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Trinity Western University President and Chancellor Bob Kuhn stands for a photograph at the university in Langley, B.C., on Thursday January 30, 2014. (DARRYL DYCK For The Globe and Mail)
Trinity Western University President and Chancellor Bob Kuhn stands for a photograph at the university in Langley, B.C., on Thursday January 30, 2014. (DARRYL DYCK For The Globe and Mail)

Law Society benchers put in a tough spot with Trinity Western debate Add to ...

The work of those who govern B.C.’s law society became more complicated with Tuesday’s vote on Trinity Western University’s law school.

The law society has a statutory monopoly over the practice of law. Its benchers are the gatekeepers to the right to earn a livelihood as a lawyer. How should they exercise that authority? Traditionally, they have been most concerned with two things: competence and honesty. The TWU debate challenges that approach.

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TWU’s proposed law school is controversial not because there is some doubt that TWU is capable of teaching the finer points of corporate tax or car crash law. Nor is there any reason to suggest its graduates would lack integrity. The issue is that TWU, a privately run and funded institution in a Vancouver suburb, requires its students and faculty to sign a covenant that includes a provision prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Break that rule by enjoying your legal rights as a spouse in a same-sex marriage, for example, and TWU can throw you out.

In April, the benchers, who are the law society’s governing body, voted to approve TWU’s proposed law school for the purposes of its admission program. A Victoria lawyer launched a process to compel a special meeting of the law society to debate a resolution calling on the benchers to reverse their decision. At the end of that meeting late Tuesday, lawyers voted 3,210 to 968 in favour of that motion.

The result is not directly binding on the benchers. But it will be hard for them to ignore it. You can be sure that if this strong majority does not get its way, there will be a well-organized campaign to vote the unco-operative benchers out of office at the next election.

Nonetheless, there are some good reasons the benchers might decide to hold their ground. Here are two.

First, if the law society de-lists TWU over the covenant, how will it resist the call, bound to come sooner or later, to ask individuals who want to practice law to declare their religious views? If the profession cannot tolerate an institution that embraces discrimination, why should it tolerate individuals with the same views?

To implement the will of the majority on this issue is to threaten the independence of the bar, which is fundamental to our legal system, and which means lawyers must be able to oppose the status quo without fear of consequence. The law society’s job as gatekeeper is to police competence and honesty, not religious belief.

Second, it is hard to avoid the Supreme Court of Canada’s 2001 decision ordering the British Columbia College of Teachers to recognize TWU’s teacher training program. Many lawyers have told me the benchers should ignore this decision because it is wrong, or no longer good law. With respect, unless and until the Supreme Court changes its mind on the point, theirs is not just the last word, it is the law. Lawyers who oppose the accreditation of TWU on the basis that a Supreme Court of Canada decision is out of date are not advancing the rule of law, they are undermining it.

Lawyers are free, of course, to argue that this decision ought not to be the law. But the benchers ought to comply with the law as it is, not the law as it might be.

Our constitution expressly protects religious freedom. Our constitution also protects equality rights, including the right to be free from discrimination. Unhelpfully, perhaps, the written constitution does not say whether some rights are more important than others. Tuesday’s vote tells us a great deal about what B.C.’s lawyers think about this question. In a contest between religious freedom and equality rights, equality won hands down.

While there is good reason for the benchers to take great care in what they do next, the larger message is clear: Those who invoke religious freedom as an excuse to discriminate should not assume they will forever enjoy the protection of our laws.

Geoff Plant was B.C.’s attorney-general from 2001 to 2005. He now practices law with Gall Legge Grant & Munroe in Vancouver.

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