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The law according to God?

BC’s Trinity Western University Law School requires gays to be celibate or risk expulsion

The law has been a major force in advancing the cause of Canada’s gay and lesbian community. From basic human rights to employment protection to, of course, same-sex marriage, the courts have, in recent years at least, confirmed that gays and lesbians are entitled to equal protection under the law. And as gay rights have advanced, courts have increasingly found themselves balancing those rights against the religious freedom to oppose homosexuality.

But in the most recent case of competing rights, the question at stake is somewhat different. Indeed, it might go to the very heart not just of what makes the law, but of what makes a lawyer. The case—which seems destined to end up in the courts—revolves around Trinity Western University, a private Christian institution in British Columbia. TWU wants to open a law school beginning in 2016. The application has been approved by both the BC government and the Federation of Law Societies of Canada.

But considerable opposition has been mounted to the application because the school requires all of its students to sign a community covenant, which mandates that students abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” In other words, any gay or lesbian students attending the university would have to remain celibate or face discipline that could include expulsion.

The case has raised numerous questions, and most lack satisfactory answers. Should religious freedom include the right to actively discriminate? Should equality trump religious freedom? Can a school that actively discriminates graduate students who don’t, a case TWU has successfully argued in court before when it came to establishing their teaching college. Or is the whole thing a tempest in a teapot?

And there are wider questions that have so far not been raised in media reports or during the debate. If the law school does proceed, what does that mean for the future of the legal profession and for the wider society at large? And should private schools be allowed to teach professional courses, like education, law or potentially medicine? Why should private religious institutions have the right to teach graduates who will serve the public in secular professions governed by secular governments?

In many cases, the public does not have the chance to choose their own teacher, lawyer or doctor. Many people have to rely on legal aid lawyers to guide them through the court system or trust in a crown attorney, neither of whom they have a say in selecting. And in small-town Canada or in an emergency, the doctor you get is often a result of the luck of the draw. Should people not be able to know that such a professional comes from an educational background not dictated by the religious convictions of a private institution? And surely one of the major attributes of a professional school in a public university is that its graduates are exposed to a diversity of cultures and thought, one that would generally include students, including those from a religious background, who are free to be open about all aspects of their identities, sexual or otherwise.

That debate is especially important when it comes to law. The advances in protection and rights achieved by gays and lesbians in Canada—and for that matter by women and racial minorities—have been mediated or granted by the law. Having a school graduating lawyers who, by implication at least, consider homosexual relationships of lesser value than heterosexual ones would seem to go some way towards easing the way to rolling back those advances. At the least, it might very well make it easier to find lawyers prepared to oppose gay rights.

While the school has received the approvals it needs to open, provincial law societies—including that in BC—are still debating whether its graduates should be accredited to practice in their respective provinces. While the situation lacks any precedent, it could potentially create a situation where graduates from the TWU law school are able to practice in some provinces, but not in others.

The opposition, being led pro bono by famed Toronto lawyer Clayton Ruby’s firm, says forcing students to sign the community covenant blatantly discriminates against gays and lesbians.

“The Federation of Canadian Law Societies found that there was no public interest reason to refuse Trinity Western,” says Angela Chaisson, a constitutional law expert at Ruby Shiller Chan Hasan. “But they only look at the curriculum, at whether the courses taught meet their standards. We should abhor their decision. It makes no sense. The covenant is inherently discriminatory. It would be a huge step back from equality. Gays and lesbians should have equal access to the legal profession.”

Chaisson scoffs at the argument advanced by some TWU supporters that the school is not discriminating against gays per se, just against homosexual behaviour, what she derides as “the love the sinner argument.” “It’s a ridiculous argument. It’s like saying you can be black, but you can’t be practicing black.”
The debate, in general and around TWU in particular, is not new. In 2001, the Supreme Court of Canada was asked to rule in a case where the BC College of Teachers had refused to accept graduates of TWU’s recently established teaching college for the same reasons in dispute now. The court ruled then that the college had to accept such graduates as long as they did not display any discrimination in their work. “The proper place to draw the line,” the court ruled, “is generally between belief and action. The freedom to hold beliefs is broader than the freedom to act on them.”

Chaisson believes that the Supreme Court’s ruling in 2001 is not one they would uphold today. And she adds that her firm is prepared to take the case all the way to the Supreme Court again if it proves necessary to prevent the law school from operating.

“That case is not relevant. Thirteen years ago, equality issues in the Charter didn’t get raised. We didn’t have same-sex marriage 13 years ago.”
But that case, says Lyndsay Lyster, the president of the British Columbia Civil Liberties Association, is the primary reason why the BCCLA is supporting TWU in this case, although she stresses that neither she nor the BCCLA agree with the school’s prohibitions. All sides in the debate agree that TWU is able to even propose such a course of action because it’s a private school, even though it does receive some public money, especially in the form of tax breaks. Public universities, however, are covered by human rights codes, under which, all agree, TWU’s covenant would be deemed unacceptable.

“It can be characterized as a case of competing rights and freedoms,” Lyster says. “But we took the position then that the covenant should be no impediment or barrier to students being allowed to teach. There’s an absence of evidence that graduates will act in a discriminatory manner.”

Lyster stresses that the TWU law school will still be required to teach law in a manner acceptable to the profession’s governing bodies: “They have to teach legal ethics and constitutional law and not some weird version of constitutional law. If they’re not going to teach constitutional law properly, that would be a reason to close them down. But a person is certainly entitled to the view that same-sex marriage is wrong. I think a professor, as long as they teach what the law is, is entitled to teach that the law is wrong. And if a student prefers to take part of their education at a faith-based institution, if we accept that like-minded individuals are allowed to gather together, my view is that it’s a basic respect for their own dignity. Under the community covenant, it’s not only same-sex sexual activity that’s prohibited, but also opposite-sex couples outside of marriage. It’s about freedom of association, freedom of religion and agreeing to live by the terms of the community covenant.”

Lyster also argues that attending a secular law school is certainly no guarantee that a graduate will not be homophobic. She says that even after graduating from law school, one is required to take courses from the provincial law society before becoming a lawyer. And she points out that graduates of TWU in other fields have almost certainly gone on to become lawyers. Chaisson, however, sees an inherent contradiction in the school’s position.

“This is not about freedom of religion. They’re free to honestly believe that being gay or lesbian is an affront. But you cross over from belief to conduct when you’re actively barring people from enrolling. And it’s a little ironic to have a school that wants to teach constitutional law insist that gay marriage is unacceptable. It’s like allowing Jehovah’s Witnesses to run a hospital that won’t allow blood transfusions. I think it would allow a really negative precedent. It would really give credence to bigots. There’s also some concern that Trinity Western would become a breeding ground for intolerance, that it would be embracing queer inequality in the name of religion.”

TWU president Bob Kuhn claims in a video on the school’s website that the debate “strikes at the very heart of religious freedom in Canada…. We cannot stand idly by and watch while our freedom of religion is left defenceless, only to be beaten and bullied, ultimately thrown from the public marketplace.”
But if those words sound familiar, it’s because they echo those uttered by religious leaders before same-sex marriage became law in 2005, or before the Ontario government passed anti-bullying legislation in 2012, which required Catholic schools to allow gay-straight alliances to form and to label themselves as such. The anti-bullying law “overrides the deeply held beliefs of any faith community, and intrudes on its freedom to act in a way that is in accord with its principles of conscience,” said Toronto’s archbishop at the time.

But the sky didn’t fall when same-sex marriage passed. Contrary to the doomsday predictions, priests have not been arrested for refusing to perform same-sex ceremonies or charged with promoting hatred for reading bible passages; churches have not been prosecuted for refusing to allow same-sex marriages on their premises. And the Catholic school system has not collapsed because schools have been forced to allow gay-straight alliances, although such groups still face numerous obstacles.

Lawyers take an oath to serve the public. So do doctors. Teachers are entrusted with our children. So why would we want to entrust those professions to those who begin by discriminating against specific groups? Governments in Canada operate by principles of secular democracy because we’ve decided that it’s fairer to the whole population not to follow religious principles in our governance. So surely it’s logical that the bodies those governments delegate to educate the professions which serve the public—teachers’ colleges, medical schools, law schools—should follow those same principles.

“It’s demeaning to the profession,” says Chaisson of TWU’s covenant. And when a lawyer says that something is demeaning, you know it must be bad.

 

“In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

*sexual intimacy that violates the sacredness of marriage between a man and a woman

*the use of materials that are degrading, dehumanizing, exploitive, hateful, or gratuitously violent, including, but not limited to pornography…”

— excerpt from Trinity Western University Community Covenant Agreement:
Our Pledge to One Another

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