Thursday, June 30, 2016

Trinity Western, Religious Education and Equality Rights

There will be those who settle easily on one side or the other of the Trinity Western (TWU) law school issue. As it stands right now, TWU law school grads cannot be certified to practice in Ontario, BC, or Nova Scotia. Although there are various conflicting court rulings on this matter, the Ontario Courts recently ruled against TWU. You can find the story: here. (If you have not been following this issue, TWU is a BC Christian university that has a faith test, as it were, for admission or employment. In effect, one has to promise that one is either straight or  celibate; and not having sex if one is not married. Some provinces have refused to accredit TWU grad on the grounds that the university discriminates against LGBTQ.)

The question is: should the court have ruled in this way? Ontario is the big lawyer prize, after all. I think TWU would view it as a problem if BC and NS were not on side and would continue to press for accreditation but Ontario, well, that is a big hunk of the market since TWU seems uninterested in Quebec. The other provinces have agreed to accreditation, although the matter is far from settled in some provinces and I expect this story will not end until the Supreme Court decides whether or not it will hear the case and, if it does, until there is a verdict.

The easy answers come from simplifying the issue. Those who support TWU argue that they are just an educational option -- something similar to Crandall with a law school -- and that freedom of religion (which is actually freedom of conscience) protects their students. Hence, even if TWU has some strict rules that intrude on people's personal lives (something other universities do not) and which, de facto and I believe intentionally, discriminate against LGBTQ people ... well, that is, say its proponents, just a matter of worship in which the state should not be involved.

Hold it, say TWU's opponents. Religiously based schooling is problematic precisely because it is discriminatory. Look at what has been going on in the US where the evangelical offensive has limited equality rights and promoted some odd sets of views that seem to say it is OK to discriminate against people as long as you do it for religious reasons. Do we really want that in Canada? Moreover, should a lawyer -- a member of the bar -- sworn to uphold the Constitution and the Charter actually be in a position where they support a law school that denies Charter rights? Is that not a bit too much to swallow?

One of the bigger issue is one I touched on some time ago: how do Christians make a place for themselves in a late modern pluralistic society where their views can no longer be taken for granted and where they, themselves, cannot influence public policy the way they used to? This is not an issue that would have been an issue, say, 50 years ago simply because every university would have accepted -- at least discursively -- the place where TWU now stands. What does that place look like? I tried to suggest that one approach Christians had taken was to create parallel institutions and then try to claim that their institutions allowed them full participation in society writ large. Thus, their schools -- even if they discriminate -- should be taken as the same as any other school. I'm not sold on this as a prescription, but it is one approach that Christians have taken.

I suspect that TWU has a long road to hoe on this one. Why? Well, because TWU is -- without recognizing it -- playing with fire. They are so convinced that this issue is about them versus secular society and efforts on the part of someone in secular society to deny them equal rights that they are missing the bigger picture. I'll argue below that the Supreme Court needs to take that bigger picture into consideration if it gives leave to TWU to hear this case. In fact, it is the Supreme Courts job to look at the bigger picture.

On the other hand, I can't agree with those who dismiss TWU out of hand either. TWU is doing nothing wrong by using the legal channels to advise its case. We might disagree with them -- I have some serious problems with discrimination as I suspect most of the people reading this blog do -- but citizens have the right to use the courts and to advance any argument they so choose. Rosa Luxembourg once said that freedom is freedom for the other. That is, the test of our commitment to democracy was not our insistence on the exercise of our rights but our willingness to ensure and protect other people's rights. Thus, if we are interested in rights, we need to think about our willingness to defend the rights of others with whom we disagree ... and perhaps passionately. I have limits (and I've spelt these out before and so I won't again) but the TWU folks and their advocates have obeyed the law and attempted to make their case in a reasoned and legal way that is -- they at least allege -- consistent with the Charter. We cannot, then, fault TWU for doing what we expect citizens to do in a mature democracy: use peaceful, legal, reasoned and constitutional means to voice decent in an effort to get change in specific laws.

(Nor do I think that this one case will transform Canada into Alabama or even Indiana. The political culture, electoral system, etc., is so different that we Canadians are not about to run into the problems with the denial of rights that has occurred in some states in the US.)

This said, the other bigger issue is likely the one that most people want to talk about: should TWU be accredited? The answer to this question is complicated by three factors:

1. A denial of accreditation affects graduates and not necessarily the law the school and the people who run it. Accrediting the school means allowing graduates to practice law in that province. This is important to note because we do not necessarily know what those graduates themselves think.  Safeguards could be put in place to ensure that our legal profession in each province does indeed support the Charter. Private firms have the right to hire who they will and they would be completely -- as far as I can tell -- at liberty to say to a prospective hire "look, we need to know that you support the Constitution and the Charter and that means that you must be committed to equality. We hire women, we hire straights and gays, we hire on merit, not on faith. If we are going to hire you, we need to know that you are on board with that. Are you? You will not use your position here to place this law firm in the awkward position of standing outside the law."

Private firms can ask that because they are spending their money. They are not refusing to hire anyone on the basis sex or faith or anything. Instead, they are making a commitment to the Constitution a condition of employment. And, to be honest, if I ran a law firm, I'd want to know that my co-workers were committed to the law that they are supposed to be upholding and sustaining (all lawyers must agree to uphold the law in order to practice).

Said differently, I am not 100% sure that we should judge the lawyer by the school from which he or she came. I've said this before but it goes double for law schools ... we don't know why some people chose particular schools and we don't know their views. I go to a church that has made a strong commitment to ensuring that religious education gets the same funding as the public system. If you've read my blog, you know that I'm far more ambiguous on that issue and I don't want to be judged by what others in my church say, particularly when I disagree with them. So, before we scratch TWU off the list -- and we might end up doing that anyway -- we should pause and think that we might be scratching people off the list who actually share our views. Is that a good thing to do?

The state can make the same qualifications requirements of the job, but more so. My wife works in the NS Public Prosecution Services and they have an even higher burden to maintain the law than those in private practice. They cannot reject the Constitution because they are the ones who are supposed to uphold it. Thus, the state can say to prospective new lawyers: look, you have to uphold the Constitution and that means that you will have to defend equality for gay people and -- potentially -- argue against funding for religious institutions like the one from which you graduated or you might have to take the same side as gay and lesbian plaintiffs against discriminatory religious institution (FYI, I don't believe this is going to happen but follow the argument). Can you do this? Said in other words: the state is more than at liberty to say "we're in the Charter enforcing business and we can only hire lawyers who are in that business. We are the state. We have to treat everyone equally and personal religious perspectives are not good enough to opt out of that obligation."

2. The second thing that we need to bear in mind here as a complicating factor is that, unlike Crandall, TWU's faith-based requirements really might impose some level of material harm on LGBTQ people. There are, by design, only a limited number of law school positions in Canada. If a certain percentage of those are not accessible to LGBTQ people and only accessible to those who mirror the faith-based criteria of TWU ... then, we do have a more substantial problem than a small primarily undergrad institution like Crandall, where substitutes are readily available.  In effect, Christians are saying that a percentage of the legal profession will be de facto reserved for them and will, de facto, exclude LGBTQ people.

Since, as I have explained previously in this blog, the law in Canada must work in a way that promotes equal benefits (and I explained why previously), this is something more than a minor issue. In effect, to accept TWU's claim is not simply to allow freedom of conscience, it is to allow a situation where there is *not* equal benefit of the law. Christians are not prohibited from applying any law school in Canada. They are not required to abrogate their faith to attend those schools or to enter into social or marital or sexual arrangements which contravene their faith. They may -- for their own reasons -- prefer to attend TWU but those are personal reasons, not legal ones. The fact is this: neither Dal nor UNB nor any other law school has an admission requirement that prohibits admission to straight Christians (the TWU market). Thus, we have discrimination one way but not the other.

What I am trying to say is this: TWU is not simply asserting freedom of conscience, something I can get behind, as I suspect can most people, but they are a legal institution that is engaging in a practice that is denying equal benefit of the law.  This does not mean that the Supreme Court will rule against them but it does, in my view, damage the case they are making.

3. The third complicating factor is precedent. And, I suspect that this may weigh heavily on the Court's mind (because, of course, it has to since their rulings establish precedents). Several years ago there was a bit of a stink about Sharia law in Ontario. It was never a serious option (we don't need to get into the details) nor a seriously considered option, including by the vast vast majority of the Muslim community. But, it briefly incited a significant debate about the boundaries between religion and the state. My view at that time was that religious groups did not have a right to call on the state to enforce religious laws that stood outside the criminal code or civil or administrative or regulatory or constitutional, etc., law in Canada.

What TWU needs to think about -- why I think they are playing with fire -- is that they are moving to establish a precedent that I suspect they will regret trying to establish: religion in law is OK and discrimination is OK if you can claim it is religiously based. TWU's case, in other words, is that their discrimination is based in faith and therefore protected by freedom of conscience. The state, IOW, must protect and facilitate the very thing that upset people about Sharia law. The state can be called upon to enforce religious law: in this case allowing accreditation to a legal educational institution that denies equal benefit of the law and -- apparently -- rejects the equality provisions of the Charter.

Because the Canadian state must treat people equally, the state cannot, then, deny rights to other groups that it upholds for TWU. Just about anyone can, then, provided they use a religious defense, create institutions that discriminate and the state must accept and accredit its graduates. What if that freedom of conscience meant prejudice against black Canadians (don't say "no way" Christianity does not have a good record on slavery), or Native people, or that women should not have certain jobs (I know Christians who fundamentally believe that women should not be in leadership roles and can site scripture to that purpose) or ... the converse: an atheist who believes that Christians should be second class citizens and denied equal rights?

Said differently, TWU thinks it is defending its rights and the rights of its graduates but it is doing something, the implications of which are far broader and deeper than they realize. They are, as it were, asking the court to legalize Sharia law. And, as Canadians, might ask: are we happy with that?
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