Can graduates from an antigay law school defend equality?

by Lisa Johnson

nationIf you get admitted to Trinity Western University’s brand new law school (opening in fall 2016 in Langley, B.C.), you’ll be signing an agreement to live a biblically based lifestyle throughout your time on campus.

The school’s “community covenant,” which makes a point of reserving sexual intimacy for marriage and as a means for procreation “between one man and one woman,” has prompted two provincial law societies to vote against letting graduates of the university practise in their province — and sparked a fiery debate across Canada.

“It’s a huge issue right now. Law school faculties have passed motions across the country urging TWU to reconsider their covenant,” says Sarah Buhler, an assistant law professor at the University of Saskatchewan who researches access to justice and legal education issues.

TWU isn’t the first faith-based post-secondary institution in Canada, nor is it the first to require students (and staff) to agree to a code of conduct. But it would be the first religious law school in Canada.

TWU President Bob Kuhn has said the institution is being unfairly targeted, calling the negative response an attack on freedom of religion. Of course, critics (and Kuhn) have to assume that students will whole-heartedly buy into the traditional Christian worldview of the covenant in the first place.

As it stands, TWU graduates will be able to practice in Saskatchewan. The Federation of Law Societies of Canada (FLSC), which governs all provincial law societies, approved the school last year — and bound by a mobility agreement guaranteeing that lawyers recognized in one province can work in any other, the Law Society of Saskatchewan followed suit.

But in late April, the Law Society of Upper Canada (a.k.a. Ontario) declined accreditation to the new college — a move it has never made before. One day later, the Nova Scotia Barristers’ Society voted to recognize TWU’s graduates — if the university scrapped the covenant.

In B.C., the Benchers of the Law Society has approved the school, but that decision is being challenged.

Ultimately, TWU’s accreditation will be decided by litigation in all three provinces.

A special advisory committee at the FLSC concluded that as long as the national requirement that outlines the “knowledge and skills competencies” is fulfilled, “there is no public interest reason to exclude future graduates of the TWU program from law society bar admission programs,” according to a December news release from the federation.

“To me it’s clearly discriminatory against LGBTQ students; I don’t think there’s much of an argument there. It’s [also] clearly an access issue, in terms of students who cannot adhere to that covenant,” says Buhler.

“There are limited spaces in law schools across the country. It’s not easy to get into a law school. [But] TWU has already been given the approval to go ahead, so the concerns are about what will happen with the graduates of this school,” she says.

This isn’t the first time TWU has come under fire for its covenant. In 2001, after the B.C. Teachers’ Federation refused to recognize TWU grads because they were worried that the covenant would foster discrimination, the Supreme Court ruled in favour of the freedom “of individuals to adhere to certain religious beliefs while at TWU.” Since the court saw no evidence that these beliefs would translate into action, the Teachers’ Federation was forced to approve Trinity graduates.

“We looked at that and said that that law applies to us as well. So, whether you like their community covenant or not, we have to abide by Supreme Court ruling. With that said, this will be settled by the courts again,” says Tom Schonhoffer, executive director of the Saskatchewan Law Society.

But the legal landscape has changed dramatically in the past 13 years. In 2005, for example, the Civil Marriage Act established marriage equality in Canada.

“Our understanding of equality rights has changed. A lot of people have said that jurisprudence has moved along since then, so if [the B.C. Teachers’ Federation case] came to the Supreme Court today, it might turn out differently,” says Buhler.

“I certainly think the climate has changed, and public opinion has changed, but that’s not what necessarily determines the issue. I think there is a lot more acceptance — but freedom of religion is still a very strong right. I don’t think I can predict what the outcome will be,” says Schonhoffer.

For critics of TWU, the question remains: can the school’s graduates be counted on to apply equality sections of the Charter of Rights and Freedoms?

“A lawyer must not discriminate against any person. Lawyers aren’t required to represent any person — there’s a freedom of contract to some extent — but on the face of it, lawyers have an obligation to not discriminate. That commitment to equality is a really important part of the practice of law,” says Buhler.

The main concern isn’t about litigation, but about the kind of behind-the-scenes advice lawyers might give to clients such as corporations or governments, said Michael Plaxton, an associate professor of law at the U of S, in an e-mail interview.

“Importantly, human rights regimes are among the legal waters that must be navigated. The suggestion by some critics is that the covenant will encourage students to uncritically accept their discriminatory attitudes towards LGBTQ persons, and lead them ultimately to interpret human rights frameworks in an unduly narrow way,” he says.

Critics argue that if scripture is beyond reproach at TWU, graduates will begin their careers with critical thinking skills that are less than adequate for the practise of law. But according to the FLSC, the academic requirements set out for every other law school in Canada have been met in TWU’s proposal. Beyond this, opposition to the school tends to be symbolic: allowing TWU to train lawyers sends a disturbing message in a country that espouses equality.

Ultimately, the justice system already relies on lawyers being able to saddle their personal beliefs, says Plaxton.

“We need to consider the fact that there are almost certainly people practicing law already who hold discriminatory attitudes, whether for religious or other reasons. To focus on graduates of TWU might seem like ‘picking on’ the religious law school for no other reason than that it is religious.”

But as you’d expect in the case of a university trying to prohibit students in dorm rooms from having premarital sex, doubts and concerns remain.

“Lawyers cannot just fall back on their own personal, ethical, or religious beliefs. They have a duty to uphold a code of conduct, and the law in Canada generally. That’s how the profession needs to operate in order for things to function. So the concern is: will the education they receive enable them to do that? The hope is that they will,” says Buhler.