TWU HAS CHARTER RIGHT TO BE A DISTINCT ENTITY

Law societies prejudiced against religion, Kristopher Kinsinger says.

By now, many if not most will be well acquainted with the saga of Trinity Western University’s efforts to open a school of law, which would be the first religious (and private) law faculty in Canada.

Initially on track to open its doors in 2015, the university was forced to put its plans on hold following staunch opposition from the Law Societies of British Columbia and Upper Canada (Ontario) and the Nova Scotia Barristers’ Society, along with other prominent members of the legal profession.

The controversy concerns Trinity Western’s Community Covenant, a schoolwide code of conduct which reflects traditional Christian teachings and practices. At issue is the relatively small section on sexual ethics, which calls on students to abstain from sexual intimacy outside of the Biblical model of marriage between one man and one woman. After significant internal debate, the aforementioned law societies all decided not to accredit the law school, insisting that the Community Covenant is contrary to the public interest since it discriminates against LGBTQ students.

It didn’t take long for Trinity Western to take all three law societies to court, arguing that their respective decisions did not follow fair administrative procedures and further violated the university and its future law graduates’ rights to freedom of religion, freedom of association and religious equality under the Charter of Rights and Freedoms. As of last November, Trinity Western’s application for judicial review was successful at both levels of court in British Columbia and Nova Scotia while being consecutively denied in Ontario. In February, the Supreme Court of Canada granted leave to appeal in both the British Columbia and Ontario cases, with the Nova Scotia Barristers’ Society deciding not to appeal.

I am a Christian law student. It may be unsurprising, then, that I share the opinions of the Nova Scotia Supreme Court and the British Columbia Court of Appeal — namely, that a proportionate balancing of all applicable Charter rights and values requires that Trinity Western’s law school be approved. Yet I also recognize that this is a deeply complex case; no fair-minded person would deny that the Supreme Court will need to deftly weigh all of the important Charter considerations that are at play following last week’s rare two-day hearing in Ottawa.

Still, the complexity of the case should not diminish the fact that each of the law societies’ respective decisions were underpinned by an implicit strain of prejudice toward the very idea of a religious law school. Indeed, it has since become increasingly clear that part of the opposition to Trinity Western stems from the fact that in this secular age the school dares to suggest that the study of faith and law are not antithetical pursuits.

During the debate over whether to accredit the university’s law graduates, for example, several of the elected representatives of the Law Society of Upper Canada took specific issue with Trinity Western’s status as a religious institution. As the Law Society’s treasurer at the time opined, the idea of a religious professional school is itself a contradiction in terms: “not a religious school. And in my mind that should be very separated from right to have a seminary or some institution that produces religious officers …” Later in the same debate a prominent Toronto lawyer similarly questioned — quite insensitively — why evangelical Christians would want to have their own law school at all. “Now, last time I looked at the Bible,” he sarcastically quipped, “there was no command, no teaching from anyone, go out, be fruitful and found a law school.”

These prejudicial attitudes are further reflected in the Law Society’s written arguments filed at the Supreme Court, which insist that Trinity Western’s “distinctly Christian” culture is itself contrary to the public interest. Specifically, they contend that Trinity Western impermissibly discriminates against “individuals who do not share a thoroughly Evangelical Christian world view” because the university’s core identity is “formed by a firm commitment to the person and work of Jesus Christ” (the Law Society’s emphasis, not mine).

Yet as legal scholar Faisal Bhabha has argued with regard to Trinity Western, “The fact that religiously informed rules have an exclusionary effect dissuading members of other groups from seeking admission is consistent with the purpose of establishing such an institution in the first place.” The Charter’s guarantee of equality, as Bhabha explains, is a two-way street, and must apply just as fully to religious minorities as it does to other equality-seeking groups.

Regardless of whether Trinity Western’s Biblically-informed stance on sexuality can reasonably be said to be contrary to the public interest, there should be no question over the university’s Charter-protected right to exist as an equal and distinct religious community. Whatever the Supreme Court decides concerning Trinity Western’s law school, the law societies must reaffirm that there is still room in their professions for those of us who seek — either collectively or as individuals — to practise law in accordance with our “distinctly Christian” identity.

The fact that religiously informed rules have an exclusionary effect dissuading members of other groups from seeking admission is consistent with the purpose of establishing such an institution in the first place. FAISAL BHABHA, legal scholar