The Law Society of British Columbia will decide Friday, April 11 whether to accredit the law program proposed by Trinity Western University. The proposal is a matter of fierce controversy, not just in B.C. but across the country. The problem is TWU’s covenant, which all students and faculty are required to sign. It requires students “reserve sexual expressions of intimacy for marriage” and defines marriage as exclusively between a man and a woman. Students can be disciplined if they breach the covenant. This means, for example, that validly-married gays and lesbians would be barred from TWU unless they renounced “sexual expressions of intimacy.” It is this discrimination against same-sex relationships at the foundation of the objections. The issue is especially challenging because it requires that one confront two difficult questions. 1. How should one balance equality rights against freedom of religion? 2. To what extent should a private institution such as TWU respect public obligations? This is not a case of purely private conduct. The question only arises because TWU is seeking public recognition of its degree. The second question is still relevant. In a diverse society, we always need to consider the extent to which institutions should balance public obligations and the accommodation of difference. The balance might be different in private institutions. Public institutions are expected to be even-handed in a way that private institutions are not. But that doesn’t mean that private institutions escape scot-free, especially if they want to enjoy public recognition. So, what forms of discrimination are being alleged by critics of TWU’s application? Some critics argue because TWU students will be taught that homosexuality is wrong, graduates will be disrespectful of same-sex relationships. Others argue simply any law school must accept the law as it stands, and that TWU departs from Canadian law’s acceptance of same-sex marriages. However, these two arguments have become much less prominent in the recent discussion. Indeed, many critics of the TWU proposal strongly reject them. Why? First, it is too simple to say students would discriminate in practice. If only we teachers were so powerful. Our students are just as likely to react against our views as adopt them. We train them to question our views. If TWU graduates accept that same-sex relationships are wrong, I expect the vast majority would behave professionally when addressing same-sex rights, just as evangelical or Roman Catholic lawyers do. Lawyers operate in a diverse world. An ethical lawyer respects that diversity. As for the other objection, no decent law school can only teach the law as it stands. For one thing, the law is constantly changing. A good lawyer needs to understand and assist the evolution of the law. If lawyers inevitably argue over how the law should evolve, there has to be room to argue the law is wrong. That is especially true for dissenting opinions based on religious belief. If we respect freedom of religion, we need to allow teachers to voice religiously-grounded objections to the current state of the law, as long as they do not cross the line into the propagation of hate. That means the first set of objections should be rejected. TWU should be permitted to teach, from its evangelical perspective, that the law should return to a heterosexual definition of marriage. You don’t need to like that TWU takes this position. You can deeply regret there isn’t more acceptance of gay and lesbian equality. But tolerating dissent is precisely about tolerating what one doesn’t like, not accepting what one does like.

There is, however, another objection to TWU’s proposal, namely that provincial law societies should not put their stamp of approval on a law degree that discriminates against students on the basis of sexual orientation. The argument is that the covenant amounts to the discriminatory exclusion of gays and lesbians from TWU’s law school. To be fair, gays and lesbians aren’t directly excluded. One can always decline to be sexually active or one can agree to the covenant without any intention of keeping one’s word. However, critics argue these distinctions are a smokescreen, because, if nothing else, the insistence on the covenant makes clear that gays and lesbians are not welcome. To see the force of the objection, consider this: If the admissions policy of a proposed law school discriminated on the basis of race — even if that discrimination was based on religious belief — no law society in the country would accredit it. The example of race is not artificial. In 1983, the U.S. Supreme Court dealt with the case of Bob Jones University, a private university that originally refused to admit African-Americans. When it changed that policy, it then refused, on religious grounds, to admit students who engaged in interracial dating or had an interracial marriage. Sound familiar? The U.S. Supreme Court decided the IRS was entitled to revoke the university’s tax-exempt status. That status was tied to its charitable purposes and, if it wanted to retain that recognition, Bob Jones could not act in a way that was contrary to the conscience of the community. Note that the problem was not simply whether there were, in the system as whole, adequate places for students in interracial relationships. The problem was the symbolic message of attaching public benefits to a program that discriminated on the basis of race. TWU is in an analogous situation. It too is a private institution. It is asking for a public benefit: the recognition of its law degree for the purpose of practicing law. Now, the law societies should be careful to restrain themselves when accrediting degrees. There are lots of ways to teach law. Each has strengths and weaknesses. And they need to make room for the diversity of Canadian society, especially differences based on religious belief. Law societies should not, then, impose too narrow an approach. But law societies still must enforce some minimal standards. The example of race makes that clear. What about the discrimination in this case? Is it different from race? It is a real question. The effect of rights is rarely automatic. That goes double when rights are in tension, such as religion and equality. The answer must depend on the nature of the conduct, its significance to the believer, and the importance of the interests that would be sacrificed if the conduct was protected.