When conservative Christian leaders in America woke up the morning after the Supreme Court ruled abortion to be a constitutional right with its Roe v. Wade decision in 1973, they realized their opponent had engineered a legal revolution while they were napping. In the years that followed, a cluster of conservative legal advocacy groups were formed, along with law schools such as Patrick Henry College (Evangelical Protestant) and Ave Maria School of Law (Catholic).
Canada is beset by the same liberal judicial activism as the United States, and now the country’s leading private Evangelical Christian university, Trinity Western in Langley, British Columbia, wants to start a law school with the same game-changing intent as some of its American counterparts. The forces of political correctness—the LGBTQ lobby, in other words—are rallying against TWU, however, throwing concerns about freedom of speech, religion, and conscience to the wind.
A gathering legal storm
Though TWU is yet to file a writ, there is no doubt it will do so if necessary. The coming legal battle has been much anticipated, not least because it will advance the principle of “reasonable balance” for resolving conflicts between two rights—in this case, religious freedom and sexual preference.
But there is another reason for interest: Trinity Western went through a very similar (it would say identical) legal battle with British Columbia teachers when the university sought to establish a degree-granting teachers’ college more than a decade ago. The governing body for teachers in the region, the B.C. College of Teachers, at first approved the application. But once alerted to TWU’s “Community Covenant” requiring staff and students to adhere to Christian behavior—including sexual intercourse only within the confines of heterosexual marriage—it withdrew its approval, on the grounds TWU grads would discriminate against gay public school students in the classroom. In 2001 the Supreme Court of Canada ruled in TWU’s favor, though not on the grounds sought—that its religious rights took precedence over those of sexual minorities—but because there was no evidence of any discrimination by TWU grads who became teachers.
Given that precedent, the national legal accrediting body, the Canadian Federation of Law Societies (CFLS), had no trouble approving TWU’s proposed law school last year. Nor did the British Columbia government. However, the faculties of the country’s existing law schools had plenty to say, all of it hostile.
TWU versus the B.C. College of Teachers mattered not, they said: it was years ago, and Canadian society had changed and become more tolerant of sexual minorities, which meant, of course, more intolerant of anyone who disagreed. The courts must change the law to reflect this, they argued. Goaded by homosexual activists, the professoriate led several provincial law societies to reject the CFLS decision. The Ontario Law Society voted against TWU. When the board of governors, or benchers, of the B.C. Law Society approved TWU’s law school, the society’s members at large called for a non-binding general vote that went entirely against TWU. The benchers will issue their final ruling in September.
Is the kind of thinking that has prevailed with Canada’s rank-and-file lawyers likely to find favor with the Supreme Court? If the argument made in the news media by Angela Chaisson of the law firm Ruby Shiller Chan Hasan is typical, TWU may have little to fear: “TWU’s proposed law school will discriminate against queer persons by imposing a queer quota,” says Chiasson. “There are already not enough law school places for the students who want to become lawyers. And by letting Trinity Western create a school that bars gay students from attending, the Federation of Law Societies would create a quota system: fewer law school places would be available to LGBTQ students than to straight students. The quota system was wrong when it applied to Jews and to blacks and it has no place in Canadian society today. This is backwards; a step in the wrong direction.”
Given that “reasonable balance” measures relative harm done to minorities in conflict, surely there is no case here for harm to LGBTQ students. If there are too few law classroom spots for LGBTQ students, then a new school must provide more: even if TWU’s Covenant did ban gay students, which it does not (it only bans gay activity), it would still draw straight students away from other schools, opening more places for LGBTQ students at those places.
Undermining Chaisson’s argument further: other opponents of TWU contend there are too many law schools in Canada, not too few. And furthermore, TWU’s tuition fees are likely to be $22,000 a year, at least double those of most other schools in Canada.
More serious were the arguments advanced by Professor Ellen Craig, which she made first to the national Federation of Canadian Law Societies, and when that failed, to the B.C. Law Society, where she also failed. Craig argued that the previous TWU victory in the teachers’ college case did not apply to the law school. The earlier decision rested on the lack of evidence of any discriminatory behavior by TWU grads. In the law school’s case, she argued that the Covenant demonstrated that TWU would be teaching in a discriminatory manner regarding gays, in violation of the legal profession’s own ethics, justifying the refusal to accredit the law school. Moreover, the school’s commitment to biblical inerrancy “violates academic freedom” and means the school cannot teach critical thinking, according to Craig. That academic freedom would be raised by the side seeking to prevent a Christian teaching of law is just one of many ironies in the attack on TWU.
University leadership remains confident
TWU has vowed to take whoever is required to court, just as it did in the teachers’ college case. Financing this is not expected to be a problem, given the flood of donations that came in to cover the earlier legal battle. TWU’s President Bob Kuhn, class of ’72, says he’s confident of final victory, but he just hopes the opposition doesn’t force the issue to the Supreme Court of Canada as it did before. “They lost at every level and appealed all the way to the Supreme Court. We expect they will again,” he says ruefully.
As far as Kuhn can see, “There is no basis to distinguish the two cases; nor has the case law since then given any reason to think the Supreme Court has changed its thinking.”
If anything, jurisprudence has moved more strongly in deciding that a “reasonable balance” is one that favors the weaker minority, which Kuhn argues is Canada’s Evangelical Christian community. “The way the majority of the B.C. and Ontario lawyers—and all the law faculties—have gone against us suggests that it is we Christians whose minority rights are threatened,” says Kuhn.
The strength of the opposition to TWU has surprised and disappointed Kuhn. “As a member of the legal profession, I’m certainly taken aback by the number of fellow lawyers and professors who haven’t thought it through on the balancing of rights. There seems to be a knee-jerk reaction based on their worldview.”
Such factors probably weighed heavily with the B.C. Law Society, whose benchers voted overwhelmingly in TWU’s favor in April. But it cut no ice with the general membership, who voted solidly against two months later. The benchers are not, however, bound by the general vote, and are withholding their final decision till September.
It may only be necessary for TWU to challenge one of these decisions. Kuhn says he has no doubt the school will prevail in court. He says the argument that Canadian society is threatened, and Canadian law along with it, by the existence of a single contrary law school is itself proof of the country’s need for such a school. “The homogeneity of the opinion against us across all the law schools in the country should be frightening to reasonable people,” he says. “They want to preserve the profession as a kind of closed club.”
That club is dominated by the view that the law is indeed a creation of the majority, full stop. At TWU, on the other hand, a more traditional view will be advanced: that the law reflects humanity’s attempts to know and mirror God’s law. Kuhn points out that not only is the Canadian Charter of Rights and Freedoms premised upon “the supremacy of God and the rule of law,” but that it goes on to recognize the freedom of religion as one of the fundamental freedoms (along with conscience, expression, assembly, and association) upon which all others are based. “That’s not an accident,” he notes. “It means all our rights depend on our religious rights.”
Kuhn says the prevailing legal theory that there is nothing fundamental backing up the law is dangerous not only to religious rights but to all rights. “The rule of law is a chimera if what it means is up to whoever is in the majority at any one time,” he says. “We believe we have equal rights because we are equal in God’s eyes.”
Conspiracy theories abound
Another element of the opposition to TWU is anti-Americanism. Rarely a dominant sentiment in Canada, where Americans are generally viewed positively, anti-Americanism nonetheless burrows like a snake through Canadian political history, residing first on the right side of the ideological spectrum and lately on the left. A secular expression of this could be found with Jean Chretien, Liberal prime minister from 1993 to 2003. His notorious response to the 9-11 attacks was that the US had provoked them by its international bullying (which he experienced first-hand as a junior minister when the US government threatened to cut off oil to Quebec if the Canadian government reduced oil shipments from Western Canada to the US.)
But lately the American Left’s demonization of “social” (often religiously motivated) conservatives in the US has carried over into Canada. It has found its strongest expression in the writing of journalist Marci McDonald, who came back from covering Washington, DC for Canadian magazines issuing dire warnings that religious conservatives had ruined the US and would do the same in Canada. McDonald’s first shot came in book form. The Armageddon Factor relies on various American conspiracy theories about how rich, conservative Christians are quietly plotting to turn the US into a theocracy. She tracks dozens of connections between them and conservative Canadian Christians, who are similarly plotting to bring in a theocracy, she claims. They live in “a faith-based bubble”; they do not share the “sophisticated, secular, and urban” majority’s “reverence for tolerance”; they send their children to Christian schools, summer camps, and rock concerts. They believe that the Second Coming is imminent, and that same-sex marriage and abortion are wrong. They listen to Christian programming on their iPods, and they study at Christian colleges.
In fact, McDonald only names one such college, Trinity Western University. But far from being the pietistic, insular institution we might expect from her stereotypical portrayal of Evangelical Christians, TWU is described by McDonald as outward-looking, aggressive, and sinister. Its mission is to train “Godly Christian leaders” not for churches but for the secular culture. McDonald dubs this a “grandiose goal,” but spends considerable space “exposing” the Laurentian Leadership Centre, TWU’s base in Ottawa. TWU sends dozens of grads to Ottawa as interns; they learn the practical art of politics while simultaneously forming a philosophical framework at Laurentian.
Canada has been led by Prime Minister Stephen Harper’s Conservatives since 2005, and its caucus is home to many conservative Christian politicos with TWU grads working in their offices, all of which McDonald finds worrisome, even though Harper has largely succeeded in suppressing his caucus’ traditional views on abortion and same-sex marriage. Earlier this year McDonald published an article warning that Harper’s employment and multiculturalism minister and likely successor, Jason Kenney, is an ardent social conservative and an equally ardent, equally conservative, Catholic, who has made a name for himself stealing Canada’s burgeoning immigrant population from the Liberals and turning them into loyal Conservative voters. Kenney’s faith solidified at the University of San Francisco, a Jesuit school he quit before graduating because of its liberal leadership.
All such signs of a resurgent, confident conservatism, all with American connections if one digs back far enough, are just more reasons for the Canadian Left to fight TWU’s law school plans tooth and nail. TWU has already infiltrated the public schools and Parliament. Now it seeks to do the same with the legal profession. It has even reached out to conservative Catholicism by allowing a new Catholic institution with the same broad social perspective, Redeemer Pacific College, to be established under its wing.
Optimism for the future
But does TWU Law have a chance, with the loudest, if not the best, legal minds in the country ranged against it?
Mary Anne Waldron, a law professor at the University of Victoria in British Columbia, is more worried about her province’s lawyers than TWU’s prospects. Waldron, author of the award-winning Rethinking Freedom of Conscience and Religion in Canada, says bluntly that B.C.’s lawyers have demonstrated both their disrespect for and ignorance of the law and especially the Constitution. Worse, they have engaged in what amounts to “hate speech…directed at TWU and at every orthodox Christian, Sikh, Muslim, and Jew in the province,” as these moral codes all condemn homosexuality.
The legal challenges to TWU are pointless, says Waldron, given that they have little hope of surviving a challenge. Against them stand “the fact of a prior Supreme Court of Canada decision directly on this issue; the fact of a specific protection for those who hold a religiously-defined view of marriage in the Civil Marriages Act of Canada; the fact of protection in the Charter for freedom of religion and conscience,” as well as recent case law. “They can plead guilty either to an enormous waste of time…or they can plead guilty to anti-religious bigotry and hypocrisy. Take your pick.”
Meanwhile, Archbishop Michael Miller, CSB of Vancouver has backed TWU all along. He told CWR, “It’s important that we stand together with our Christian brothers and sisters at TWU as they assert their constitutional and natural right, indeed their obligation, to uphold their beliefs. As St. Paul told the Corinthians, we have an obligation to preach the Gospel, and woe unto us if we do not.”
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