In liberal democracies freedom is often understood to be individual in character. Individuals, in this view, are free from arbitrary interference by others as they work out their various conceptions of the best life to live. This essay suggests that freedom is more complicated than this, not least because the best way to live a life usually involves membership in a larger association or community that makes claims on one's freedom. Communities of membership enforce particular standards on their members and these do, to a greater or lesser degree, constrain individuals' choices. In a liberal society no association can exercise the coercive powers of the state. Associational membership in liberal regimes requires, as Albert Hirschman argues that members enjoy the ability to belong, to voice their views about the community of which they are members, and to exit if they choose. (1)
But to what extent can the norms governing life within particular communities and associations diverge from the principles of the larger polity? Put differently, does a liberal democratic polity require the myriad associations flourishing within it to mirror, replicate, or embody the principles and norms of the polity itself? Can liberal regimes tolerate illiberal sub-state associations? Or shall liberal principles of individual freedom, equality, and due process extend all the way down from the Constitution to the institutions and associations of civil society itself? In other words, does Canadian law contain a vision of the good life which it seeks to actualize in its application to human conduct? Or does Canadian law leave room for different, even illiberal ways to live and thrive?
The relative autonomy of sub-state associations raises questions about the nature of liberalism as a political doctrine. Increasingly, Canadians are confronted with two types of liberalism. The first, liberal pluralism, operates as type of modus vivendi, permitting a diverse array of associational options. The second, a thicker, more comprehensive liberalism, which seeks to permeate all of civil society with liberal values, pre-eminently the idea of individual autonomy.
The choice is presented vividly in the contemporary controversy associated with Trinity Western University's ("TWU") proposal to establish a law school whose graduates would be accredited to practice law throughout Canada. TWU is an evangelical Christian school whose staff and students are required to sign a "Community Covenant" committing them to upholding traditional Christian standards of morality, including the sanctity marriage between a man and a woman. Several law societies have refused to accredit the school on the basis that its Covenant violates the equality rights of homosexuals.
In particular, the article will examine the proceedings of the Law Society of Upper Canada, which after receiving over 200 briefs from members and others, refused to accredit the school. It will suggest that the opposition to TWU's law school is consistent with a narrow account of religious freedom, a desire to limit associational autonomy, and ultimately a comprehensive liberalism in which liberal values apply throughout civil society. Such a development not only casts into doubt whether Trinity Western can produce lawyers who seek to practice in Canada, but comprehensive liberalism may call into question the very existence of a confessional university.
The TWU Controversy (2)
Canada currently has 18 law schools preparing students for the practice of law in common law jurisdictions (all but Quebec, which adheres to the French civil code tradition). In 2012, TWU commenced plans to open a new law school on its Langley, BC campus. To practice law in any Canadian province, law graduates must obtain a license. To obtain a license, they must pass a bar admission exam and demonstrate that they have graduated from an accredited law school. As such, each province's bar society accredits law schools. In 2012, the Federation of Law Societies of Canada ("FLSC") set a national requirement and process for approval of common law programs for the purposes of admission to the bar of any province. Importantly, the FLSC law school accreditation process does not supplant provincial accreditations processes, but was intended to make these processes a much more uniform and proforma affair.
TWU submitted its proposal to the approval committee of the FLSC in June 2012. The proposal met with "strong reaction." The source of this was TWU's Community Covenant and its particular reference to the sacredness of marriage between a man and a woman as a standard for conduct among all TWU students and staff. The FLSC's approval committee felt it lacked the mandate to explore the criticisms of the Covenant, so it appointed a special advisory committee to examine the "public interest" issues associated with the Covenant and report back. In its report the special advisory committee wrote that,
[T]he Community Covenant may result in differential treatment of LGBT individuals. Faced with a requirement to commit to a code of behaviour that prohibits sexual activity outside of marriage between a man and a woman, LGBT students would legitimately feel unwelcome at a TWU law school. The SCC has made it clear, however, that the religious freedom rights of those who might wish to attend such a faith-based institution must also be considered and it is clear from the submissions received by the Federation that there are many such students. (3) Further, [W]e are not aware of any evidence that TWU limits or bans the admission to the university of LGBT individuals. A number of those who made submissions to the Federation noted that there are LGBT students at TWU. It is reasonable to conclude that the requirement to adhere to the Community Covenant would make TWU an unwelcoming place for LGBT individuals and would likely discourage most from applying to a law school at the university, but it may also be that a faith-based law school would be an attractive option for some prospective law students, whatever their sexual orientation. It is also clear that approval of the TWU law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada seems certain to expand the choices for all students. (4) The committee concluded that there was no public interest reason to exclude TWU graduates from the practice of law in Canada.
The FLSC's Approval Committee distinguishes between concerns and comments in its evaluations of elements of a proposal. For example,
Where an element of the national requirement is currently met, but compliance is at a minimum level that could deteriorate to a deficiency, the Approval Committee may raise the matter as a concern. A school may choose to address the concern, but no action is required for approval of the program. A comment relates to a matter that does not affect compliance, but that the Approval Committee wishes to bring to the attention of the institution. (5) Registering a concern, the members, see a tension between the proposed teaching of these required competencies and elements of the Community Covenant. In particular, the Approval Committee is concerned that some of the underlying beliefs reflected in the Community Covenant, which members of faculty are required to embrace as a condition of employment, may constrain the appropriate teaching and thus the required understanding of equality rights and the ethical obligation not to discriminate against any person. (6) The FLSC's advisory committee approved the proposal to accredit TWU's proposed law school nonetheless, noting concerns about how the public law and ethics, as well as professionalism courses will be taught
At time of writing, the law societies of Alberta, Saskatchewan, New Brunswick, Prince Edward Island, and Yukon Territory accredited the law school. Some law societies have decided against consideration until the courts have disposed of the issue. On April 25 2014 the Nova Scotia Barristers Society voted 10-9 to refuse accreditation unless TWU alters its Covenant. The Law Society of Upper Canada ("LSUC")--Ontario's professional association--also rejected accreditation. In Ontario's case the vote of Benchers on April 24, 2014 was 28-21 (with one abstention) to reject the motion to accredit. The Benchers did not issue reasons for rejection. In British Columbia, Benchers initially approved TWU's application, but received criticism from members for the decision. Members pushed for a consultative referendum asking the Benchers to rescind their approval. The Benchers threw it back to the membership. A formal, binding referendum was held in October 2014, and 74% voted to rescind approval. Benchers then followed suit, as did the British Columbia Minister of Advanced Education.
The decisions to reject accreditation and the discussions preceding them reveal much about the nature and strength of ideas of secularism, religious freedom, and liberalism in Canada. Three provincial law societies--Ontario, British Columbia, and Nova Scotia--undertook extensive public consultation processes and invited comments on the accreditation proposal. This analysis focuses on the Ontario process. Ontario is Canada's largest provincial jurisdiction and the LSUC is Canada's oldest and largest law society. Ontario is a particularly apt case study since many of the submissions made to the LSUC were also made to the other law societies.
The author surveyed each of the 212 submissions made to the LSUC regarding the TWU proposal ahead of the LSUC's April 24, 2014 decision. These submissions are available on the LSUC web page devoted to the TWU process. (7) Only 10 of the 212 were not relevant to this study. Some were concerned with the oversupply of lawyers that a new school could create. Other submissions were short letters from members of an association appending a previous statement made by an officer...