The travails of a Canadian Christian university's quest to establish a law school may reverberate in the United States as conflicts over legalizing same-sex marriage continue, some educators say.
At issue is whether religiously affiliated law schools with honor codes restricting student conduct to heterosexual marriage could trigger challenges to either a school's accreditation or the ability of graduates to sit for bar exams, or both.
While religiously affiliated law schools in the United States can enforce honor codes, the American Bar Association also requires the schools it accredits not to discriminate in admissions on the grounds of sexual orientation.
Schools such as Liberty University's School of Law in Lynchburg, Virginia, founded by the late Rev. Jerry Falwell, are thus in the crosshairs, being both accredited and claiming protection under the religious school provision.
"It is a concern for the future," said Rena M. Lindevaldsen, interim dean. Liberty's law school maintains an honor code declaring "non-marital sexual relations or the encouragement or advocacy of any form of sexual behavior that would undermine the Christian identity or faith mission of the University" violate the code and therefore subject a student to discipline.
Lindevaldsen, who teaches family law, said the recent California Supreme Court determination that judges in state courts cannot participate as leaders of Boy Scout groups "raises concerns" about what may be demanded of faith-affiliated law schools.
And Michael Peffer, a law professor at Trinity International University in Santa Ana, California, and a senior counsel at the Pacific Justice Institute, said, "We definitely have a concern with the direction of the discussion in our society which seeks to exclude the Christian viewpoint from the marketplace of ideas."
The Canadian conflict
Such exclusion is apparently being attempted in Canada, where Trinity Western University — an evangelical school not related to the California institution — is being challenged in its plans to open a law school next year.
Trinity Western, a 52-year-old institution in Langley, British Columbia, has come under fire for its "Community Covenant," in which students are required to "observe modesty, purity and appropriate intimacy in all relationships (and) reserve sexual expressions of intimacy for marriage."
That provision put the school in conflict with the British Columbia College of Teachers, which in 1996 refused to certify the school's teacher-training program because the sexual stricture might prejudice graduates against gay students. By an 8-1 vote in 2001, the Supreme Court of Canada ruled the provincial group's contention was an "irrelevant consideration" and ordered the program to be certified.
But that didn't prevent the prospective law school from coming under fire. In June, attorneys who were members of the Law Society of British Columbia challenged the society's directors, who had approved the Trinity Western plan. In October, those directors reversed their decision, and the school went to court to challenge that move.
While that case is pending, other legal groups in Canada have also challenged Trinity Western's plans, sometimes without success. This week saw the Nova Scotia Supreme Court declare the province's barristers' society could not refuse to license graduates of Trinity Western's law school because it didn't like the school's covenant.
"The legal authority of the (Nova Scotia Barristers' Society) cannot (be) extended to a university because it is offended by those policies or considers those policies to contravene Nova Scotia law that in no way applies to" that university, said Justice Jamie S. Campbell, who heard arguments in the case in December.
Campbell also dinged the law group's interpretation of Canada's Charter of Rights and Freedoms, under which, the barristers' society said, Trinity Western's code represented illegal discrimination.
"The Charter is not a blueprint for moral conformity," Campbell ruled. "Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state."
American protections cited
The Canadian situation is not exactly analogous to what might confront American law schools, experts note.
The ABA rules recommend candidates for state and federal bar exams must first be graduates of an ABA-accredited law school. The group's accreditation standards stress the need for law schools to be diverse and inclusive in the admission and retention of students, explicitly including sexual orientation.
But the ABA also includes a provision that religiously affiliated schools are not required "to act inconsistently with the essential elements of its religious values and beliefs," so long as such schools do not discriminate in terms of admissions.
That ABA accreditation provision "allows schools to hold (religious) beliefs," Liberty dean Lindevaldsen said. To protect this, she said, requires Christian lawyers to take advantage of "the opportunities that we have at our state bars, and at the American Bar Association" to advocate for the religious provision.
She added another factor is "the need to continue to have individuals in legislatures and courts defend the strength of free speech and free exercise clauses under the First Amendment" to the Constitution.
An ABA spokesman, who asked not to be named, said the group would not speculate on potential challenges to a school's accreditation over a faith-based honor code. The association says its accreditation panel investigates validly presented complaints about violations of the accreditation rules.
The discrimination issue has already reached beyond law schools and into state courts, as witnessed by the California Supreme Court's decision barring state judges from membership in "nonprofit youth groups that practice discrimination," as the Los Angeles Times reported.
The newspaper cited the argument of California appeals justice James Humes, who is gay and who said a 1996 exemption allowing membership in youth groups that restrict homosexuals should be dropped "because it incites distrust in judicial impartiality, demeans gay and lesbian judges and is offensive and harmful."
Forty-seven states restrict judges from joining groups that discriminate, and 22 of these, the Associated Press reported, "include a bar on groups that show bias on the basis of sexual orientation."
William Wagner, also a law professor at California's Trinity International law school, noted an irony in criticisms of schools that hold religious values. "Christian ideas informing public policy ended slavery and advanced the cause of civil rights in America," Wagner said. "Religiously affiliated law schools, therefore, understand the importance of preserving a citizen's freedom of religious conscience."
And Lindevaldsen stressed that while Liberty's law students agree to support the institution's honor code, she teaches her family law classes the importance of fairness. "As an attorney, I should not discriminate on refusing to take clients based on sexual orientation," she said. "We believe all individuals deserve representation."