Douglas W. Judson
TWU believers bear false witness
This column originally appeared in the Canadian Bar Association's National magazine and the Ontario Bar Association's JUST magazine. |
In late April, the Ontario and Nova Scotia law societies voted to withhold accreditation from the proposed law school at Trinity Western University (TWU), while B.C. lawyers successfully requisitioned a general meeting of their law society to reconsider its decision to accredit the school. In provinces where the school is not accredited, graduates would not be able to pursue articling positions or write the bar exam.
The controversy stems from TWU's Community Covenant Agreement, which requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” The policy plainly discriminates on the basis of sexual orientation, against lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals. Its breach carries disciplinary sanctions, up to expulsion.
In response to the law societies' decisions, TWU supporters have levelled illogical and misleading criticisms at their opponents. Sadly, these claims of anti-Christian discrimination are not rooted in coherent principle, but falsehoods designed to skew public sympathy.
First, no one seriously claims that a Christian university is incapable of educating competent, ethical lawyers or that religious students are unfit to become lawyers.
In the aftermath of the law societies' decisions, TWU proponents claim that the refusal to accredit the school is an act of bigotry and intolerance towards Christians. This is nonsense, crafted to evoke the sympathies of those unfamiliar with the issue and those that long for the bygone days of Christian moral hegemony.
Let's be clear: the law societies did not decide that a Christian university was an undesirable venue for a new law school or that its graduates would be unfit for legal practice. The respectful discussions that took place in Ontario and Nova Scotia do not snub religious freedom. The issue before the benchers in both provinces was whether they could accredit a law school with policies that exclude certain groups from a pathway to joining the profession - in this instance, institutionalizing discrimination against LGBTQ individuals.
What the decisions do indicate is that erecting a barrier to the legal profession for a specific minority group would be inconsistent with the law societies' public interest mandate. No one denies that TWU is capable of delivering a quality education or suggests that its graduates would not meet the competency or ethical standards of the legal profession. Christians have not been "blacklisted" from the profession - rather, archaic TWU policies have. Such accusations are, at best, exaggerated victimhood, and at worst, self-righteous demagoguery.
Second, TWU's legal references are outdated and incorrect.
TWU insists that this issue was decided by Canadian courts in their 2001 suit against the B.C. College of Teachers (BCCT). This is false gospel. BCCT decided whether teachers who graduated from TWU would discriminate when they entered their profession. No such allegations have been made about future TWU law grads. The issue here is whether a law society can accredit a law school that discriminates with respect to those who are able to attend the school - imposing a 'queer quota' on Canada's law school admissions.
While the BCCT parable is a stretch, it cannot be ignored. However, Supreme Court jurisprudence has significantly progressed over the past 14 years. In the 2013 case of Whatcott, the Court unanimously departed from the “hate the sin, love the sinner” rationale adopted by TWU in 2001. It embraced Justice L’Heureux-Dubé's dissent in BCCT: an institution cannot condemn a practice central to the identity of a protected and vulnerable minority without discriminating against its members. Here, banning sex between LGBTQ individuals effectively bans LGBTQ individuals.
Further, the 2012 Supreme Court decision in Doré imposes an obligation on law societies to apply the Charter of Rights and Freedoms and human rights codes when they make decisions.This means that private religious organizations can adopt membership rules that reflect their beliefs, but the government and other organizations operating in the public interest may not approve such rules if they are discriminatory. The College of Teachers was under no such express obligation in 2001. As such, TWU can have a law school, but law societies must operate in the public interest and cannot rubber-stamp a discriminatory pathway to their profession. Freedom of religious belief does not entitle the believer to infringe upon the liberties of others. In practicality, a private institution must adapt its policies and practices if it wants to be accredited by a body operating in the public interest and that must uphold Canadian law and public policy.
Of course, one would hope that an institution seeking to instruct the law could muster a fair representation of its evolution over the past decade and a half. TWU’s chief advocate, their President, worked on their 2001 case and should be aware of that decision’s limitations. Apart from this, the tremendous advancements in the recognition of LGBTQ rights since 2001 may have seen BCCT decided differently today.
Third, by insisting on a binary "us versus them" debate, TWU undermines its own claims of safe space and tolerance.
By continuing to characterize the decisions as a slight against their interpretation of Christian morality, imposed by heathen outsiders, TWU compromises its own suitability for a law school. This fear-monger strategy is unbecoming of an institution that has spent the past year glorifying its record of acceptance to win over law society support.
TWU's insistence upon this homily exposes its innate hostility to those that cannot adhere to its Covenant and suggests an incapacity for tolerance. Their contradictions are manifold. TWU invokes Canada's pluralistic society to justify discrimination, as if they are natural corollaries. TWU claims acceptance, while framing the debate as if Christians and gays are mutually exclusive groups, shortchanging the real challenges still faced by LGBTQ individuals and leaving no doubt about who is unwelcome or lesser. TWU supporters conflate their perceived loss of privilege with de facto discrimination. Petitions such as TheRealBigots.com have arisen online, drawing more "us versus them" lines in the sand.
These assertions lend credence to the affidavits of TWU's gay alums, like Jill Bishop, who writes, "I did not feel able to raise other perspectives on homosexuality. I felt a real risk of expulsion." These are not the words of openness and diversity that should herald the creation of a new centre for legal thought or a safe environment for young people to grapple with the stress of law school.
Moreover, the inference that TWU's rejection by the law societies is the work of powerful secular zealots amounts to hogwash. Following some initial concern from Canada's law deans, the TWU issue first entered public awareness in spring 2013 when students sounded the alarm to the Federation of Law Societies of Canada. Since then, a diverse range of young lawyers, LGBTQ persons, allies, and individuals from groups that have experienced discrimination have been engaged in the discussion and debate - petitioning law societies, writing benchers, and pushing 9 law school faculties to speak out. These motley sinners are hardly the image of elite, godless conspiracy or the bogeyman of "gay fascism."
In sum, the pro-TWU response to the law societies' decisions is disingenuous. There is no assault on religious freedom. Such uncompromising and divisive rhetoric has ceded the high ground to opponents who have been guided by principle – the principle that accredited law schools ought to provide equality of opportunity without discrimination to all qualified individuals. The approach of TWU critics has been forthright and truthful, informed by the historical disadvantage of some groups in the legal profession and society.
These principles of equality ought to be codified with law society policies on non-discrimination in legal education. The absence of such a framework provides a podium for airing prejudice and perpetuating antiquated and hurtful views about minorities whenever an accreditation request arises. The process itself has exhausted tremendous resources to reach an outcome that should have been clear from the beginning. While both law societies have taken the right course of action, their close votes provide far too much comfort to holdouts of hatred on widely-accepted legal principles of equality.