I was supposed to give this essay as a presentation in a Political Science class last week, but the professor actually forgot I was scheduled for a presentation and told me (after I’d spent all weekend preparing) that he was delaying it for a couple weeks. Unimpressive as that was, I do have to thank him for giving me the incentive to finally put in the research on the Trinity Western University law school debate (and ensuing controversy, witch-hunt, debacle, farce, gong show, and snake-handling fiesta).
In June 2012 TWU submitted a proposal to establish a law school to both the British Columbia Ministry of Advanced Education and the Federation of Law Societies of Canada. A positive response from the Ministry was needed to allow the university to create the new school, while a positive response from the Federation was needed to allow TWU grads to be recognized as fully accredited lawyers in Canada. The proposal was to establish a three-year ‘Juris Doctor’ (law degree) for 60 students per year with the first class graduating in 2016.
TWU was granted preliminary approval by both the Ministry and Federation in December 2013, meaning that the law school met all legal requirements on both academic and professional fronts and would move forward without further legal impediment. Right?
What’s actually happening is that TWU is daily coming closer to being embroiled in the institution’s second major legal battle over the opening of a new program in 15 years. The controversy surrounds the TWU Community Covenant, which all students are required to sign and includes the following statement:
“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.”
For those who don’t speak Christian, this means that sex is great within a committed heterosexual marriage, but single students are expected to remain abstinent. It also means (and herein lies the controversy) that sexually active married queer students are unable to sign it in good faith and therefore cannot attend TWU. On a more general level, the covenant is only a part of TWU’s commitment to being a Christian evangelical university, and therefore observers are worried that the covenant is only one aspect of the overt discrimination that queer students will face if they attend TWU’s law school.
I’m not going to say the worries of these observers are unfounded. While TWU maintains a policy of respect and tolerance for all students, and does a wonderful job (in my opinion) fostering safe and open student discussions on many topics, the theological commitment of the university does discriminate against queer individuals by denying them the choice to pursue same-sex romantic relationships.
For many people, this admission is essentially a ‘Game Over’. It’s holy writ in our culture that ‘discriminatory’ equals wrong, and wrong is just wrong plain and simple. Ironically, ‘wrong’ is a value judgment, not a legal one, and these people don’t appear to understand that the folks at Trinity are making a value judgment as well — that same-sex marriage is ‘wrong’. Using this line of thinking, the TWU folks actually have a better argument considering they can base theirs on theological absolutes, while inherent cultural subjectivity denies such absolutes to their opponents.
But that’s all really beside the point. What various groups define as ‘wrong’ doesn’t matter unless their view gets enshrined in law, since ‘unlawful’ is the closest thing to an absolute a liberal democracy can attain.
So is the discrimination practiced by TWU unlawful?
Not at the moment (although even ‘law’ is a fluctuating concept as it relies heavily upon precedent and interpretation). In 2001, after TWU proposed a school of education, the university was sued by the British Columbia College of Teachers over the same issue. In question was the right of TWU as a private Christian university to exercise its religious freedom, pitted against the right of queer applicants to exercise their freedom from discrimination. The Supreme Court ruled in favour of TWU, with the decision stating:
“…It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities … Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.”
A deeper concern in both the 2001 case and the recent controversy is the potential prejudicial bias engrained into TWU-trained teachers and lawyers by the discriminatory practices of the university. While this is a legitimate concern, we’ve now had ten years to evaluate the conduct of TWU-trained teachers, and have yet to find any significant or reoccurring problems with their conduct in the classroom. Obviously, denying Christian teachers jobs or accrediting because of their potential bias is itself a form of discrimination, as Regent professor and political scientist John Stackhouse argued in a recent opinion piece in The Globe and Mail:
“The fundamental argument seems to be that since TWU law graduates will be trained in an environment disapproving of homosexuality, they can be presumed to graduate as disapproving of homosexuality. They therefore must be incapable of serving as lawyers for homosexuals …This argument is nonsense. Lawyers routinely represent clients who act in ways that not only diverge from their own values (as in, say, their choice of sexual partners) but actually appall their counsel: theft, drug pushing, fraud and murder. All of those lawyers graduated from law schools that can be presumed to frown on such behaviour. Yet lawyers are trusted to provide services to those who act in those ways.”*
Opposition to the TWU law school has come from a number of sources and in a number of arguments. Some equate the university’s community covenant restrictions to historical cases of academic prejudice against Jews or blacks, hoping that the precedent set in the 2012 Whatcott case will smooth over their laughable logic. A more reasonable assertions is that made by Elaine Craig, a Dalhousie law professor and vocal critic of the TWU law school, who wrote the following in her own Globe and Mail piece:
“In the 1990s, the British Columbia College of Teachers expended the energy, money, and political capital required to resist a policy of discrimination against gays and lesbians perpetuated by Trinity Western University’s community covenant…The legal status of gays and lesbians in Canada has improved. Striking the appropriate balance between freedom of religion and equality for gays and lesbians today requires greater recognition of gays and lesbians than it did fifteen years ago. Freedom of religion would not trump these equality interests as easily as it did when the College of Teachers case was decided.”
This is a much better argument than simply saying TWU is ‘wrong, because, as I’ve stated above, ‘wrong’ doesn’t matter so much in a liberal democracy as ‘legal’. Many groups in Canada have different definitions of what ‘wrong’ entails, yet it would be unlawful for any of those groups to enforce their values over the rest of us. That said, the law is also in a constant state of flux, and does undergo significant changes over time. Craig and the other opponents of the TWU law school are aware that there aren’t grounds for a legal case against TWU as the law and precedents stand, but they are hoping that changing social conditions will persuade the Supreme Court to alter the interpretation of the law to favour personal freedoms over religious freedoms. This would of course be a disastrous precedent for those of us who happen to be part of conservative religious communities (and would also be a violation of the Charter and Bill C-38), but I’ll get to that in Part 2…
*If you finish reading this quote and are immediately appalled that Stackhouse compares homosexuality to fraud and murder … you don’t actually understand the quote. Go back and read it carefully this time.