Back To Law Matters | Summer 2015

A Personal Objection to Trinity Western University

Introduction

The Nova Scotia Barristers’ Society is to be congratulated for holding this public forum on whether to accredit Trinity Western University if it comes forward with a proposal for a law school. While many other law societies have decided to dodge this issue, or abdicate their responsibility to regulate in the public interest to the Federation of Law Societies of Canada, the Nova Scotia Barristers’ Society has embraced the democratic norms of participation, transparency and accountability. 

I am particularly thankful that the Society has granted my request to make this submission, even though I am not a member of the Society. I am, however, a member of faculty at the Schulich School of Law, Dalhousie University and have taught our compulsory course on “The Legal Profession and Professional Responsibility” for many years. I also voted in favour of the Faculty Council resolution that opposed the accreditation of Trinity Western1 and signed an extensive, eleven page memorandum crafted by Professor Downie which objects to the accreditation of Trinity Western University on both procedural and substantive grounds.2

I will not repeat the arguments from Faculty Council or Professor Downie’s memorandum as both the Executive and Bar Council have these on record. Rather I will make four more personal, perhaps idiosyncratic, points that explain my objection to the accreditation of Trinity Western and why the Nova Scotia Barristers’ Society would be justified in saying no to Trinity Western while it continues to enforce its Community Covenant. I will structure my remarks under the following headings: the values of good governance; freedom of religion; choice; and responsibility.

The Values of Good Governance

Many of the arguments presented to the Society either in favour or against the accreditation of Trinity Western University are filtered through the prism and discourses of legality/constitutionality. These are important and sophisticated arguments that require careful consideration and they have been thoroughly canvassed and interrogated by many of my colleagues.

However, in my opinion, the Trinity Western University issue is not just a legal question; it is also an ethical question, a question of the values that are to provide the foundation for the good governance of the legal profession.

Over the course of the last decade, in light of the changing nature of the legal profession, intensified public concerns about the role of a self-regulating legal profession, the insights of contemporary regulation theory, and an increasing awareness of the shift in regulatory regimes for lawyers around the world, the Nova Scotia Barristers’ Society has sought to identify and articulate a core set of principles to govern our legal profession.

These values were crystallized in the President’s Report from January 20, 2014, penned by Rene Gallant. In that Report, in its discussion of the Strategic Framework for the Barristers’ Society, and the commitment to the twin desiderta of good governance and access to justice, President Gallant identified seven core values:

  • Excellence
  • Respect
  • Visionary Leadership
  • Fairness
  • Integrity
  • Diversity
  • Accountability

If the Nova Scotia Barristers’ Society truly embraces these values, if “they are to be much more than just words” as President Gallant has stated in his Report, then these values must also inform and guide the process and substance in determining whether to accredit Trinity Western University.

In my opinion, Trinity Western’s Community Covenant priorizes: dogma over excellence; hatred over respect; fear over vision; inequality over fairness; ideology over integrity; homogeneity over diversity; and fundamentalism over accountability.

Such values are the antithesis of good governance and access to justice in a modern, plural democratic society. They impoverish rather than enrich us a profession. They undermine our social contract with Nova Scotian society to regulate in the public interest.

Freedom of Religion

Advocates and apologists for Trinity Western University seek to characterize defenders of the LGBT community as attacking freedom of religion. While this may be true of some secularists, it is not an accurate description of all of those who object to Trinity Western University’s covenant.

As someone who grew up in Belfast, Northern Ireland, in the ‘60s, ‘70s and early ‘80s, I have thought carefully about freedom of religion. As someone who attended a law school in Belfast that actively practiced discrimination against Catholics, as someone who personally experienced discrimination and exclusion in the legal job market in Northern Ireland on the basis of religion, I can confirm that freedom of religion is a very important principle and practice for me. Indeed, I am deeply appreciative of the fact that I have been able to pursue a career in Canada that (for me at least, although perhaps not for others) has been free from religious intolerance. I cherish freedom of religion as a shield against unjustifiable discrimination.

But Trinity Western University is not using freedom of religion as a shield. Rather, Trinity Western University is using freedom of religion as a sword; a sword to discriminate, a sword to exclude, a sword to oppress certain members of the Canadian community, exclusively because of their sexual orientation. Even in its darkest days, the Faculty of Law at Queen’s University of Belfast did not have the temerity to endorse and enforce an anti-Catholic “Community Covenant.” Now, forty years later in Canada, law societies are being asked to endorse a homophobic Covenant, and the FLSC and some societies have said yes. This is not freedom of religion as tolerance, it is freedom of religion as bigotry.

In this regard, it is important not to get too caught up in abstract principles, as excessively legalistic arguments sometimes do. It is important for all members of the Barristers’ Society, indeed I would say all Canadians, to read the actual text of the Community Covenant and the biblical quotations upon which they are based. It is not easy for me to read these biblical verses, but if Bar Council endorses Trinity Western University and its Covenant, this is what you are affirming. I will share just two, and I would ask you to read them aloud not just for yourself but also to your loved ones, your children, your family:

Romans 1:26
For this cause God has given them up to shameful lusts; for their women have exchanged the natural use for that which is against nature.

Romans 1:27
… and in like manner the men also … have burned in their lusts one towards another, men with men doing shameless things and receiving in themselves the fitting recompense of their perversity.

In reading these aloud I no longer think I am in Canada. Once again I am transported back forty years ago to Belfast and the spittled venom of the Reverend Ian Paisley “Homo-sex-ual-ity-is-an-a-bom-min-ation … an-a-bom-min-ation!”3

So despite Trinity Western University’s Covenant with a heavy rhetorical emphasis on “community” “compassion”, “reconciliation”, “hope”, “respect” and “dignity” the opposite is true: Trinity Western University is an organization akin to Ian Paisley’s Free Presbyterian Church of Ulster, committed at its core to institutionalized fanaticism, exclusion and discrimination.

Such an organization is, I submit, incompatible with an institution such as the Nova Scotia Barristers’ Society which has a legislative mandate to protect “the public interest” and which has embedded in Chapter 6-3 of its Code of Conduct a commitment to “Equality, Non-Discrimination and Anti-Harassment.”

Choice

Advocates and apologists for Trinity Western University have also argued that, at bottom, this is simply a question of choice—if a student does not agree with, or want to endorse, the Community Covenant they need not apply to Trinity Western University. Again, the abstraction of “freedom of choice” is wide of the mark.

The harsh reality of today’s educational marketplace is that it is not easy to get into a Canadian law school. Statistically, across the country, it seems that there are approximately eight applications for every one seat available. Each year a significant number of students “choose” to go abroad for their legal education, planning to come back seeking admission via the NCA process. Getting into a Canadian law school is not like picking one chocolate bar rather than a different one because you do not like nuts. Law Schools are, in reality, gatekeepers to the legal profession. Trinity Western University’s Community Covenant is an intentionally crafted barrier targetted at a particular constituency within the Canadian community— it is a form of direct, unvarnished and deliberate discrimination. It is unapologetically designed as an instrument of exclusion.

As someone who has taught contract law for almost three decades, one important theme that I have emphasized year in and year out is that while in theory contracts (and covenants) give effect to freedom of choice, in reality many contracts (and covenants) are premised upon, constitute, and reinforce relationships of inequality. As the legal realists taught us almost a century ago, contracts (or covenants) can be as much a weapon of coercion, as they are an instrument of freedom. It all depends upon the content of the contract and the context of the relationship. When one analyses both the content and context of Trinity Western University’s Community Covenant, it is manifestly as instrument of coercion that undercuts the principle of freedom of choice.

Responsibility

Finally, as a member of Bar Council, you might be tempted to say:

  • I am not LGBT, so why should I get involved?, or
  • This is not really our problem here in Nova Scotia, it is up to the Law Society of British Columbia, or
  • The FLSC has made a decision, so let’s go with that, or
  • We are a small province, so we should wait and see what the big provinces do, or
  • This is all academic because if a Trinity Western graduate is admitted in another province, because of the National Mobility Agreement, they will be entitled to move to Nova Scotia regardless of whether the NSBS has accredited Trinity Western University or not, or
  • This is inevitably going to be litigated, perhaps even to the Supreme Court of Canada, and we should not be squandering our limited financial resources in this manner.

I want to urge you to resist such temptations. It is justifications like these—abdications of personal responsibility like these—or if we are going to invoke the Judaeo-Christian tradition, Pontius Pilate rationalizations like these—that allow for the banality of oppression to grow like a cancer on the body politic. And it is excuses like these that betray the seven core values of Excellence, Respect, Visionary Leadership, Fairness, Integrity, Diversity and Accountability.

To make this point about responsibility slightly differently, I want to come back to my remarks on freedom of religion and share with you—or perhaps simply remind you—of a famous quotation from a German Protestant pastor, a pastor who embraced tolerance and inclusion rather than hatred and exclusion. His name was Martin Niemöller, and this is what he had to say:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

Thank you for your consideration of my submissions.

* This commentary is a slightly revised version of a submission I made to the Nova Scotia Barristers’ Society, 13 February 2014. On 25th April 2014, the Nova Scotia Barristers’ Society approved the accreditation of Trinity Western University but only on the condition that it “amends the Community Covenant for law students in a way that ceases to discriminate.” To no one’s surprise, Trinity Western University appealed this decision to the Supreme Court of Nova Scotia. On January 21st, 2015 Justice Jamie Campbell found in favour of Trinity Western University and struck down the decision of the Nova Scotia Barristers’ Society. In February 2015, the Nova Scotia Barristers’ Society announced that it would appeal Justice Campbell’s decision.

  1. 1 The resolution, unanimously approved on January 10th, 2014, reads as follows:
    • The Faculty Council of the Schulich School of Law regrets that the FLSC’s analysis of “the national requirement” does not bring a human rights lens to its assessment of applicant institutions.
    • The Faculty Council believes it is part of the essence of legal education and the existence of the Bar that human rights and equality be promoted by law schools and law societies.
    • The Faculty Council believes that Trinity Western University’s Community Covenant will necessarily distort the composition of its faculty, demean some members of its student body and send a damaging message to the public about law schools.
    • The Faculty Council believes that subjects involving professional ethics, the Charter, and human rights principles cannot be adequately taught and learned in an institutional environment which systematically excludes or devalues groups of Canadians.
    • The Faculty Council laments the decision of the Approval Committee to provide preliminary approval to Trinity Western University.
    • While recognizing that there are freedom of religion issues at stake here, ultimately we are of the view that these are outweighed by equality concerns regarding sexual orientation and Trinity Western University’s Community Covenant.
    • The Faculty Council encourages the Nova Scotia Barristers’ Society to properly apply a human rights lens and thus refuse to approve LL.B or J.D. degrees issued by Trinity Western University for the purposes of admission to the practice of law in Nova Scotia.
  2.  On file with author.
  3. Paisley campaigns to free Ulster from Sodomy” Irish Times 20 October 1977. Ian Paisley (1926-2014) was an evangelical Protestant leader in Northern Ireland. He rose to prominent in the 1960’s and founded the Free Presbyterian Church of Ulster. He was known for his staunch anti-Catholic and anti-gay positionings. He became the leader of the Democratic Unionist Party and ultimately the Prime Minister of Northern Ireland. Late in his career he had a rapprochement with Catholics.