Trinity Western Law School: Let the market open if there is no harm (a law student's perspective

Recently, Trinity Western University in Langley, BC has come under considerable scrutiny, particularly by the legal community. This is as a result of their 2012 proposal to open and credential a law school. The issue that has many in disarray is that each and every student at TWU must sign its community covenant. This covenant forces every student to pledge to adhere to basic Christian principles and values, including abstaining from sexual expression of intimacy until marriage, and that marriage must consist of one man and one woman, implying that any sexual intimacy between those of the same sex is forbidden.

In 2013, the Federation of Law Societies Canada and the BC Minister of Advanced Education decided in favour of the law school, but the latter revoked support in 2014. Then in December 2015, the BC Supreme Court decided to approve the TWU law program, which was later appealed. Further in 2016, Ontario ruled against TWU while the Nova Scotia Court of Appeal and the BC Court of Appeal ruled in its favour.1 The fate of TWU’s law school has suffered tumultuous ups and downs, and its future still appears uncertain.

In Canada, everyone’s right to freedom of conscience and religion is protected under section 2 of the Canadian Charter of Rights and Freedoms. In the case of Trinity, this issue is coupled with the right to freedom of expression. Based on judicial precedents such as R v Keegstra and R v Whatcott, the Court has emphasized that once expression becomes the wilful promotion of hatred towards vulnerable groups, the Charter's limits may be reached and it will no longer protect such activity. The TWU case involves a balancing of the right to religion and expression with the equality rights of the LGBTQ* community, the ultimate goal being an avoidance of harmful discrimination.

People are increasingly accepting of and embracing of diverse communities, including the LGBTQ* community. Many are thus, shocked and disappointed by the recent decisions to countenance the law school. Arguably, this decision has been viewed in an excessively negative light. Instead of viewing it as a shift towards bigotry and intolerance, it should be viewed as a legitimate expression of thought.

We should be rejoicing that we live in Canada, a place where we are freely able to foster such diverse views and our intellectual growth is nurtured within a democratic marketplace of ideas. Although, I would argue that it is likely that the majority of those who practice law in Canada celebrate and embrace sexual diversity (both in identity and preference), it should be recognized that some do not, and they have the right not to endorse these views so long as it does not result in excessive harm or promotion of hate.

Alternatively, if a law school would open that endorsed LGBTQ* values and believed heterosexual relations were immoral, it should likewise be allowed. As long as no excessive harm or hate results, diverse views should be encouraged. Just because a law school is opened that is affiliated with a certain organization that endorses a particular school of thought does not mean that the entire legal community must then share these views. As the judge in the case against the Law Society of BC commented:

“TWU is a relatively small community of like-minded persons bound together by their religious principles. It is not for everyone. For those who do not share TWU’s beliefs, there are many other options.”2

There are three other law schools in British Columbia (Kamloops, Vancouver, Victoria), allowing for many other opportunities for LGBTQ* law students.

Arguments have been made that if Trinity was to be allowed to host a law school, it would undoubtedly violate the commitment to academic freedom that is the foundational bedrock of the university community in Canada. It follows that since TWU is not a learning environment capable of developing an adequate understanding of the ethical duty not to discriminate, they should not be allowed to help train the next generations of lawyers. Ultimately however, this discrimination is likely too remote from the promotion of hatred and, therefore, the concept of a TWU law should be permitted in the interests of fostering a range of perspectives.

Further, TWU is a private university, costing taxpayers nothing.4 Therefore, by having such a law school, people who do not agree with such views remain completely unaffected financially.

As lawyers and law students, we want to be welcoming of diverse thought and opinion to ensure that we have a broad representation of ideas. This allows healthy and passionate debate on controversial topics and prevents a robotic uniformity throughout society. In the British Columbia Court of Appeal’s decision, they concluded that by prohibiting the credentialing of the law school, there would be a breach of the right to religion, whereas the LGBTQ* community would only suffer “minimal impact.”5 I suggest that the balance struck minimizes harm and fosters a diverse marketplace of ideas within the legal community. TWU should be able to open a credentialed law school and freely practice and uphold their religious opinions.

References

Craig, Elaine. “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program” (2013) 25:1 Canadian Journal of Women and the Law (Project MUSE) at page 148-170.

Trinity Western University, Proposed School of Law. Langley: Trinity Western University, 2017. Online: Trinity Western University https://www.twu.ca/academics/schools-faculties/proposed-school-law

Trinity Western University, Proposed Law School: Timeline Langley: Trinity Western University, 2017. Online: Trinity Western University https://www.twu.ca/proposed-school-law/timeline

Trinity Western University v Law Society of British Columbia, 2016 BCCA 423, [2016] B.C.W.L.D. 7422.

Endnotes

1. Trinity Western University, Proposed Law School: Timeline Langley: Trinity Western University, 2017. Online: Trinity Western University https://www.twu.ca/proposed-school-law/timeline

2. Trinity Western University v Law Society of British Columbia, 2016 BCCA 423, [2016] B.C.W.L.D. 7422 at para 178.

3. Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program” (2013) 25:1 Canadian Journal of Women and the Law (Project MUSE) at page 151.

4. Trinity Western University, Proposed School of Law (Langley: Trinity Western University, 2017), online: Trinity Western University https://www.twu.ca/academics/schools-faculties/proposed-school-law

5. Supra note 2 at para 191.