Trinity Western University will not hire you nor will it admit you as a student unless you sign a covenant promising not to engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman.” In support of this covenant TWU cites the following:
Romans 1:26: For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature
Romans 1:27: In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
In its previous carnation this anti-gay component of TWU’s “community covenant” was found by the Supreme Court of Canada to create the type of unfavourable differential treatment that would discourage gays and lesbians from joining the TWU community. TWU, because it is a private, religiously affiliated university, can engage in this type of discrimination without contravening the Charter of Rights and Freedoms or the BC Human Rights Act.
If any of Canada’s public universities adopted the kinds of policies that TWU imposes they would be in violation of the human rights legislation in their respective provinces.
TWU also requires its faculty to sign a statement of faith stipulating that they “agree with and agree to support at all times the position” that the bible is “the ultimate authority by which every realm of human knowledge and endeavor should be judged.” The Canadian Association of University Teachers has concluded that this statement violates academic freedom.
Now Trinity Western wants to open a law school.
Can lawyers be properly trained in an institution that discriminates against gays and lesbians and that has been found to violate academic freedom? This is the decision currently faced by the Federation of Law of Societies of Canada. The Federation is an oversight body that has been delegated the authority to approve new law degree programs by Canada’s fourteen law societies. The law societies regulate admission to the practice of law in each province. They decide who gets to practice law in Canada. Recently they set academic requirements that law schools must comply with in order to receive the Federation’s approval and thus ensure their graduates eligibility to practice law. TWU, because of its discriminatory policies and its violation of academic freedom, is not institutionally competent to deliver a law program that meets the academic requirements stipulated by the law societies.
The academic requirements for approval of a new law degree require a school to demonstrate that they will provide a learning environment capable of developing critical thinking about ethical issues. TWU’s mandatory statement of faith is inconsistent with this requirement. As I stated in a forthcoming CJWL article which more fully discusses this issue “to teach that ethical issues must be perceived of, assessed with, and resolved by a pre-ordained, prescribed, and singularly authoritative religious doctrine is not to teach the skill of critical thinking about those issues.”
The Federation also requires that a law program develop knowledge and understanding of ethical duties such as a lawyer’s duty not to discriminate. The Federation must seriously consider the impact that TWU’s anti-gay policy will have on its ability to competently deliver a program that develops an appreciation and understanding of foundational legal principles and values such as the concept of non-discrimination. Simply put the Federation should not approve a law degree from an institution with policies that are antithetical to fundamental legal values in Canada.
The issue before the Federation is not whether TWU should be permitted to pursue the study of law in a manner consistent with its religious commitments. Presumably the religious protections enshrined in the Charter establish that it should. The issue for the Federation is whether to approve a law degree program that does not meet the academic requirements that the Federation itself has established as necessary in the public interest.
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Elaine Craig is a Professor at the Schulich School of Law at Dalhousie University. She is also the author of Troubling Tensions: Towards A Legal Theory of Sexual Integrity.