Bearing false witness

By Douglas Judson May 5, 20145 May 2014

The debate over the accreditation of TWU's law faculty has exhausted tremendous resources to reach an outcome that should have been clear from the beginning.

Bearing false witness

Licensed under by torbakhopper under Creative Commons (CC BY-ND 2.0)

In late April, the Ontario and Nova Scotia law societies voted to withhold accreditation from the proposed law school at Trinity Western University (TWU), while B.C. lawyers successfully requisitioned a general meeting of their law society to reconsider its decision to accredit the school. In provinces where the school is not accredited, graduates would not be able to pursue articling positions or write the bar exam.

The controversy stems from TWU's Community Covenant Agreement, which requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” The policy plainly discriminates on the basis of sexual orientation, against lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals. Its breach carries disciplinary sanctions, up to expulsion.

In response to the law societies' decisions, TWU supporters have levelled illogical and misleading criticisms at their opponents. Sadly, these claims of anti-Christian discrimination are not rooted in coherent principle, but falsehoods designed to skew public sympathy.

First, no one seriously claims that a Christian university is incapable of educating competent, ethical lawyers or that religious students are unfit to become lawyers.

In the aftermath of the law societies' decisions, TWU proponents claim that the refusal to accredit the school is an act of bigotry and intolerance towards Christians. This is nonsense, crafted to evoke the sympathies of those unfamiliar with the issue and those that long for the bygone days of Christian moral hegemony.

Let's be clear: the law societies did not decide that a Christian university was an undesirable venue for a new law school or that its graduates would be unfit for legal practice. The respectful discussions that took place in Ontario and Nova Scotia do not snub religious freedom. The issue before the benchers in both provinces was whether they could accredit a law school with policies that exclude certain groups from a pathway to joining the profession - in this instance, institutionalizing discrimination against LGBTQ individuals.

What the decisions do indicate is that erecting a barrier to the legal profession for a specific minority group would be inconsistent with the law societies' public interest mandate. No one denies that TWU is capable of delivering a quality education or suggests that its graduates would not meet the competency or ethical standards of the legal profession. Christians have not been "blacklisted" from the profession - rather, archaic TWU policies have. Such accusations are, at best, exaggerated victimhood, and at worst, self-righteous demagoguery.

Second, TWU's legal references are outdated and incorrect.

TWU insists that this issue was decided by Canadian courts in their 2001 suit against the B.C. College of Teachers (BCCT). This is false gospel. BCCT decided whether teachers who graduated from TWU would discriminate when they entered their profession. No such allegations have been made about future TWU law grads. The issue here is whether a law society can accredit a law school that discriminates with respect to those who are able to attend the school - imposing a 'queer quota' on Canada's law school admissions.

While the BCCT parable is a stretch, it cannot be ignored. However, Supreme Court jurisprudence has significantly progressed over the past 14 years. In the 2013 case of Whatcott, the Court unanimously departed from the “hate the sin, love the sinner” rationale adopted by TWU in 2001. It embraced Justice L’Heureux-Dubé's dissent in BCCT: an institution cannot condemn a practice central to the identity of a protected and vulnerable minority without discriminating against its members. Here, banning sex between LGBTQ individuals effectively bans LGBTQ individuals.

Further, the 2012 Supreme Court decision in Doré imposes an obligation on law societies to apply the Charter of Rights and Freedoms and human rights codes when they make decisions. This means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest may not approve such rules if they are discriminatory. The College of Teachers was under no such express obligation in 2001. As such, TWU can have a law school, but law societies must operate in the public interest and cannot rubber-stamp a discriminatory pathway to their profession. Freedom of religious belief does not entitle the believer to infringe upon the liberties of others. In practicality, a private institution must adapt its policies and practices if it wants to be accredited by a body operating in the public interest and that must uphold Canadian law and public policy.

Of course, one would hope that an institution seeking to instruct the law could muster a fair representation of its evolution over the past decade and a half. TWU’s chief advocate, their President, worked on their 2001 case and should be aware of that decision’s limitations. Apart from this, the tremendous advancements in the recognition of LGBTQ rights since 2001 may have seen BCCT decided differently today.

Third, by insisting on a binary "us versus them" debate, TWU undermines its own claims of safe space and tolerance.

By continuing to characterize the decisions as a slight against their interpretation of Christian morality, imposed by heathen outsiders, TWU compromises its own suitability for a law school. This fear-monger strategy is unbecoming of an institution that has spent the past year glorifying its record of acceptance to win over law society support.

TWU's insistence upon this homily exposes its innate hostility to those that cannot adhere to its Covenant and suggests an incapacity for tolerance. Their contradictions are manifold. TWU invokes Canada's pluralistic society to justify discrimination, as if they are natural corollaries. TWU claims acceptance, while framing the debate as if Christians and gays are mutually exclusive groups, shortchanging the real challenges still faced by LGBTQ individuals and leaving no doubt about who is unwelcome or lesser. TWU supporters conflate their perceived loss of privilege with de facto discrimination. Petitions such as TheRealBigots.com have arisen online, drawing more "us versus them" lines in the sand.

These assertions lend credence to the affidavits of TWU's gay alums, like Jill Bishop, who writes, "I did not feel able to raise other perspectives on homosexuality. I felt a real risk of expulsion." These are not the words of openness and diversity that should herald the creation of a new centre for legal thought or a safe environment for young people to grapple with the stress of law school.

Moreover, the inference that TWU's rejection by the law societies is the work of powerful secular zealots amounts to hogwash. Following some initial concern from Canada's law deans, the TWU issue first entered public awareness in spring 2013 when students sounded the alarm to the Federation of Law Societies of Canada. Since then, a diverse range of young lawyers, LGBTQ persons, allies, and individuals from groups that have experienced discrimination have been engaged in the discussion and debate - petitioning law societies, writing benchers, and pushing 9 law school faculties to speak out. These motley sinners are hardly the image of elite, godless conspiracy or the bogeyman of "gay fascism."

In sum, the pro-TWU response to the law societies' decisions is disingenuous. There is no assault on religious freedom. Such uncompromising and divisive rhetoric has ceded the high ground to opponents who have been guided by principle – the principle that accredited law schools ought to provide equality of opportunity without discrimination to all qualified individuals. The approach of TWU critics has been forthright and truthful, informed by the historical disadvantage of some groups in the legal profession and society.

These principles of equality ought to be codified with law society policies on non-discrimination in legal education. The absence of such a framework provides a podium for airing prejudice and perpetuating antiquated and hurtful views about minorities whenever an accreditation request arises. The process itself has exhausted tremendous resources to reach an outcome that should have been clear from the beginning. While both law societies have taken the right course of action, their close votes provide far too much comfort to holdouts of hatred on widely-accepted legal principles of equality.

Douglas Judson is a JD/MBA candidate at Osgoode Hall Law School and President of the Law Students’ Society of Ontario. The opinions expressed are his own. Follow him at @dwjudson.

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Comments
Bob Smith 5/8/2014 9:43:45 PM

I read the your piece . It’s actually quite rich for you to accuse Trinity Western’s defenders of promoting falsehoods given that a number of your arguments are either strawmen, wrong or misleading.

I give you one example. In the article you state:

“While the BCCT parable is a stretch, it cannot be ignored. However, Supreme Court jurisprudence has significantly progressed over the past 14 years. In the 2013 case of Whatcott, the Court unanimously departed from the “hate the sin, love the sinner” rationale adopted by TWU in 2001. It embraced Justice L’Heureux-Dubé’s dissent in BCCT: an institution cannot condemn a practice central to the identity of a protected and vulnerable minority without discriminating against its members.”

First, to suggest that the application of the BCCT decision to the LSUC’s decision “is a stretch” can only be characterized as disingenuous in the extreme – that decision addresses the question of whether a professional regulatory body can refuse to accredit the graduates of a private university based on that university’s otherwise legal internal policies. That’s directly on point both on the legal analysis and (helpfully, since its the same university) the facts. It’s one thing to suggest that the law has changed, but if it hasn’t the TWU decision is determinative.

Second, you misrepresent the conclusion of the SCC in Whatcott (and, it should be said, Dore) in support of the proposition that the law has chanegd. The Court in Whatcott did NOT embrace L’Hereux Dube’s dissent from TWU, rather it embraced her summary of the law on a unique point on which she agreed with the majority. From Whatcott:

“L’Heureux-Dubé J. in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, in dissent (THOUGH NOT ON THIS POINT), emphasized this linkage…” [emphasis added]

I’m not sure how you can read that sentence and conclude, in good faith, that the SCC embraced L’Heureux-Dube’s dissent. In TWU, the majority of the SCC clearly accepted that the TWU covenant was discriminatory – the point at issue in Whatcott - and no one seriously suggests otherwise. However, the crux of the issue in TWU was that the discriminatory behaviour was LEGAL under the BC Human Rights Code (and, I note, would be legal under the Ontario Human Rights Code) and was not prohibited under the Charter (since TWU is a private institution). Nothing in Whatcott disturbs that conclusion.

Moreover, while the majority of the court recognized that TWU's covenant engaged the charter values embodied by the section 15 protection afforded to homosexuals under the Charter (which, as a public body, the BCCT had to consider), they also noted that those values had to be balanced with the sections 2(a) and 15 rights also afforded to religion under the Charter and concluded that the BCCT of teachers failed to properly balance the religious freedoms of TWU graduates against those rights. Again, nothing in the subsequent cases you cited suggest that the law has changed on that point - indeed, in Dore the SCC cited the majority opinion in Trinity Western as the basis for their decision. Far from rejecting the earlier decision, the SCC endorsed it.

So, in Whatcott (and Dore), far from departing from the reasoning of the majority in TWU, the SCC affirmed the reasoning of the majority.

So, not only are you arguing against a strawman (i.e., the claim that TWU’s covenant isn’t discriminatory – the SCC clearly found that it is, but that it was permissible), but you're misrepresenting the substance of the subsequent SCC decisions by suggesting they came to conclusions that is, are their face, literally the exact opposite of what they did.


Bob Smith 5/8/2014 10:13:14 PM

I don't understand how you can read the TWU decision and the Dore decision and come to this conclusion:

"Further, the 2012 Supreme Court decision in Doré imposes an obligation on law societies to apply the Charter of Rights and Freedoms and human rights codes when they make decisions. This means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest may not approve such rules if they are discriminatory. The College of Teachers was under no such express obligation in 2001."

The notion that professional regulatory bodies must take into account charter values didn't original in Dore, it originated in TWU. In TWU, the SCC held that the BCCT was obliged to take into account charter values in accrediting universities - but they had to balance the section 15 rights against discrimination afforded to gay and lesbians against the equally valid sections 2(a) and 15 rights afforded to religious beliefs and religious believers. In TWU, the majority concluded that in refusing to accredit TWU students, the BCCT failed to adequately balance those charter values.
In the Dore decision, the SCC didn't overturn TWU, it cited the decision in TWU as the basis for the proposition that the same obligation applied to law societies. Far from overriding the earlier TWU decision, it endorsed it on this key point.

It very disappointing to see otherwise intelligent people misrepresent the actual reasoning of the SCC on this issue.



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