What next for TWU law school?

Considering how Canadian courts have become more protective of gay rights in recent years, I’m really not surprised by this decision:

Societies governing the legal profession have the right to deny accreditation to a proposed law school at a Christian university in British Columbia, the Supreme Court of Canada has ruled.

In a pair of keenly anticipated decisions Friday, the high court said law societies in Ontario and British Columbia were entitled to ensure equal access to the bar, support diversity and prevent harm to lesbian, gay, bisexual, transgender and queer students.

The cases pitted two significant societal values — freedom of religion and promotion of equality — against one another.

Trinity Western University, a private post-secondary institution in Langley, B.C., was founded on evangelical Christian principles and requires students to adhere to a covenant allowing sexual intimacy only between a married man and woman.


In each case, the Supreme Court ruled 7-2 in favour of the respective law society.

A majority found that the decisions to deny accreditation were reasonable because they appropriately balanced the interference to freedom of religion with the public-interest objectives of the law societies.

In the decision concerning Ontario, five Supreme Court justices said the province’s law society interfered only with the university’s ability to operate a law school governed by the mandatory covenant.

“This limitation is of minor significance because a mandatory covenant is not absolutely required to study law in a Christian environment in which people follow certain religious rules of conduct, and attending a Christian law school is preferred, not necessary, for prospective TWU law students.”

The ruling doesn’t say law societies must deny accreditation to TWU, so for now its graduates could still practice in the six provinces where law societies have approved it.  Another option could be for the school to amend its covenant to say students pledge to abstain from premarital sex, full stop, without bringing a “man and woman” into it.

Considering the implications for Trinity Westerns’ other programs, including education and nursing, the school will likely have to concede defeat and make some changes, or shut itself down entirely.  I think a Christian institution could provide a useful counterweight to Canada’s other, decidedly left-leaning law schools, so I hope they do what they can to keep operating and provide an alternative – which anyone can attend.

A quick and easy solution to the Trinity Western Law School controversy

This has been a pretty awful week for Canada’s newest would-be law school:

Nova Scotia’s law society has voted to approve accreditation of Trinity Western University law school, but only if it drops the controversial policy prohibiting same-sex intimacy that some say is discriminatory.

Ten members of the council of Nova Scotia Barrister’s Society voted to conditionally accredit, while nine voted against allowing graduates from the faith-based Trinity Western University to practise in the province.

The decision follows that by Ontario’s law society to refuse to accredit the new law school.


The law society’s ruling could create turmoil on a national scale. Some lawyers have voiced concerns that having some provincial law societies deny accreditation when other provincial societies have granted it could threaten a new national mobility regime that allows lawyers licensed in one province to practise across Canada. The system took more than a decade to establish, and leaders of the Law Society of Alberta have warned that a decision such as the LSUC’s could pose a “direct threat” to mobility agreements.

Anger over Trinity Western’s plans has focused on the university’s community covenant, a document requiring all staff and students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Detractors say allowing Trinity Western to train only those law students who agree to abide by the covenant is discriminatory.

TWU will probably challenge these decisions in court, but it’s not clear whether the school will be successful.   (Paul Daly of Administrative Law Matters thinks a decision either way by the Law Society of Upper Canada would be upheld by the courts.)

As I wrote a few months ago, I’m downright enthusiastic about Canada getting a law school with a distinctly Christian, conservative perspective.  But I just can’t get past a “covenant” that clearly discriminates against prospective students who are gay.  I think the Nova Scotia decision, which puts the onus on TWU to change or eliminate the covenant, is the right way to approach this issue.

Trinity Western could resolve this dispute with just a small wording change:

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

  • sexual intimacy that violates the sacredness of marriage between a man and a woman

There may be some who bristle at the idea of a faith-based university being recognized at all (which would be bad news for St. FX, St. Mary’s, Mount Saint Vincent…), while others say they oppose any kind of guidelines governing students’ behavior at all.  (The Globe and Mail quotes one TWU opponent as saying “‎I cannot vote to accredit a law school which seeks to control students in their bedrooms.”  Taken to its logical extreme, that would prohibit university policies governing sexual consent, a fact of life at almost every school.)

But simply excising these six words from the covenant would almost certainly take care of the school’s accreditation problem, while allowing it to retain its uniquely Christian character.  If they don’t budge, that will say a lot about their priorities.

And I’m afraid this is just the beginning for Trinity Western.  As more people adopt the view that discrimination against gays and lesbians is akin to racial and sexual discrimination, other professions and even university athletic administrations will do what law societies have started.

The case for – and against – Trinity Western law school

The latest issue of Maclean’s has an interesting piece about the controversy surrounding Trinity Western University’s proposed law school, the pledge its students must sign, and how it may to an “American-style” conservative legal movement in Canada:

The controversy around Trinity Western University’s application to create Canada’s first private law school based on Christian foundations has centred on a covenant the school requires of its students. The school, located in Langley, B.C., mandates that its students and faculty pledge to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

While the school does not explicitly exclude gay students, the pledge has sparked accusations of discrimination. The Federation of Law Societies and B.C.’s Ministry of Higher Education has approved accreditation for the school. But provincial law societies, which set the standards for admission to the profession, are under pressure from critics to reject the school’s potential graduates.

Beyond the covenant controversy, however, the application for Canada’s first Christian law school raises another question: What role would a Christian law school play in broader Canadian society in which controversial social issues are often decided in the courts? In the U.S., a new wave of Christian law schools have become more than places to train lawyers—they are players in a growing conservative legal movement that is shaping American law and politics.


The movement has had an impact on secular education as well. Last year, Stanford University opened the first legal clinic in the U.S. focused on religious liberty issues, helped by large donations from conservative foundations. “The 47 per cent of the people who voted for Mitt Romney deserve a curriculum as well,” Lawrence C. Marshall, the associate dean for clinical legal education told the New York Times at the time. “We ought to be committed to ideological diversity,” he said.

In Canada, by contrast, law schools have been publicly funded and secular. Conservative legal scholars say this has bred homogeneity and conformism in thinking. “I think there is a lack of diversity in the Canadian legal academy and Canadian legal institutions and that manifests itself in all kinds of ways,” says Bradley Miller, a law professor at the University of Western Ontario. Another result has been conservative and Christian students leaving Canada for American institutions. “They go and tend to stay. We don’t tend to get folks back once they’ve made the leap. It’s a big problem,” says Ian Brodie, research director at the school of public policy at the University of Calgary, former executive director of the Conservative Party of Canada, and a former chief of staff to the prime minister.

Canadian expat Ilya Shapiro, a senior fellow in constitutional studies at Cato Institute, a libertarian think tank in Washington who was involved in the group’s legal challenges to President Barack Obama’s health care reform, agrees. “I see a lot of conservatives and libertarians from Canada here. We joke we are here for ideological exile—or at least we did before the Obama administration,” he says.

He says that the Canadian conservative movement, “could and should develop a network of like-minded students, professors, and thought leaders of various kinds.”

Janet Epp Buckingham, a political science professor at Trinity Western who is a proponent of the law school project, says she has had students leave for U.S. law schools such as Pepperdine University in California, Baylor in Texas, and Indiana’s Notre Dame in search of faith-based legal education and Christian teachings on legal ethics. “I have had quite a few express to me that there is very little room in the current secular law schools for faith and it’s not considered a serious topic for law school or even an appropriate topic for law school,” she said.

(Via Amy Sakalauskas*)  I suspect at least some of the opposition to TWU Law arises from a fear that it may train radical right-wing legal gunslingers who will storm the courts and carry out Stephen Harper’s Hidden AgendaTM to turn Canada into a fascist police state.

The thing is, if Trinity Western is planning to create a distinctly conservative, Christian faculty of law, I actually think that’s an argument in its favor.  In Canada we tend to think our courts and legal system aren’t as nakedly politicized as those of our neighbour to the south, and it’s certainly correct that our system isn’t as nakedly partisan.  It’s not as easy to tell how one of our Supreme Court Justices will rule on a hot-button issue, compared to, say, Scalia or Sotomayor.

That said, anyone who thinks politics (as opposed to partisanship) don’t already play a role in our system is fooling him- or herself.  Show me a Justice – or a lawyer – who approaches a case without some ideological or philosophical assumption about how it should be handled, and I’ll show you a robot.

That extends to law school education in Canada, as well.  At most schools you might have a token right-winger teaching business law, but more likely you’ll have something like the mandatory week-long feminist perspectives seminar I had to attend at UNB.  Not to say there’s anything wrong with having this as part of your curriculum (personally, I found it much more interesting than I had expected), but if a law school will teach its students from that perspective, TWU should be allowed to teach from its own perspective, and prospective students should have a choice.  Let a hundred flowers bloom, as Mao said.  (Mao didn’t actually believe this, but that’s another story.)

So, in an age where a mildly satirical video clip of President Obama can be considered a “microaggression” requiring sensitivity training, I’m all in favor of TWU having a conservative Christian law school – to a point.  Unfortunately, I just can’t get around these words:

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:


sexual intimacy that violates the sacredness of marriage between a man and a woman

This is where the school is running into trouble, particularly here in Nova Scotia.  And while I have no doubt the Trinity Western administration are sincere in their beliefs, the message is inescapable: sex is for married men and women only.  If you’re gay you can come to this school, but only if you don’t actually act gay.  (A pledge that students abstain from premarital sex, full stop, would be less problematic, since that no longer automatically excludes Canadians in same-sex relationships.)

True, no one is being forced to attend TWU.  But we’re at a turning point in the debate over whether religious rights should trump the rights of gays and lesbians – witness Arizona governor Jan Brewer’s recent decision to veto a proposed law that allegedly would have allowed business owners to discriminate against homosexual patrons.  It seems like discrimination against same-sex relationships is quickly going the way of discrimination against interracial relationships – which were, it turns out, once discouraged at other Christian universities, most notably Bob Jones University in South Carolina.

Does that mean Trinity Western’s law school shouldn’t be accredited? To be honest, I’m torn about the issue.   I’m in favor of giving prospective students greater choice of where and how they want to study the law, and I fear setting a precedent that could lead to people with socially conservative views, regardless of where they earned their law degree, being kept out of the profession.  Plus, the Supreme Court of Canada has ruled in favor of TWU’s education program, though the court is certainly free to revisit that 2001 ruling.

But until the school ends its requirement that law students sign this pledge, a TWU Law degree will have a big asterisk next to it.

*UPDATE: Sakalauskas responds, “I tweeted the article, but don’t share the concern. I have written about my own, completely separate ones” – as set forth in this National Post piece arguing against accreditation.