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B.C. university’s law school plan still under threat over requirement viewed as anti-gay

Trinity Western will make its case at a meeting in St. Andrews in June.

A bid by Trinity Western University (TWU) to set up its own law school may end up being torpedoed despite getting a green light from the group representing Canadian law societies.

The privately run evangelical Christian school, based in the Fraser Valley just east of Vancouver, thought it was clear sailing after the Federation of Law Societies of Canada gave preliminary approval to accredit the proposed school.

Opponents in the legal community wanted the school's application rejected because TWU requires students to sign what's called a community covenant agreement. Among other things, it includes a promise that students, faculty and staff abstain from "“sexual intimacy that violates the sacredness of marriage between a man and a woman."

The ban on pre-marital (and presumably extra-marital) sex covers both heterosexual and homosexual couplings. But because gay marriage is legal in Canada, the requirement is seen as discriminating against homosexuals.

A special committee struck by the federation concluded that as long as the school adhered to the federation's and provincial law societies' national requirement for law schools, there was "no public interest reason" not to accredit it, meaning TWU law graduates could be granted admission to the bar.

However, the national requirement does not include a non-discrimination clause now commonly required of U.S. law schools, and the committee suggested including that in the future.

[ Related: B.C. law school that bars gay sex gains preliminary OK but may face legal challenge ]

TWU, which has about 4,000 students, planned to launch the law school next September with an initial enrolment of 60 students.

But the decision last month has generated a growing backlash in legal academia who are pushing provincial law societies to reconsider approving Trinity Western's school, which would make difficult if not impossible for its grads to practice law.

The Globe and Mail reports law societies in Ontario and Nova Scotia are planning to review the TWU proposal.

“We do want to make sure that we make an extra effort in this case,” said René Gallant, president of the Nova Scotia Barristers’ Society.

The British Columbia Law Society is also planning to decide next month whether to revisit the issue, the Globe said.

The University of British Columbia's Law Faculty Council voted to urge the society to look at how TWU's covenant agreement might affect the education law students would receive there.

“We encourage the law society to look fully at the conflict between TWU’s community covenant agreement and a lawyer’s obligation of non-discrimination,” UBC law professor Margo Young told the Vancouver Province.

“As a result of the community covenant agreement, lawyers employed by TWU as staff or faculty may be forced to choose between enforcing TWU’s covenant agreement and complying with B.C.’s Code of Professional Conduct, which requires non-discrimination.”

The accreditation decision has also come under fire in legal communities in Saskatchewan and Alberta, where the University of Alberta and University of Calgary law professors have urged the provincial law society to take another look.

TWU has been here before. In the 1990s, the B.C. College of Teachers refused to accredit the university's teaching faculty because the discriminatory nature of the covenant agreement (then known as the community standards agreement) raised concern the school's teaching grads might not be able to practise their profession without discrimination.

The case went all the way to the Supreme Court of Canada, which in 2001 upheld lower-court rulings that backed TWU's position. However, the high court based its ruling on principles of administrative law, not the Charter, according to a Queen's University's human rights office synopsis of the case.

[ Related: York U debate: How far is too far when it comes to religious accommodation? ]

The legal community's objections to the TWU law school follow the same argument as the teachers, Vancouver Sun columnist Daphne Bramham observes.

"(I)t is reasonable to ask how TWU can be trusted to turn out law graduates who will not only challenge Canada’s Charter of Rights and Freedoms, but respect it and be willing to defend it," she wrote on Thursday.

"It’s a question particularly close to the heart of this debate since the legalization of same-sex marriage is the direct result of a Supreme Court of Canada decision that centred on constitutionally guaranteed equality rights.

"Would a TWU-trained justice make that kind of ruling? Would a TWU-trained lawyer be willing or able to passionately argue both sides of the question?"

It's naive to think that lawyers, regardless of background, don't have personal biases and prejudices. The question being asked here is whether a student's acceptance of TWU's covenant agreement is implicit evidence he or she could not be impartial in a legal case.

The Supreme Court in the teachers college decision concluded that such reasoning is a stretch.

In a way, the TWU situation covers the same hierarchy-of-rights ground found in the recent controversy over a York University professor's refusal to let an online student skip a group study activity because his religion forbade public contact with women.

Does the Charter right of equality of persons override the TWU's right as a private institution to exercise its religious freedom via the covenant?

In an editorial last month on the TWU situation, the Globe and Mail noted the Supreme Court in the 2001 teachers' college ruling said neither right trumps the other, that they must be balanced.

The balance point is the line between belief and action, the court said. If TWU teaching grads brought discriminatory views into the classroom, the teachers' college could sanction them.

“Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected," the court said.

Still, opposition from law professors and some law societies, which act as the accrediting bodies for lawyers wanting to practise in those provinces, could make it hard for TWU grads unless some compromise is reached.

The Globe editorial suggested TWU modify its covenant agreement to stress that it does not discriminate on the basis of sexual orientation while asking students to abstain from sex outside of marriage.

"It is not as if the school’s covenant is immutable; since 2001, the school has altered the language, including removing a formerly explicit prohibition of homosexuality," the Globe noted.