What if there was only one law school in BC?
This question, raised by the justices of the BC Court of Appeal, underlies the importance of the case over this past week.
From Wednesday through Friday, I sat through the hearings in the case of Trinity Western University vs the Law Society of BC. The BC Humanist Association – alongside the Canadian Secular Alliance – was one of the interveners in the case. I live tweeted much of the case from @bchumanist and you can see those tweets here. Also check out #TWUlaw and the @TWULawSchool account for more reactions.
The following is a rough transcript of the report I posted on our podcast on Friday afternoon. You can listen to that here.
These are of course, just my impressions and opinions. I’m not a lawyer and as the BCHA intervened in this case, I’m clearly not impartial either.
So let’s dig into the background first.
This case centred on whether the Law Society of BC has the authority to refuse to approve a proposed law school at Trinity Western University. TWU is an evangelical private school which requires all of its students to sign a Community Covenant. That documents requires students to abstain – both on and off of campus – from sexual relations outside of a heterosexual marriage. This provision effectively bars LGBTQ students from accessing these potential law seats. The covenant also requires students to uphold the sanctity of life, which discriminates against women’s reproductive freedoms.
The Law Society had initially approved the law school but it reversed that decision following a referendum of its members, who are practicing lawyers across the province. TWU challenged that rejection at the BC Supreme Court and won on administrative grounds in December. Essentially, the Court ruled that the Law Society messed up how it made the decision but the ruling didn’t really go into the human rights issues at play.
Meanwhile, the law societies in Ontario and Nova Scotia also rejected the law school and those decisions are simultaneously being challenged in appeal courts in those provinces. All of these cases are expected to come together at the Supreme Court of Canada at the end of this year or early next.
The Law Society appealed the BC Supreme Court’s decision and those hearings began this week.
On Wednesday June first, we heard from lawyers representing the Law Society and groups intervening on its behalf, including us. On Thursday, TWU and their interveners spoke and finally Friday the Law Society gave a short reply to some of TWU’s arguments.
The Law Society’s lawyer Peter Gall made a number of arguments. First, he had to deal with the administrative questions. He argued that by the letter of the law the bencher’s – that is the directors of the Law Society – had the authority to allow the Society’s membership to vote on the issue. Of course the result had to meet the Society’s legal obligations and couldn’t unreasonably infringe on the Charter rights of any group but he’ll get to that.
As the Law Society had initially approved the school and then reversed that, Gall was left in the tough spot of having to argue that both positions were ones on which reasonable legal experts could come to different positions. Essentially he had to argue that the equality rights of LGBTQ law students were pretty close in the balancing with TWU’s claimed right to religious freedom. In the end he argued that it was up to the Courts to settle the Charter issues at play.
He then turned to some of the equality arguments for why the Law Society should be able to reject TWU on the basis of its Community Covenant. He highlighted how TWU could achieve all the goals it has publicly said it has for its law school without mandating a Covenant that discriminates against classes of people. This is important because it puts into question the purpose of the Covenant. TWU maintains it’s a profession of its community’s traditional religious views on marriage but it could still make those views known without policing the conduct of its student body.
Gall also highlighted the harms that could come from approving TWU’s law school. Very tangibly, LGBTQ students and feminists would be excluded from those additional seats. There would also be a psychological harm to those communities by having the state be seen to endorse an exclusionary law school. And finally, if the Law Society is seen to be discriminatory it could erode the public’s confidence in the broader justice system.
Our lawyer, Tim Dickson, was the first of the interveners to speak. He presented our arguments on where the limits to religious freedom should be drawn. Basically our arguments came down to two points.
First, if the Law Society approved any law school with a mandatory religious code of conduct, the state would be in effect endorsing a form of religious coercion. TWU has said that it is open to students of all faiths and none. It is not just a community of Evangelical Christians – there are Muslims, Jews, atheists and non-evangelical Christians there. By having a mandatory code of conduct, the school is in effect coercing those students into living by Christian standards. This violates those students’ rights and freedoms. In essence, no one’s beliefs can compel another person’s.
Second, we argued that teaching secular law is not a religious activity and therefore TWU can’t claim the religious freedom protections of the Charter. There are clear religious activities like going to church or prayer – but having a law school that’s open to, and actively invites, the general public to attend is not one of them.
Next, the LGBTQ Coalition’s lawyer gave a comprehensive review of the history of homophobia and bigotry their community has suffered and the “sea change” in attitudes and law that has happened since 2001. That was when the Supreme Court of Canada looked at whether the BC College of Teachers would have to recognize TWU’s teacher’s program. It was a powerful presentation and a poignant reminder of how far our society has come in such a short time. They then re-iterated the harms of approving such a school would have on the LGBTQ community – particularly as the Covenant references bible passages that describe homosexuality as “vile.”
West Coast LEAF then discussed the impact that approving the law school would have on women. They gave evidence that the law society was aware of feminist concerns and said that a discriminatory law school would widen the gap in accessing the bar.
The Advocate’s Society concurred with our arguments and looked again at the effect of approving the law school. Specifically, they highlighted how TWU doesn’t just want to open a general law school but it wants to have a special focus on charity law and law for smaller communities. As those are already niche markets, approving the law school would have an even greater impact on potential LGBTQ and feminist law students considering that path.
TWU’s lawer Kevin Boonstra began his arguments on the second day with the assertion that 11-12% of Canadians are evangelicals – something that is also stated in their factum and on the Evangelical Fellowship of Canada’s website – but it’s a statistic that I can’t actually track a source down for. Please send me one if you have it.
Boonstra then discussed how a number of Christian universities and organizations in the US have similar codes of conduct and have been recognized by their law societies. He submitted affidavits from LGBTQ students who have attended TWU and he argued that the additional 60 law school seats opened at TWU wouldn’t take away from the total number of seats available. Instead he suggested it would actually free up some pressure on the admissions to secular law schools like UBC, UVic or TRU.
He also argued that the Law Society is limited by the law to only look at the academic qualifications of law students. However, one judge pointed out that the law governing the Law Society tells it to look at academic qualifications of students from approved law schools, and he suggested the Society has the authority to approve or not approve law schools themselves and didn’t necessarily have to treat them equally.
Nevertheless, Boonstra continued to argue that the Law Society should be held to its initial decision to approve the school and the referendum on the issue should be deemed invalid. At the same time, TWU, like the Law Society, asked the court to decide on the human rights issues.
One of the judges asked why the Court should have to consider balancing rights if TWU thinks the decision itself was done improperly. Boonstra replied that he wanted it to be clear to the Law Society what the “correct” balance was should it choose to revisit the question.
He then discussed why he thought the 2001 BC College of Teachers case still applies, arguing that some of the arguments being raised here were dealt with then.
Boonstra also argued that TWU was looking to only open a small law school – 60 seats – and this is when we got to one of the judges asking Boonstra whether the Law Society would be in its rights to consider the discriminatory impact of the Community Covenant if TWU were the only law school in the province. I don’t think Boonstra had a strong answer here. He mostly fell back on saying the issue was only theoretical and the facts are that TWU only wants to open a small law school. Another judge posed later a hypothetical situation where UBC brought in an anti-LGBTQ code, and again Boonstra struggled saying UBC wouldn’t do that and arguing that “small numbers” involved negated the broader principle.
But this is where I think we have another strong argument. If the Law Society can consider the legitimacy of a discriminatory code of conduct at a large university or if there was only one university, then a smaller university shouldn’t be exempt. The scale of the school involved doesn’t affect the principle at hand. While TWU’s law school may be small, its approval could easily be just the first step to more and more universities opening with draconian policies. Then we’ve gone from talking about a one or two percent of law seats to a significant impediment to a sizable portion of the LGBTQ community.
In the few days I was at this trial, I met gay Christians who opposed the Covenant. This included a person who grew up near TWU and would have considered it for school. Yet the Covenant closed that door for her. The effect is already real for some people.
But let’s come back to the courtroom. Boonstra also argued that the Charter doesn’t apply to TWU as a private body – in fact it doesn’t even fully apply to public universities. He also argued that the Law Society has a duty to treat all graduates equally when they arrive at the door for approval. He – and some of TWU’s interveners – also actually made the argument that allowing the Law Society to deny the TWU law school could lead to the Law Society scrutinizing the entire educational background of potential lawyers. For example, a student who attended a Christian elementary or high school could be barred, expelling anyone who doesn’t conform to the majoritarian viewpoint (as one of the lawyers put it).
He also argued that Canadian law grants a lot of importance to freedom of religion and once a belief has been determined to be sincere, then it's up to that religious community to decide its validity and articulation. Similarly, he pointed out that the minority opinion in a case about teaching a world religions class in a Catholic school would have recognized private organization’s full religious rights. Although I personally worry that such a precedent could lead to a Canadian Hobby Lobby type decision, allowing companies to claim religious freedom to run over the rights of their employees and customers.
Finally, TWU and some of its interveners worried about whether a decision allowing the Law Society to reject its law school would set a precedent that could put TWU’s other programs in jeopardy or threaten other religious organizations. Specifically, TWU’s teacher’s program could be challenged again, as well as its psychology and nursing programs.
I’ll run very quickly through some of the arguments from the various interveners for TWU. In total they had seven different interveners to the Law Society’s four. The judges asked the various interveners to keep their arguments brief and to not repeat one another, which they were good at respecting.
The Catholics talked about what their interpretation of secularism and pluralism is.
The Christian Legal Fellowship was concerned with the rights of Christian students who wanted to go to TWU and that rejecting the school would lead to the Law Society rejecting any Christian applicants.
The Evangelical Fellowship of Canada equated what they see as an attempt to ban the Community Covenant as equivalent to the government banning the Bible. They stated that removing the Covenant would have the effect of preventing them from practicing evangelism, to which one judge pointed out that non-evangelicals are able to attend TWU without destroying the evangelical community. The subtext was potentially the implication that TWU is more afraid of openly gay students attending its law school than non-Christians.
The Seventh Day Adventists talked about the 18th and 19th century discrimination against religious minorities in Canada. They also argued that if TWU was forced to allow atheists it would fundamentally change its nature – apparently he was unaware of the fact TWU says it has non-religious students on campus already.
The Justice Centre for Constitutional Freedom described itself as “non-partisan and non-religious” and the only secular intervener on TWU’s side. Their lawyer spoke to the importance of freedom of association. At one point a judge interjected to say that he thought the JCCF was “overstating its case.” I’ve found that JCCF tends to take a very libertarian approach to interpreting the Charter.
ARPA’s lawyer suggested he’d be okay with West Coast Leaf opening a women’s-only law school and he’d even fight to defend it. He also ended his arguments by talking about how for Christians “Jesus Christ is our first identity” and he quoted from the bible.
Finally, the lawyer for the Canadian Council of Christian Charities talked about his concerns of potential problems for other religious groups that could come up if TWU’s law school was rejected. To me it sounded more like fear mongering than legal arguments.
Then we came back for a short session on Friday morning to hear rebuttals from the Law Society. Gall clarified some of his administrative law arguments, basically saying the Court should give deference to the Law Society to make reasonable decisions in whatever way it does and then questions about the balancing of rights should be decided by the courts.
He then went on to challenge TWU and its interveners arguments that the extra law school seats wouldn’t have an impact because there would still be the same number available at existing secular law schools. He said this was basically a version of the “thoroughly discredited separate but equal argument.” He gave the example of a group arguing for a male or Caucasian-only law school and that the Law Society would have a clear interest in rejecting such a school – it wouldn’t even be a question for debate.
He even went as far as to draw a comparison with Rosa Parks who was offered a seat at the back of the bus when blacks were banned from sitting at the front. The judges pushed back on this pointing out that buses are a public service and I think Gall missed a stronger comparison, say with something like taxi licensing. If a private cab company refused to allow passengers of a certain race or gender, a municipality would be entirely within its rights to refuse to grant that company taxi licenses, arguably even if the company claimed religious freedom.
At this point Gall brought up the BC Human Rights Code. He said that “a reasonable argument could be made that the Human Rights Code should apply” to prevent such a Community Covenant but he wouldn’t go into that argument there.
Finally, he dismissed the idea that this decision would set a precedent that would threaten the freedom of other religious organizations.
And with that the hearings ended and the judges left to start their deliberations. We probably won’t have a ruling for at least a couple months and potentially longer. On Monday, the Ontario Court of Appeal begins its hearings, where many of the same interveners will be making many of the same arguments.
So for now, we’ll just have to wait and see how this all plays out in these three courts and then take the fight to the Supreme Court of Canada.
In the meantime, you can continue to follow our other campaigns and work to build a secular community based on reason and compassion. Please also consider making a donation to support our work. While we have generous pro-bono support, we will be on the hook for some of the disbursement costs, as well as my time and our administrative costs to do things like getting this report to you through our website and podcast.