrative tribunals has changed since 2001.

There's also a decision ((Dore v. Barreau du Quebec, [2012] 1 S.C.R. 395) which held that the courts should take a more "flexible" approach in reviewing decisions by tribunals that relate to Charter issues. The Court in Dore did hold that administrative tribunals have to balance Charter values with their various statutory objectives or mandates - though Dore refers specifically to Charter applications relating to individual applicants. Again, a more deferential stance by the Courts. But, that said, those Law Societies who have refused to recognize TWU's law degrees may have a problem if it can be shown they didn't fully consider the Charter rights and freedoms at play here, though by all indications the discriminatory effect of the Covenant, on one hand, and freedom of religion, on the other, seem to have been considered by all of the Law Societies concerned.

There's also the fact that Law Societies involve, well, lawyers. The Supreme Court in the Teachers Case based its decision, in part, on the expertise of the BCCT. While TWU had argued that schoolteachers aren't qualified to adjudicate human rights issues (p. 802), the Court didn't go quite this far, but did hold that the BCCT as a body didn't have expertise on human rights issues (p. 804) and noted that the BCCT had asked for a legal opinion prior to making its decision. I suspect that this argument would be harder to make when dealing with Law Societies.

Third, and finally (whew!), the Law Societies who have refused to recognize TWU law degrees seem to be raising different issues than those raised in the Teachers Case. You can read the Nova Scotia Barrister's society Brief of Law here; at paras. 29-31 the Brief states:

"The concern is not to keep Evangelical Christians out of the profession in this Province. Instead, the goal is to ensure that LGB persons, as a historically disadvantaged minority, do not experience unnecessary barriers to entry, and are not made unwelcome in the legal and judicial professions in Nova Scotia. The Society cannot approve the de facto reservation of all of the spaces in one of only 19 common law schools in Canada exclusively for heterosexual persons...The Society's concern is not with the beliefs of its members, but with the diversity of the profession...
"...The BC Teachers case was argued largely on the basis that teachers trained at TWU would not be qualified to teach in the public school system because of the risks of discriminatory conduct flowing from their belief that same-sex sexual acts are "sinful", "an abomination", and "contrary to nature".
"This is not the basis for the Society's refusal to recognize TWU's law degree. The Society's refusal is based on its need to act in the public interest by promoting diversity in the profession."
Whether this will fly, I don't know, but again, we see here a different argument, and a different context, than what was before the Court in 2001.

That's not to say, however, that the Teachers Case won't carry the day for TWU. It may. And even with the changes I've mentioned, it would still be open to the Courts to say that the Law Societies in this case don't have the jurisdiction or the statutory mandate to consider these issues. Or that the decisions weren't made in the right fashion or for the right reasons.

TWU could exempt law students from its Covenant, but I don't see how it can do that without either turning its back on its religious doctrine or without alienating its backers and donors. It seems unlikely at this point (considering B.C.'s experience) that the Law Societies will back down in the face of their membership, either.  Ultimately, it will probably fall to the Supreme Court of Canada to (again) rule on this still-controversial issue. 

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