This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.
None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.
The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.
It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.
January 22nd, 2013 | 8:25 pm
It is strange to find an American commenting on the market for legal education in Canada based on what is happening in the U.S. We have far fewer law schools per capita in Canada. Canadian students go to law schools in other countries as they cannot get into Canadian law schools. The dynamics for Canadian and American law schools are quite different.
The author is also unaware that Trinity Western University already won a lawsuit at the Supreme Court of Canada affirming its right to hold community standards for students. The Canadian Council of Law Deans has admitted that the law is on Trinity’s side. as well, the Deans do not have any official role in accreditation.
January 23rd, 2013 | 3:14 am
Janet,
I agree with you that TWU did win the lawsuit at the Supreme Court of Canada. I agree with you also that religious considerations should not be grounds to refuse your application for a law school However, I disagree with your thinking that the US situation is vastly different than Canada for law graduates. I know lots of great law grads and junior lawyers who have been unemployed for more than a year in a market that is oversupplied by law graduates and junior counsel. In Ontario, there is an “articling crisis” not because the number of articling positions has decreased but because the schools are graduating too many JD’s. And the situation is not getting better because the legal marketplace in North America is undergoing a structural change where technology and non-lawyers are reducing the need for lawyers, especially lawyers who work on simple work. The demand for legal labour is actually stagnating or decreasing. Opening a new law school at this time will only make matters worse. Yes, many people are not accepted into law school, but who ever said it was a right for everyone to get into law school?
January 23rd, 2013 | 7:14 am
Canadian students go to law schools in other countries as they cannot get into Canadian law schools
Maybe this is a silly question but what is the purpose of going to a law school in another country? Can one become a lawyer in the US if you go to a Canadian law school or vice versa? Is law sufficiently non-jurisdictionally centered enough so that one could attend law school pretty much anywhere?
January 25th, 2013 | 6:33 am
I am unable to appreciate the reason for not favouring the law school. Does the Dean want all to announce that sex outside marriage is good and all should plan for the same. May God grant wisdom to such highly educated people to discern what is moral and what is immoral
This is the first time I commented
January 27th, 2013 | 9:26 am
Interesting comments and article. I find it rather interesting that we have to constantly bow before the almighty gay rights and same-sex marriage lobby. What exactly are they afraid of? It seems evident that they are already running roughshod over religious liberties etc., both in the United States and Canada. If TWU wants to apply for a Christian based law school, then let them. If it succeeds at all levels, then there is a demand for it. If it does not succeed, then so be it.
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