05/07/2015 06:11 EDT | Updated 03/21/2019 16:05 EDT

The Problem Isn't Trinity Western Law School. It's the Legal Guild System

Students who can't go to TWU can still go to another law school. But there are no competing law societies to turn to if the government-authorized body bars your way. It should be the marketplace that determines who practices law and who doesn't.

Karen Selick

Trinity Western University is currently involved in litigation in three provinces (Ontario, British Columbia and Nova Scotia) to determine whether or not graduates from its proposed law school will be permitted to practice law.

The issue has been highly controversial. Some lawyers oppose TWU for allegedly discriminating against gay students; others fear that TWU grads will some day discriminate against gay clients.

If I were starting my law career today instead of many years ago, I would be one of the students who couldn't attend TWU's proposed law school.

For starters, TWU's community covenant contains a "firm commitment to the person and work of Jesus Christ as declared in the Bible." As an atheist, I couldn't sign that.

But more importantly to the current controversy, I couldn't agree to the clause that says students should "reserve sexual expressions of intimacy for marriage." I live common-law with a man. We're heterosexual, but we believe that neither the state nor the church has any business licencing anyone's sex lives.

From TWU's perspective, I would be an even worse misfit for its community than a gay or lesbian in a same-sex marriage. They, at least, have conceded the importance of being married in order to be sexually intimate.

Despite all that, I think TWU law graduates who have signed its community covenant should be admitted to the bar under the same criterion as everyone else, namely: do they have sufficient legal knowledge and skill? I'm appalled that provincial law societies think they have a right to keep TWU grads out of their guild for any other reason.

Whether TWU's law school gets accredited or not, there will still be law students who subscribe to strict Christian beliefs. They will still apply for a licence to practice law, but the law society won't be able to identify them because they'll have gone to some other law school. So unless the law society intends to establish a screening program for ideological conformity to non-Christian beliefs, its rejection of TWU will be ineffectual at screening out devout Christians who might someday demonstrate prejudice against gays.

But we can't forbid people from entering certain occupations because of our presumptions about their religious beliefs. I know it's unfashionable to make this type of comparison, but that's exactly what the Nazis did. Germany's 1933 Law on the Admission to the Legal Profession prevented Jewish law students from being called to the bar. The 1933 Career Civil Service Act forbade Jews from being employed as judges. A few years later, older Jewish lawyers were stripped of their pre-1933 licences.

It is just as unacceptable to cordon off Canada's legal profession to TWU-style Christians as it was to cordon off Germany's legal profession to Jews.

TWU's opponents accuse it in turn of trying to hinder entry into the profession by gays. However, there's a big difference between a law school that has many competitors, and a professional governing body endowed with monopoly power by the state. Students who can't go to TWU can still go to another law school. But there are no competing law societies to turn to if the government-authorized body bars your way.

And that is indeed the real root of the problem: the very existence of the guild system. Oops, we don't call it that today; we call it "self-regulation of the legal profession in the public interest." Regardless of what you call it, it's still a coercive monopoly that uses state power to prevent both buyers and sellers of legal services from engaging in freedom of contract.

It should be the marketplace that determines who practices law and who doesn't. Some individuals could learn law through self-study or apprenticeship and make better lawyers than others who attended a famous school. Clients shopping for a lawyer might deliberately seek out TWU grads, knowing that university's reputation for excellence. Others might deliberately avoid TWU grads to avoid incompatible world-views. If sufficient numbers reject TWU-trained lawyers, then market forces will discourage future lawyers from attending TWU. It may fold, or carry on serving a small niche market. But it can't prevent gays from either practicing law or hiring lawyers.

It is the marketplace that truly accommodates minorities of every size and description. State regulation forces everyone to march in lockstep, creating large blocs of dissatisfied citizens who lack options.


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