I looked at him with sympathy. It was an emotion I had not anticipated feeling upon seeing Bob Kuhn in person.
The Trinity Western University president had been on a national tour, ardently beating the drum before provincial law societies to justify his school’s beloved covenant, which requires students to uphold the traditional definition of marriage. This stop in New Brunswick on June 27 would be no different.
However, his impression in the flesh did not live up to the passionate Christian Evangelical I anticipated from studying his quotes to the media and looking at his youthful image on the university’s website. With his motorcycle helmet in the foreground, Kuhn is photographed on a patio taking a break during a tour across the United States. Dressed in black, his sunglasses hanging from his shirt, Kuhn looks off into the distance, grey hair and beard framing his handsome face. On this day, however, he looked aged and tired, sluggishly approaching the podium to address the Law Society of New Brunswick (LSNB) council.
A tremor in his right arm was noticeable. I assumed it was nervousness but was corrected when Kuhn revealed that the shake is a result of Parkinson’s disease, which his medication couldn’t temper given an early-morning arrival in St Andrews because of flight delays.
I felt sympathy for Kuhn. This would not help the debate. I was in St Andrews, New Brunswick, for the LSNB’s annual meeting in my capacity as the chairperson of OUTLaw, the University of New Brunswick law school’s society for LGBT students and allies. Since April, Kuhn and I had been positioned as adversaries by the province’s news media and now was my opportunity to dismantle his discriminatory arguments before the law society.
As he trembled, succumbing to his disease, using his left hand to turn the pages of his speaking notes, my sympathy for my opponent, grew. His condition made me consider my own father’s aging and health. But as he spoke, I got my head back in the game. Because unlike my father, Kuhn is intent on sidelining the realization of equality in Canada.
“We’re not for everybody,” Kuhn said, validating the blatant discrimination of his school before launching into the merits of religious freedom, which he conveniently distorted to bulldoze equality rights. He bolstered his argument with the 2001 Supreme Court of Canada decision in Trinity Western University versus the British Columbia Federation of Teachers, which found in favour of the university given insufficient evidence that graduates from its teachers’ college would produce inferior instructors.
This thinking fails to see the blatant unfairness of a perniciously discriminatory covenant that bars gay students from one of a limited number of spots in a Canadian common law school. Further, it ignores the more recent Supreme Court decision last year, in Saskatchewan Human Rights Commission v Whatcott, which distinguished between belief and conduct, upholding the freedom of beliefs but limiting conduct motivated by those beliefs in the event they discriminate.
I resisted sighing as Kuhn continued. A professor had advised I not roll my eyes, whisper profanity under my breath nor post comments on Twitter during the meeting. Maintaining decorum would serve as good practice for when I am a lawyer, he said.
So, instead, I studied the members of council and their diversity. Made up mostly of white men, there were some women and one member of a visible minority. I contemplated how that would affect the vote.
The Law Society of Upper Canada and the Nova Scotia Barristers’ Society had sent Kuhn packing, refusing to accredit his law school graduates with a covenant that discriminated. They looked beyond the 2001 Supreme Court of Canada decision and adopted the 2013 decision emphasizing beliefs and conduct.
Those votes, particularly by Nova Scotia next door, indicated that the tides are turning in the Maritimes, where being gay isn’t easy. Ask Colin Briggs of Fredericton, who was turfed as a church volunteer last August when he came out to his minister. Ask openly gay Scott Jones, who was left stabbed and bloodied on the street in New Glasgow, and remains paralyzed, at the hands of Shane Matheson, who Jones insists was motivated by hate. Ask the staff and students at Leo Hayes High School, whose request to New Brunswick Premier David Alward to raise the rainbow flag at the legislature to mark the school’s Pride event was denied.
At the close of Kuhn’s one-hour presentation began a handful of public remarks, each limited to 10 minutes. Kuhn would get yet another 30 minutes to respond. Looking back, it was a curious apportionment of time by the law society that favoured TWU.
I was sandwiched between several distinguished and powerful advocates speaking against accreditation: Lauren Cicin, practising attorney from Saint John and chairperson of the Sexual Orientation and Gender Identification Chapter of the New Brunswick Bar Association; Karen Pearlston, law professor at the University of New Brunswick; LA Henry, openly gay Fredericton attorney and former instructor at St Stephens Christian University; and Ronald MacDonald, a former president of the Federation of Law Societies of Canada.
Their passionate and measured remarks inspired me. Confident in my own arguments, I became convinced that we were convincing.
Two days prior, the same professor who instructed me to maintain a poker face helped me reframe my arguments. “I don’t want your arguments to be dismissed,” he said. “I want them to be strong and for Bob Kuhn to have to deal with them in his rebuttal.”
And he did. Kuhn referred to me as his “friend from OUTLaw.” I winced inside but remained stone cold. I cannot imagine what I, an out gay man, would gain from a friendship with Kuhn, who sees me as a second-class citizen, undeserving of the right to marry. “You are not my friend,” I thought to myself.
Kuhn made a point of establishing to the members of council that I am not yet a lawyer, as if my arguments — which reflect the position of thousands of law students — were less credible. He proceeded to distort my reasoning, likely in the same way he feels I distorted his.
Before deliberations among the council members began, a fellow advocate leaned in to me. “This will be painful,” he said.
Those who favoured accrediting Trinity Western to uphold the rule of law made a point of expressing their discontent with the law. “It makes me ill,” said one member, feeling obliged to vote in favour. But she and others accepted the offensive covenant, following the rule of law over protecting the public interest.
Among the council members, there were redeeming voices of opposition. “Would we be having this conversation if TWU said a black person can’t come to this school? Or, if TWU said a woman can’t come to this school?” Moira Goodfellow asked. “It’s unlikely we would be sitting here having this conversation if those were the issues under consideration.”
“It’s quite clear to me that the Supreme Court of Canada is looking at life differently in 2013 than it looked at it in 2001,” council member Richard Williams said in his opposition to accreditation.
However, these positions were in the minority. Upon completion of the 14 to five vote tally, LSNB president John Malone addressed members of the council. “I’m proud of you,” he said.
I am not proud of the decision. New Brunswickers and Canadians committed to equality should not be proud either.