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?

Where Rights Collide? State Support of Religious Education

If there is no attack on religion in New Brunswick and if the "free tuition" problem confronted by Crandall University is -- at least in good measure -- a problem of its own making, can Crandall still make a claim that the policy should apply to its students? In other words, even if the analysis of where the problem comes from is wrong, could the proposed solution -- to extend the policy to Crandall students -- be correct? There are those who will immediately say "yes" and those who will immediately say "no." The "no" side argues that the state should not be in the business of funding religious education, particularly if it is is exclusionary and discriminatory. If Crandall (or, any other institution) wants to offer courses, that is its business, but the state should not support institutions that deny the basic rights enshrined in the Canadian constitution. Those who say "yes" are equally vehement. Crandall offers an educational choice. Why should the state impose its values (the merits of at least some of which they question and suggest might not be as widely held as some people think) on particular institutions? Does it not impose a religious means test on the institutions of our society (those who don't conform to particular state-sanctioned views, don't get funded) and contravene freedom of conscience?

What I want to suggest is that both views have merits and don't. The issue is more complex than quick answers and the quick answers that the proponents of either side offer miss important issues that should be considered. My goal in this blog is to address these issues. I don't think that by so doing I will actually bring clarity to this matter. In fact, I might confuse it more. But, confusing it more might be what is actually needed. What are the complications?

First, the distinction -- as I tried to indicate in a previous post -- between Crandall and other institutions is not as great as one might think. For one reason or another, both the proponents and opponents of Crandall paint it as different, out of step with the rest of the province in terms of post-secondary education. I cannot speak to how different subjects are taught at Crandall but in terms of its relationship with the state, the distinctions are often more matters of degree than kind. Crandall, for instance, can and has benefited from state grants. It does not obtain regular operating financing from the state -- which, again, is its choice -- but over the years its obtained grants in lieu of taxes from the municipal government and infrastructure grants from the federal government. There may be others but those are the two that I am aware of. Its students can also take advantage of tax credits in the same manner as students at any other university, there is a process to transfer credits, its BEd students become teachers in the province so there don't seem to be any problems with certification at the provincial level, and its benefactors can also take advantage of tax credits as Crandall is a registered charitable institution. This, too, of course, is similar to so-called "public institutions."

If we put all this together, in other words, the sharp distinctions that paint Crandall as unique in *not* benefiting from state programmes needs to be qualified. I am not saying Crandall gets as much money as Mount A but that is not, of course, the point (since as I keep saying, Crandall has chosen to define itself differently). What I am saying is this: the idea that it derives no benefits from the state (or, is even under attack by the state) is inaccurate. One can make of this what one will, but the distinction seems to me to be more one of degree than kind, at least in this regard. And, this could be interpreted as support for either those in favour of extending "free tuition" to Crandall students or not. One could argue (a) Crandall already derives benefits from the state and so it is now asking for more -- to be treated the same as Mount
A, say, without wanting to be the same. One might continue to say that no one is saying that these benefits should change but this is the line that is in place and if people at Crandall want to change this line, they are welcome to but that involves a different relationship with the state. Conversely, (b) one could argue that since there is already a practice of state support for Crandall, why would one choose now to impose an artificial limit on that support that penalizes students for the choices that they make when we do not know why they the chose to attend Crandall. To continue: extending free tuition does not give the stamp of approval to Crandall but instead supports students who may or may not have other post-secondary educational options or who may even argue against Crandall's exclusionary policies? Is it fair to harm them particularly when the state has a history of supporting Crandall?

Second, the issue of equality under the law is clearly one that is important. I gather that some folks who support Crandall are considering suing the provincial on the grounds that its new "free tuition" policy is discriminatory in that it precisely limits its provenance to those who attend secularized institutions. This is is not a slam dunk argument, as I've now said many times, because the folks who run Crandall have chosen -- for their own reasons -- to, in some ways, be different. Hence, the issue is not necessarily state policy. But, the Canadian constitution does not simply guarantee equality before the law; it also guarantees equal benefit of the law.

This is an important concept. What does it mean? This: the law cannot actively discriminate or perpetuate discrimination by maintaining policy that produces material harm to identifiable groups of people. As an example, consider one of the original defenses of the old Marriage Act that discriminated against gays and lesbians. One of the defenses of this act was that it did not, in fact, discriminate. Gays and Lesbians were free to marry if they so chose. They just had to marry someone of the opposite sex ... like everyone else! I kid you not. People actually made this argument.

This is where the idea of equal benefit of the law comes in. In this case, the operation of the law worked in a way that discriminated against a specific and definable group of people. They were not deriving the same benefit of the law as were straight people. In fact, the law stopped them from deriving the same benefit. Hence, the issue is not just "does this law treat everyone the same?" but does it discriminate against a specific group of people that we can identify.

In some ways, the "free tuition" law does. It the example I've been pursuing across a number of blogs, it discriminates against poorer students who attend Crandall. Is that sufficient to make the law unconstitutional?

The short answer is this: I don't know. In my view, the law -- as I have said -- does not threaten freedom of conscience. It does not impose any restrictions on Crandall in terms of what it can teach. It does not limit the voices of people at Crandall in terms of their ability to make their case. It does not close down any churches or websites or stop any sermons. I don't see a law suit, therefore, that is launched on the basis that the "free tuition" programme contravenes freedom of religion as likely to succeed. The principle of equal benefit of the law is more problematic, however, and I think there might, in fact, be a case here.

Why do I say that? Well, for the reasons that I've just outlined. We may have problems with some of Crandall's policies and regulations. I do. I've said before I find them scripturally problematic and I am not at all convinced that the types of prohibitions maintained by institutions like Crandall do anything to advance Christianity. At best, they set up parallel institutions that interact poorly with the rest of society. But, even while I have objections to what Crandall does, I find it more difficult to extend -- as I was suggesting above -- that criticism to the students who attend that institution simply because I don't know their views.

At this point in the discussion, someone usually rightly asks "should taxpayers' dollars go to support institutions with which they have problems?" I've tried to explain before that that question is not as simple to answer as it seems. After all, I am required to pay my taxes (and rightly) whether or not I agree with the policies of the state ... and a great deal of the time I don't. So, the issue it seems to me is not like or dislike the policies. The issue is whether or not the state has fulfilled its obligations to equal benefit of the law through its other policies of which Crandall students can take advantage.

At this point, I should also say that I am, partly, confused by this vehemence with which some people put this issue, on either side. I do understand that LGBTQ Canadians have suffered -- and continue to suffer -- a great deal of abuse, violence, and discrimination. They do not feel that institutions that support discrimination should be funded and they have a case. This is something I don't think the people who run Crandall fully realize or have considered as fully and deeply and as sympathetically as they should. We are not dealing with people who are challenges to your religious views in the LGBTQ community, but people who are challenging the old line "God has said that this is a sin, abomination, etc." We have very long history in Canada of using God to justify this-worldly prejudices and I personally believe that this one should be challenged as well. If we look back into Canadian history, we discover that people believed God wanted residential schools or supported racism or opposed admitting Jewish refugees or sanctioned violence against women. Said differently, there are many things that Canadians have believed in the past for which we can find very little scriptural evidence and discrimination against LGBTQ people is exactly the same.

What confuses me about this issue is many things. I'm confused that it has become an issue. I don't understand why some Christians feel that they are under attack when they are so manifestly not (and, if anyone has lived in a place where their religion is actually under attack, they would know the difference between that and modern NB). I don't understand why some Christians have made sexuality "the hill do die on." I've said this before but my "hill to die on" is love God and your neighbour. Likewise, I don't quite get the pursuit of Crandall by its opponents, excepting those people who fall into the category that I just noted in my previous paragraph. Crandall is a small institution with less than 800 students. We are not talking about UoT or UNB or even Mount A.

I began this series of blogs - -which, someone might say "mercifully" -- I now end by saying that if Crandall did not exist, its opponents and its proponents would need to create it.  That might have been an overstatement. The reason this issue -- free tuition for Crandall students -- is important is because it touches fundamental issues in Canadian society that end up not being about education. The key issue, from what I can tell, really is this: is the freedom of religion also the freedom to discriminate? And, if so, how far does that right go? In the US, some people have tried to argue that it extends into society, to the point where I can deny service someone by virtue of their sexual orientation if I deem it offends my religious values.

I don't think we are talking about that in Canada but that is the issue: is the freedom of religion, the freedom to discriminate. As as Christian, I don't think it is. In fact, I am horrified that Christianity is associated with bigotry. I work hard to be open and to be caring and to promote inclusiveness because I think those are the things that are more important to Christianity. I'd be worried, I think, about a society that made that equation (freedom is the freedom to discriminate) easily. It would not be the type of society or the type of religion that is true to my heart and my conception of Canada.