On the TWU Law School case

From the CBC in early November

“The B.C. Court of Appeal has upheld the right of future graduates of the faith-based Trinity Western University (TWU) Law School to practise law in the province.”

The formal decision can be found here.  Here’s the summary of the decision:

The Law Society decided not to approve a law school at TWU because students attending TWU must sign a Community Covenant which does not recognize same-sex marriage. TWU sought judicial review. The decision was set aside by the chambers judge. The Law Society appealed. Held:  Appeal dismissed.

The issue on appeal is whether the Law Society met its statutory duty to reasonably balance the conflicting Charter rights engaged by its decision: the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially voted to approve TWU’s law school. That decision was met with a backlash from members of the Law Society who viewed it as endorsement of discrimination against LGBTQ persons. The Benchers decided to hold a referendum and to be bound by the outcome. A majority of lawyers voted against approval. The Benchers then reversed their earlier position and passed a resolution not to approve TWU’s law school.

In doing so, the Benchers abdicated their responsibility to make the decision entrusted to them by the Legislature. They also failed to weigh the impact of the decision on the rights engaged. It was not open to the Benchers to simply adopt the decision preferred by the majority. The impact on Charter rights must be assessed concretely, based on evidence and not perception.

The evidence before the Law Society demonstrated that while LGBTQ students would be unlikely to access the 60 additional law school places at TWU’s law school if it were approved, the overall impact on access to legal education and hence to the profession would be minimal. Some students who would otherwise have occupied the remaining 2,500 law school seats would choose to attend TWU, resulting in more options for all students. Further, denying approval would not enhance access to law school for LGBTQ students.

In contrast, a decision not to approve TWU’s law school would have a severe impact on TWU’s rights. The qualifications of students graduating from TWU’s law program would not be recognized and graduates would not be able to apply to practise law in British Columbia. The practical effect of non-approval is that TWU cannot operate a law school and cannot therefore exercise fundamental religious and associative rights that would otherwise be guaranteed under s. 2 of the Charter.

In a diverse and pluralistic society, government regulatory approval of entities with differing beliefs is a reflection of state neutrality. It is not an endorsement of a group’s beliefs.

The Law Society’s decision not to approve TWU’s law school is unreasonable because it limits the right to freedom of religion in a disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objective.

After having assessed an ethical dilemma presented in my PIDP “Professional Practice” course (albeit one with a considerably smaller scope), I was curious enough to take a quick review at this case that made national news, and see if I could align the court’s ruling with Kidder’s (2009) “Nine Step Decision Making Process” we were introduced to in this course.  Let’s see how the court did…

  1. Is this a genuine moral question? Right is being seen as pitted against right here, in the legal sense in this case.  There are moral arguments to be made that allow individuals control over their private lives outside of school, and arguments to be made around the rights of private organizations to insist on certain characteristics of their membership.  In the decision, the court discussed legal rights: i.e.,  “the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians.”
  2. Is the court responsible for settling this issue?  The legal courts have both the obligation and the power to regulate the actions of an organization with the specific task of training lawyers who will be responsible for participating in the legal system on behalf of their clients.
  3. Have the relevant facts been gathered?  Between the original court case and subsequent appeal one assumes this has been done, especially since the concerned parties bringing this case to the court were themselves part of the Canadian legal system, as both professionals and trainers of professionals!
  4. Is one alternative clearly morally wrong?  The court seems to have considered this and decided that no, neither alternative was ‘clearly morally wrong’.  Instead, the court attempted to weigh the impact of the decision on the rights engaged”. That is, to recognize the rights stated in (1) are both valid, and to therefore try to determine which should override the other.
  5. What sort of dilemma is it? To me, given the options Kidder provides it would seem that this could best be described as an ‘individual vs. community’ sort of dilemma, but it may perhaps be more accurately described as a ‘community vs. smaller community’ issue.  That is, the interests of the legal or student community as a whole vs. the interests of a subset of that community (i.e. a group that holds specific beliefs).  In referencing a ““clash of commitments” in our country between the “prevailing ethos” of the rule of law and the claims of religion”, the court’s description seems to have considered the dilemma closer to a ‘justice vs. mercy’ type.  Hm, I’ll have to leave it to the reader to try to sort that one out!
  6. Which is most relevant: the ends-based, rules-based, or care-based principle?  Although legal decisions may often seem to default to a ‘rules-based’ principle, our legal system relies heavily on precedent, so the ends should always be considered as well.  In this case the court considered “the impact of the decision on the rights engaged”, suggesting that they took an ends-based approach (or at least tried to!).  That is, considering how to produce the greatest good for the greatest number of people.
  7. Is there a compromise that could satisfy all parties involved? It’s not clear that the court actively searched for such a ‘third way’, or that they felt any obligation to do so.  If anything, the ‘third way’ might have been the referendum approach of the Law Society mentioned in the judgment, that was subsequently rejected by the courts.
  8. Make a decision.  Well, like it or not each court is rather required to come to a decision one way or the other!
  9. Revisit and reflect on the decision. Although different individuals were involved, the fact that this decision went to an appeals court necessarily means someone had to revisit the decision!   Similar issues will undoubtedly resurface, as different Charter rights and freedoms certainly can and do conflict, so this decision may very well be revisited in the future as well.

The upshot? Kidder’s approach seems to be applicable to many ethical dilemmas, and frankly I’m just glad I’m not in a position to have the last word on some of them!

 

References

Kidder, R.M. (2009) How good people make tough choices: Resolving the dilemmas of ethical living. (Rev. ed.) New York: Harper Perennial.

Laanela, M., and Merali, F. (2016, November 1) Trinity Western University Law School wins legal battle in B.C. court. Retrieved from http://www.cbc.ca/news/cbc-news-online-news-staff-list-1.1294364.

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