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Don't Frame TWU's Community Covenant Issue as a Freedom of Religion Issue

09/28/2014 08:22 EDT | Updated 11/28/2014 05:59 EST

Trinity Western University faces yet another hurdle in creating its proposed law school. The Law Society of British Columbia has asked its members to vote on the issue whether it should become an approved faculty of law in British Columbia.

The controversy focuses on the provision in the evangelical Christian university's Community Covenant that requires all students, administrators and faculty to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." Law societies in Ontario and Nova Scotia have voted to deny students from TWU's proposed law school membership in their law societies on the basis that the Community Covenant is inherently discriminatory against the LGBTQ community.

TWU believes that its Community Covenant is protected by the freedom of religion guarantee in the Charter of Rights and Freedoms. TWU has launched court cases in Ontario, Nova Scotia and British Columbia to respond to threats against the freedom of religion.

I am a friend of TWU and am concerned that this controversy has completely overshadowed all of the academic accomplishments of its more than 50 years existence. I am possibly the only member of the BC Law Society who has personally known every President of TWU. As a boy, I even knew David Enarson, the guiding light appointed in 1957 to create a post-secondary accredited Christian academy that resulted in Trinity Western being formed in 1962.

Being a charity lawyer, my conditioned "muscle memory" response to any legal question is to begin by examining the legal objects of my charity client. TWU is governed by an Act of the BC legislature which states: "The objects of the University shall be to provide for young people of any race, colour, or creed, university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian".

I do not think that the Community Covenant issue should be framed as a constitutional law interpretation of freedom of religion under the Charter. TWU's statutory object is to provide a university education to persons of any creed. It is the BC legislature which has enacted the statute which uses the mandatory "shall" when articulating the requirement that TWU's education be provided to persons of "any creed". It went on to expressly state that TWU's Bylaws must not include anything "that is in conflict with this Act".

TWU claims that its Community Covenant reflects its interpretation of Christian theology and Biblical teaching. It frames its legal defence against criticism by invoking a claim to freedom of religion as a Christian institution. My intuitive reaction is that TWU is in violation of its obligation to educate students of "any creed" when its Community Covenant creates an effective barrier to entry based upon adherence to a single creed.

The second "muscle memory" inquiry of a charity lawyer is whether his client's activities are ultra vires the charity's legal objects. The education mandate is expressly stated to be "in the arts and sciences". We all know that law is not a science. My intuitive reaction is that a law school is not covered by "the arts". Nothing in the TWU Act gives the university the powers of a natural person.

The "Faculty of Arts and Science" at the University of Toronto does not include law. TWU seems to concede this distinction because its own academic website describes it as "a Christian liberal arts, sciences, and professional studies university". It is not clear to me that obtaining consent under the Degree Authorization Act extends the legal capacity of the university. If they are spending money on a project that is ultra vires the powers of the university, the personal legal liability of directors is significant.

TWU has educated many capable and wonderful students. It is possible that its Community Covenant is an integral reason for its success in the evangelical community. However, both TWU and the religious sector would benefit if it would refocus the energies and talents of the academy back on its high quality education in the arts and sciences and avoid pursuing a highly divisive debate on its Community Charter.

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