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June 13, 2018

TWU free to teach what it wants, no matter what SCC says


Trinity Western University can open a law school no matter what the Supreme Court decides. It’s important that partisans on both sides keep this simple truth in mind as Canada’s top court prepares for June 15, when it will release two decisions in cases which pit an evangelical Christian university against provincial law societies.

At the centre of the cases is the school’s community covenant, which forbids intimacy outside of the bounds of heterosexual marriage on and off campus for the duration of a student’s studies. The covenant amounts to an extra burden on lesbian, gay, bi, trans and queer (LGBTQ) students and law school applicants.

The upshot of Trinity Western’s requirement would be an unequal number of seats in Canadian law schools for LGBTQ students (who, for the most part, cannot sign the covenant in good conscience) compared to their heterosexual peers. But the truth is, no one is trying to stop that outcome.

No one has forbidden the university from opening a law school. No one has challenged the school’s right to teach what it wants to who it wants — although, to be fair, the B.C. government has for the time being withheld its accreditation in the face of messy litigation. That means that while Trinity Western can teach what it wants, it can’t call the result a law degree. The government promised to revisit the law school’s accreditation after the Supreme Court decision.

It was not in the power of the law societies to deny a law school to Trinity Western even if it had wanted to. The decisions under review were made by the law societies of Ontario and BC, respectively. In both cases, the law societies voted to withhold automatic admission to the provincial bar for graduates of Trinity Western’s proposed law school. Alternative routes to practice for Trinity Western grads were not canvassed at the time of the decisions.

And to be clear: no law students were harmed in the making of this decision, since the law school never got off the ground. It never admitted students, let alone graduated them.

The Charter and the BC Human Rights Code protect the right of religious communities to teach what they want to who they want. Anyone can set up shop under a eucalyptus tree and peddle their intellectual wares. Such schools can teach that homosexuality is sinful, that women should be subordinate to men, and that other religious beliefs amount to Satanist witchcraft (no offence to Satanists and witches). Many such classrooms exist in Church basements and other religious meeting places. And there’s nothing wrong with that.

The question posed to the Supreme Court is, essentially, to what degree are secular institutions required to provide public benefits like accreditation to such classrooms — especially when classrooms offend secular values of diversity and pluralism.

In the United States, the question was answered thirty-five years ago, when Bob Jones University sued the U.S. government for revoking its tax-exempt status. Bob Jones allowed Black students to attend only if they were already married, in an effort to prevent intermarriage between its white students and Black enrollees. The University claimed the protection of religious freedom.

The U.S. Supreme Court’s conclusion: you are free to have your discriminatory university, but the state is not required to heap benefits on it.

The truth is, a law department brings money and prestige to a university campus, especially now that some law schools charge upwards of $30,000 a year to attend. But that money and prestige is linked to graduates’ ability to practice in the Canadian jurisdiction of their choosing, especially Ontario (the largest market for legal services in Canada) and B.C. (a province from which the proposed school would presumably draw many of its applicants).

The implications of this should help temper dire warnings on both sides.

For the university’s supporters, they would do well to admit that the cost of non-accreditation is primarily monetary. Trinity Western is free to open a money-losing religious law program, but they don’t want to do that. They want a cash cow, and they want the state’s imprimatur on it.

For critics of the proposed law school, we must stop telling religious adherents that they are forbidden from practicing what they preach. Their rights are protected by the Charter to the same degree as LGBTQ rights are. As the court has said on multiple occasions, there is no hierarchy of rights. We must candidly admit that the law societies did not and could not act to prevent the law school’s opening.

Recognizing what is at stake — and also what isn’t at stake — will help us to take stock of the Supreme Court’s decision, whatever it is, with clear eyes and a level head on Friday.

*

Marcus McCann (Millard & Company) and Angela Chaisson (Chaisson Law) are lawyers in private practice. They represented LGBTOUT, a group of LGBTQ university students, as an intervenor before the Supreme Court of Canada in Trinity Western University v Law Society of Upper Canada. 

Photo by Eflon (via Flickr) used under cc license

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