With Paul Jonathan Saguil
John Carpay's condemnation of the Ontario Superior Court alleges that "half-truths" have been relied on to scuttle Trinity Western University's (TWU) quest to establish a law school.
Ironically, Mr. Carpay's own analysis is built upon factual and legal mischaracterizations. These are designed to stoke suspicions of a nonexistent anti-Christian bias among legal institutions and to undermine the crucial public policy considerations invoked by the Law Society of Upper Canada in denying TWU's accreditation.
Mr. Carpay contends that the court's reasons interfere with the membership requirements or service objectives of voluntary associations, such as sports leagues or charities. This is false and the comparison is absurd. The dispute surrounding TWU is about the public interest obligations of law societies to promote equal access to the profession, not about meddling with university policies or religious doctrines (regardless of how repugnant we find them).
While TWU may claim to be a voluntary consortium or club, the legal profession cannot: its institutional role in society positions it uniquely among regulated professions due to the necessity for open access to law. Law schools, as gatekeepers to the profession, must be open to the public, and if TWU wishes to open a law school with public sanction, then it must make it accessible to everyone who applies, based on merit. Law societies bear long, poignant histories of excluding certain groups, and law school admissions are presently more competitive than ever. Denying access to a pathway to law for a group that continues to experience barriers accessing justice and securing upward mobility within the profession would be regressive (in this case, by imposing a "queer quota" on the supply of lawyers). Accrediting TWU would be a step in the wrong direction for improving access to justice or public confidence in the openness of the legal profession.
The legal issue before the court has never been about denying something from a faith community like TWU or dictating a belief structure to its religious adherents. As the court decision elucidates, the economic viability of a law school is not a religious freedom argument. TWU conflates the narrow matter of law society accreditation with the broader issue of the fate of their law school. Plainly stated: no one involved in these court proceedings has ever said that TWU cannot have a law school. The court is clear that even if the law society never accredits the school's program, TWU may open for business, and individual applicants are not "banned" from seeking a license to practice law, as some TWU supporters have pulpiteered.
That said, the would-be school finds its future in a tailspin of its own design. The B.C. government has revoked its approval of the school's law degrees because TWU has no law society accreditation in that province, and the school's substantive approval by law societies may not be as final as Mr. Carpay claims either. While the Federation of Law Societies of Canada recommended preliminary approval of the TWU program, it is unclear whether TWU has addressed the conditions of this approval, many of which target the school's Community Covenant Agreement and the university's teaching of legal ethics, professionalism, and public law in accordance with the requirement for new law school programs. Yet, some provincial law societies adopted the FLSC's recommendation outright. Each law society has had to decide for itself what was in the public interest in accordance with their respective obligations.
The upshot of all this is that TWU presently has no authorization to issue law degrees, and has either nonexistent or questionable law society accreditations across the country. None of these outcomes is an assault on faith. They are simply the practical result of TWU's insistence on maintaining a discriminatory policy which has no rational connection to evaluating the merits of law school applicants.
Indeed, Mr. Carpay's claim that the court has set a precedent for imposing outside, secular views on a faith community is strikingly hypocritical considering the disproportionate impact of TWU policies on LGBTQ people. Freedom of religious belief does not entitle the believer to infringe upon the liberties of others (in this case, equal access to a state-created licensing regime) or to carry on their affairs in a vacuum free of their incarnation of "sinner." In practicality, a private institution must adapt its policies and practices if it wants to be accredited by a body operating in the public interest and that must uphold Canadian law and public policy.
As the unanimous court observed, TWU's mandatory pledge forces LGBTQ people to "disavow not only their beliefs but ... their very identity." The Community Covenant Agreement requires students to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The clause demeans an intrinsic element of LGBTQ identities instead of LGBTQ individuals directly -- a form of discrimination admonished by the Supreme Court as recently as 2013.
The Covenant also requires TWU community members to enforce its terms against one another. Its breach carries disciplinary sanctions, including expulsion. The policy's discriminatory effect is not only "self-evident" (as the court reasoned), but it perpetuates an outmoded culture of fear, shame, and indignity that has no place in legal education, or under a law society's rubber-stamp.
In sum, the court has affirmed many of the concerns raised by the LGBTQ community over the past three years. This is clearly distressing for Mr. Carpay and TWU, as it gives compelling judicial voice to the sea change in LGBTQ rights that has taken place over the past decade, and distinguishes the present debacle from the outdated case law relied on by TWU and the misguided decision in Nova Scotia earlier this year.
We are optimistic that these conclusions will be upheld in the subsequent decisions of Canadian courts. We are also committed to presenting an accurate depiction of the facts and law at stake on this important equality issue.
Mr. Judson serves on the board of Out On Bay Street. Mr. Saguil is co-counsel to Out On Bay Street.
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