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Lawyers whose law school bans gay or non-marital sex will be admitted to some bars, not others

The provincial Law Societies that govern bar admissions in Ontario and Nova Scotia have decided not to admit graduates of a new law school at a long-established university, Trinity Western University in Langley, B.C. But the Federation of Law Societies of Canada, and Law Societies in BC, Alberta, Saskatchewan, PEI, Newfoundland and Labrador, and Nunavut have decided to accredit the law school and admit its graduates.

Piecing together what actually is happening by looking at what people on both sides are saying, it seems clear that the reason for the ban is not the issues of quality and professionalism that are typically cited in US accreditation. Rather, the proponents of the ban cite the University's sex policy. It requires students, faculty and staff to sign a "Community Covenant Agreement" to limit “sexual intimacy” to the context of marriage between opposite genders, whether, on or off campus.  Penalties for violations may include expulsion or firing.

Lawyer Lea Singh writes, in "Christian Lawyers Are The New Racists": "Support for gay marriage has come to be viewed as obligatory to the point of being a litmus test of whether admission among their numbers will be allowed at all. ... Back in 2005, before same-sex marriage became legal in Canada, supporters of traditional marriage still had the perceived backing of the majority, and our views were treated with (at least feigned) respect and consideration. There were mighty overtures to placate us with reassurances of freedom of speech and freedoms of religion and conscience. ... Less than a decade later, defenders of traditional marriage are being shunned as equivalent, for all intents and purposes, to racists."

Vancouver lawyer Tony Wilson said that in voting to accredit TWU, "Despite being an atheist with 'no horse in this race,' I voted the way I did because of something called the rule of law, which among other things, dictates that courts and administrative bodies like ours shouldn’t cherry pick the laws we like from the ones we don’t. I don’t believe we can choose to disregard the leading case on this issue just because we don’t like the case or we don’t like the covenant. ... [A] 2001 case, from the Supreme Court of Canada, determined that the B.C. College of Teachers could not deny accreditation of TWU’s teaching degree (and those who graduated from such program) because TWU insisted upon a similar covenant from its students. “For better or for worse” the Court said, “tolerance of divergent beliefs is a hallmark of a democratic society.” I believe that the benchers must follow the decisions of higher courts, particularly the Supreme Court of Canada. That’s the way our justice system works. Otherwise the law is nothing more than the political, ethical and unpredictable partialities of one judge, and laws developed in this fashion are neither fair, consistent nor predictable." But by the same token, he said, if the Supreme Court changed the law, he would support changing the bar's admission policy accordingly.

The B.C. Civil Liberties Association, according to Wilson, said "that its commitment to a society in which LGBTQ people are free from unlawful discrimination on the basis of sexual orientation did not give anyone licence to discriminate against others on the basis of their conscientiously held religious beliefs, nor to deny them their fundamental freedoms." Non-accreditation, it said, "would result in unlawful discrimination against and infringement of the fundamental freedoms of those who seek only to be able to study law and be allowed entry to the legal profession without discrimination based on their religious beliefs.”

Lawyers' Rights Watch Canada's letter to the Law Society of Upper Canada offered a very thorough exploration of the constitutional issues. It points out that for non-discrimination purposes, some universities are considered arms of the government and some are not, although in many cases the line is not as clear as one might thing. And likewise, it notes, Law Societies are governmental, because they exercise a monopoly "gatekeeper" power over admission to practice law in their provinces. So I thought it would conclude, from that, that there can be no religious viewpoint discrimination against lawyers in bar admissions. But instead, it argues that the Law Societies have delegated that "gatekeeper" function to law schools, so in effect, the law schools are the "gatekeepers" of the right to practice law, and thus they cannot discriminate against gays and lesbians. This overlooks the fact that any single law school is not a monopoly gatekeeper to bar admissions. 

Comments

Sal Wesson

This is as interesting as it is terrifying. The thought that sexual orientation or gender identity could have any bearing on your ability to be a practicing family lawyer is ludicrous. Religion aside, that is discriminatory and, even it can be misconstrued as legal, sexual orientation is a protected characteristic, just like race, age, or gender.

Sal Wesson | http://www.delaneyanddelaney.com.au/family-law

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