The issue before the Law Society of B.C. in the Trinity Western University referendum was essentially one of minority rights and protection from discrimination. Presumably, the 5,951 lawyers who supported the resolution to “disapprove” TWU were motivated by a sincere desire to prevent discrimination. Ironically, the society’s collective decision represents untrammelled bigotry against a small religious minority.
The Christian university in Langley plans to open a law school in 2016, but has been criticized for its “community covenant” that states, among other things, that sexual relations are to be confined within the bounds of a marriage between a man and a woman. Critics have said this discriminates against those in any other kind of relationship.
The Federation of Law Societies approved TWU’s program in 2013, but left it up to provincial societies to decide whether they would recognize degrees from the school. The Law Society of Upper Canada in Ontario has voted against approval of the law school, and the Nova Scotia Barristers’ Society approved the school on the condition that the school change the covenant or allow law students to opt out.
The Law Society of B.C. initially approved TWU’s law program, but a backlash from B.C. lawyers resulted in a referendum, the results of which were announced last week, with 74 per cent opposed to approval of the law school. The society’s benchers met Friday and voted to abide by the referendum.
The Trinity Western covenant does not specifically address the issue of sexual orientation, but simply calls upon all students to voluntarily abstain from sexual activity outside the Christian understanding of marriage.
The right to express and uphold the Christian understanding of marriage is a “fundamental freedom” enshrined in Section 2(a) of the Charter of Rights and supported by Section 3.1 of the Civil Marriage Act.
Extramarital intimacy is just one of many activities that the community covenant asks students to avoid. Trinity Western students are also expected to abstain from the viewing of pornography, the use of illicit drugs, the excessive consumption of alcohol or tobacco; any form of gossip, slander, vulgar or obscene language; and perhaps most important, prejudice against minority groups.
When we consider all the activities restricted by the covenant, it becomes clear that only a small minority of British Columbians would ever sign such a pledge. It is this small minority that will suffer the effects of the law society’s discriminatory decision.
A decision to reject Trinity Western graduates does not make law school any more accessible to those who do not wish to sign the covenant. Whether or not Trinity Western is certified, the vast majority of British Columbians who are not inclined to sign the covenant will continue to have access to the University of British Columbia, the University of Victoria and Thompson Rivers University.
Surely, discrimination against one group with no corresponding benefit to any other group is contrary to the law society’s statutory mandate of “preserving and protecting the rights and freedoms of all persons.” Sadly, it appears that 74 per cent of B.C. lawyers have simply missed the irony.
No doubt, if the majority of law society members had voted to exclude homosexual lawyers from practising in B.C., the courts would be legally and morally obliged to overturn the will of the majority. One can only hope that the courts will act with such courage in overturning the law society’s decision, as they did when the B.C. Teachers’ Federation attempted to prohibit Trinity Western graduates from teaching.
In determining whether prohibiting Trinity Western graduates from the practice of law is consistent with the law society’s mandate, the courts will ultimately need to consider not only what Trinity Western students are restricted from doing, but also what they are called upon to do. The community covenant states that Trinity Western students are to “pursue truth and excellence with grace and diligence, treat people and ideas with charity and respect, think critically and constructively about complex issues, and willingly respond to the world’s most profound needs and greatest opportunities.”
By basing its community on these principles, TWU aims to cultivate what it calls “service-oriented citizenship.”
Service-oriented citizenship is exactly what the legal profession needs, and what the law society should promote. In a province where disadvantaged individuals are struggling to secure legal representation, it is contrary to the law society’s public-interest mandate to discriminate against the very people who are pledging to help.
Jeremy Maddock is a law student at the University of Victoria.
