Wednesday, June 11, 2014

Trinity Western and Equality Rights

There is something odd about using "rights" based arguments -- particularly the discourse of a "good" society "protecting" "minority" rights -- to argue for the legitimacy of discrimination. This news story provides the basics:

Trinity Western - CBC

Earlier this year, I wrote an extended blog that addressed the issue of whether or not a specific individual should be accommodated on the basis of their religious views with regard to taking a class with women. Those who recall that story (and, perhaps, my blog) will recall that I argued that York should accommodate that individual. The argument I made was long -- so long, in fact, that I can't even précis it here -- and if you are interested have a look. The logic is important and one of the important things about that long argument is this: rights cases cannot and should not be reduced to sound (or, text) bites.  Particularly (but not exclusively) in controversial areas, we do need to think through problems. And, we might find, that in so doing we are led to conclusions that we might otherwise not like ourselves.

What about Trinity Western and its faith-based educational mandate that prohibits openly gay people from attending that university. Should its law school have accreditation? This is a matter of debate in a number of different provinces. It therefore merits some attention. My view, to be up front about it, is "no." Exactly why is a matter I will address below but I'll offer the same proviso: the argument is important. For those who disagree with me (perhaps members of my church who read this blog), I'd urge you to follow the argument and state your case in the comments section.

I see several important issues in this regard:

1. TWU is making an interesting argument and it is an argument that, I believe, will sooner or later end up before the courts and likely will require a Supreme Court decision. According to this news story, TWU is planning on taking its case to the courts. I had thought we were past those days with regard to same-sex equality, but it appears not and this might not be a bad things. Bear with me. I am not trying to argue that trying to advance  discrimination through the courts is good. I don't think that argument can stick. What I do think it is that it is good for a democracy that people use the courts and TWU has every right to do so. I'm not going to spend any time defending that right because it is a right of citizenship. But, the point I want to make is that we should respect (if not defend) that right.  We should not impose, I argued in the past and still argue today, a religious means test on citizenship.

2. This does not mean that TWU has a good case. They have the right to make the case; they don't have the right to "win" the case. The Trinity Western is involved in a different situation than other instances of seeming discrimination that I have -- to be frank about it -- defended over the years. I have argued, for instance, for the right of private institutions to regulate their own space (say, with regard to universities refusing to allow certain people to speak; or the right of religiously-based institutions to apply for government grants). The case of TWU's law school, however, is different because TWU graduates are required -- if admitted to the bar -- to be officers of the court. They are required by their occupation to defend equalities rights. It is, at the very least, a bad statement to admit people to the defence of those rights who come from an institution that explicitly rejects them. I say "at the very least" because I do not know about the graduates. They might be good people -- I bet they are. The issue is institutional practice. Would we accept an application from a law school that prohibited Jews? Or, that admitted only white people. There are religious bodies that believe it is there religious right to practice such overt forms of discrimination.

This is not a reductio ad absurdum argument. I have argued that we need to look at the specifics of rights cases. We cannot -- and should not -- easily generalize because we lose track of the specific issues and individuals involved.  I am not doing this hear because law, in Canada, works on precedent. Once a precedent is established, it is binding. Thus, in law, if we establish the precedent that discrimination is legitimate, we start to run into a dangerous ground. If we start to say that religious-based modes of discrimination can be accepted in civil society, we will have a difficult time specifying where they end.

3. Deciding this case will involve consideration of a number of issues. These include: (a) whether or not a prohibition on admitting TWU students amounts to a prohibition on evangelical Christians practicing law (the simple fact that someone sets up a law school, does not give them the right to accreditation) (b) whether or not TWU prohibitions amount to discrimination against gay and lesbian Canadians in a way that promotes unacceptable barriers to entrance to a profession on the basis of irrelevant characteristics (in other words, TWU count argue that its discrimination is legitimate because straightness is a precondition of being an effective lawyer or judge ... OK, a weird argument you get my point), (c) how rights under the law in Canada should function. All Canadians have the right to equal benefit of the law. Should that right be interpreted in a way that advances equality or detracts from it? (d) whether or not TWU can claim religiously-based rights when trying to operate as part of secular society? In other words, TWU is not simply making the argument that they have the right to regulate their own space. I would likely defend this argument. They are arguing that they have the right to carry the regulation of their space into civil society -- beyond the borders, as it were, of their space. Do they? It is, I think the courts will ultimately decide, one thing to be a religious institution. What TWU is arguing is not that they have that right: they do. They are arguing something different and that difference is important. They are arguing that they have the right to ignore the Charter in civil society and in the course of the administration of justice. I don't see the courts agreeing with that. Indeed, I'd be deeply concerned if they did.

Finally, aside from the legal issues involved there are a couple of other matters that bear consideration with regard to this case.  

First, I clearly misjudged how deeply some evangelical Christians feel about this issue. And, I will confess, I am confused by it. I just don't get why self-identifying evangelical Christians consider this issue -- same-sex equality -- to be a "hill to die on." Spoiler: I self-identify as an evangelical Christian. There is shockingly little scripture on this issue and what there is, is contested. Don't believe me? Good. You shouldn't. You should go check it out for yourself. Read the red letters in your Bible (the red letters are the things that Jesus said). My church has just been going over the Sermon on the Mount and I've been teaching it in Sunday school. It is a good place to start. You'll find a lot in it about caring for the poor, about having a positive influence on people, about not being judgemental, but ... you'll find nothing about discrimination. Have a quick look at Micah 6:8. Here the prophet is pretty specific about what God wants people to do. There is so much for Christians to be doing ... why is this issue of such defining importance to them? Why "hang your hat" on a divisive and problematic aspect of your theology?

Second, there is an odd irony in this --the TWU --  position that has a potentially important historical effect. The issue the courts will be called upon to decide is whether or not the right to freedom of conscience extend to discrimination against already marginalized and disempowered groups? This is, of course, the argument I have been saying over the years does not exist. Consider, yet again, the argument made against same-sex marriage: it contravenes the right of religious freedom. At the time I argued that it did not. Same sex equality was a right under the state and in civil society. I argued that it did not -- and count not -- bind individual churches (as private institutions) to engage in practices that were counter to their theology. The state had to accept same-sex equality (and, for the record, it should have embraced rather than fighting same-sex equality), benefits had to be equal, protection had to be afforded to ensure security of the person, etc. But, individual churches could still make up their minds about their character and nature of marriage rights. Moreover, I argued, no one who supported equality was trying to bind individual churches. The whole issue was a red herring. Gay and lesbian Canadians were looking for equality in civil society and under the law; not in my church. The irony is that the evangelical Christians have, in fact, engineered the same thing that they accused equality advocates of promoting: the legalization of Christianity. In other words, what TWU is doing is actually promoting the increased state regulation of Christianity, something the advocates of equality -- myself included -- never dreamed of doing.
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