“Intolerant and Illiberal”

The BC Court of Appeal is right to insist on tolerance for an intolerant institution

In a decision issued yesterday, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the government’s permission to grant recognized degrees. The unanimous decision “by the court” is not always straightforward to follow in its administrative law analysis, which is surely at least in part the consequence of the convoluted approach that the Supreme Court has taken to analyzing Charter issues when they arise in administrative decision-making. But on the constitutional issue of balancing the allegedly competing considerations of religious liberty and equality rights, the Court gets it quite right when it concludes that “[t]his case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.” [193] Let me explain.

Trinity Western requires its student to sign a “Covenant” which, among other things, seeks to prevent them from having sex outside marriage, and defines marriage as strictly heterosexual. Whether or not this is intended to discriminate against LGBTQ students, it obviously does discriminate. Although there apparently are some such students at Trinity Western, the Covenant is obviously a greater burden on most of them (except those who do not view celibacy as a burden) than on most heterosexual students (though it’s worth noting that the Covenant does restrict the liberty of such students too, and in a way that would surely be unconstitutional if this restriction were imposed by the state). A great many people, within and outside the legal profession, and within and outside the LGBTQ community, are offended by the Covenant’s existence, and have campaigned for Trinity Western’s proposed law school not to be recognized, preventing its graduates from entering the profession. For some, this seems to be a means of putting pressure on Trinity Western to repent its discriminatory sins. But Trinity Western has made it quite clear that, as befits religious fanatics, they will do no such thing. There will be a Trinity Western Law School with the Covenant, or there will not be one at all. There is no tertium quid.

Trinity Western argues that denial of accreditation to its law school by the BC Law Society infringes its religious liberty. The Law Society claims that it has balanced religious liberty and the equality rights of the LGBTQ people, which are infringed both by being put to the choice of either refraining from going to Trinity Western or going there and living in the closet for the duration of their studies. Moreover, the Law Society says that it should not put itself in the position of effectively endorsing the Covenant by accrediting the law school despite the Covenant’s existence. As the Court’s judgment shows, the Law Society did no such thing. Although its benchers were aware of these various concerns, they punted on the decision whether to accredit Trinity Western or not, and let the Society’s members effectively make that decision through a referendum, authorizing it through a resolution that made no mention of the religious liberty side of the ledger.

How should these concerns be balanced, then? More to the point, are these concerns even real? Trinity Western’s clearly are. Its ability to exist as a religious institution is denied when the government (or its delegate the Law Society) denies it an accreditation that would otherwise be available to it on the basis of its religious beliefs. Sure, Trinity Western doesn’t have to have a law school. But if the only reason the state will not let it have one is its religious belief, then the state is in default of its duty of religious neutrality, which applies as much to prevent the state from singling out a set of beliefs for a particular burden as to prevent it singling out a set of beliefs for special support (the proposition upheld by the Supreme Court in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3).

The Law Society’s constitutional concerns, by contrast, are simply made up. The moral concerns are real enough ― Trinity Western’s Covenant is profoundly illiberal (though nobody seems actually concerned about that) and homophobic in effect if not in intent. But that is not enough. As the committee of the Federation of Law Societies that considered Trinity Western’s proposed law school pointed out,

approval of the [Trinity Western] law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada seems certain to expand the choices for all students. [Quoted at 174]

The Court stated that “[t]hese findings are entitled to deference”, which may or may not be right. But quite apart from any deference, this statement is self-evidently correct. Even assuming (plausibly even if not entirely accurately) that no LGBTQ student would want to attend Trinity Western, the number of law schools open to such students does not change whether or not Trinity Western’s is allowed to operate. And the idea that Trinity Western might be “persuaded” to drop its homophobia is, as already noted, patently wrong. As the Court concludes, “it is incontrovertible that refusing to recognize [Trinity Western] will not enhance accessibility” [175] of legal education for LGBTQ people.

The Court is also right to reject “the submission that the approval of [Trinity Western’s] law school would amount to endorsing discrimination against LGBTQ individuals”. [183] As it observes, all manner of people and organizations seek and obtain regulatory approval for all sorts of projects and undertakings. It cannot be the case that such approvals are always synonymous with endorsement of these people’s and organizations’ beliefs. If it were otherwise, and the state had to refrain from communicating such endorsements, “no religious faculty of any kind could be approved”. [184] Arguably, no political activity should be either, since the state ought (morally and arguably constitutionally) be politically as well as religiously neutral.

Ultimately, as the Court rightly notes, the issue here is hurt feelings ― people’s outrage at the idea of a homophobic institution being allowed to freely operate not too far from the seat of power in society. The Court’s response to this is spot on:

While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs … Disagreement and discomfort with the views of others is unavoidable in a free and democratic society. [188]

I would add just a couple of observations. The first is that the whole Trinity Western imbroglio, which is of course not over as the case is likely to be headed for the Supreme Court, is one illustration of the perniciousness of the regulation of legal services in Canada (and elsewhere). The existence of law societies, which are at once state-sanctioned cartels and permanently-captured regulators, is a problem. The law societies that denied Trinity Western its accreditation, especially those that did it on the basis of referenda, put their members’ political agenda ahead of the public interest in having reasonably-educated (as all concede Trinity Western’s graduates will be) lawyers competing to provide legal services. That the agenda of LGBT equality is on the whole a very good one does not in any way stop this being a case of capture. If legal services were deregulated, and the law societies’ denied their privilege of erecting barriers to entry into the market, this would not have happened.

The second observation I wanted to make here concerns contrast between the reactions to the Trinity Western Covenant’s discriminatory effects and some other, similar, issues. One of these, which I have already referred to, is that same Covenant’s illiberalism. “No sex outside marriage” is an illiberal, near-totalitarian position. (It was one which actual totalitarians, in the Soviet Union and elsewhere, were quite keen on. They were also quite keen on homophobia, of course.) It would be so even if “marriage” were defined irrespective of gender or sexual orientation. Yet nobody, it seems, has been particularly concerned by Trinity Western’s illiberalism. Only its discrimination got people worked up.

Nor is anyone apparently concerned by other Canadian universities’ questionable approach to individual rights. I am not aware of a comprehensive Canadian resource similar to the Speech Codes Database of the Foundation for Individual Rights in Education, but consider just one example from British Columbia. UBC’s Student Code of Conduct provides that “[a]ny conduct on the part of a student that has, or might reasonably be seen to have, an adverse affect on the integrity or the proper functioning of the University … is subject to discipline under this Code”. What this means is not defined; although there follows a list of examples of what this prohibition might encompass, the Code is careful to state that they are no more than illustrations. Given the absurd vagueness of this rule, one can only conclude that due process rights are not held in very high regard at UBC; nor is freedom of speech, it would seem, considering the UBC Statement on Respectful Environment for Students, Faculty and Staff purports to proscribe such things as “gossip”. Again, these things do not seem to trouble anyone.

My point, to be clear, is not that these things are necessarily worse than, or even as bad as, the discrimination in the Trinity Western Covenant. It is only that the indignation that the Covenant has aroused seems at least somewhat selective. The law societies that have pounced on it to deny Trinity Western its accreditation are not all that concerned with individual rights. They are, mostly, concerned with one specific right, which just happens to be at the leading edge of contemporary progressivism ― for the time being, anyway (and perhaps not for much longer, as trans rights take over that position). However important that right ― and it is important ― signle-minded obsession with it does not show the law societies in a very good light as regulators in the public interest.

Be that as it may, it is a relief that five judges of the BC Court of Appeal saw this case for what it was ― an attempt by a majority, however well-meaning, to impose its views on a minority, however bigoted, to indulge its own moral preferences, however correct, rather than to defend anyone’s rights from legally cognizable injury, however slight. One can only hope that at least as many of their colleagues on the Supreme Court will see it that way too. Just as municipal functionaries in Québec should not be able to use their regulatory powers to silence a turbulent imam, Canadian law societies should not be able to use theirs to clamp down on turbulent pastors. The contrary result would be, as the Court notes, intolerant and illiberal.

6 thoughts on ““Intolerant and Illiberal”

  1. Do you think this case would have been decided differently if the Covenant made restrictions based on race or gender?

    I realize this question is a little disingenuous – not least because it is difficult to imagine how such a restriction would realistically look. But, in theory, if this were a racially-based restriction, the Court’s same logic regarding lack of discrimination would apply: that is, “approval of the [Trinity Western] law school would not result in any fewer choices for . . . students than they have currently.” But I have an inclination that the Court would not be willing to endorse such a restriction in that context.

    Although – and forgive my administrative law ignorance here – you may have a point that this issue is more about abuse of regulatory power than about Charter rights. The court even goes so far as to mention that this is not a “direct contest between Charter rights” [115].

    • You could imagine a ban on inter-racial dating, like in the Bob Jones case the court discusses. Whether that *would* be decided differently, I’m not sure. I don’t think it *should* be though, if the facts are otherwise the same (i.e. no claim for a public subsidy, and sincere religious belief).

  2. Pingback: “Intolerant and Illiberal”: The BC Court of Appeal is right to insist on tolerance for an intolerant institution | Advocates for the Rule of Law

  3. I suppose at the end of the day it will be up to the Provincial Law Societies to make sure that lawyers coming out of this Law School abide by their codes of ethics. It’s not like a non-religious law school won’t produce some anti-LGBTQ types, but it seems rather sad to see a law school that prides itself on such views opening up, but I agree with the court’s decision in general terms.

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