Tuesday, October 13, 2015

Does freedom of religion include a right to discriminate?

Trinity Western University (TWU) is a Canadian Christian post-secondary institution with plans to open a law school in 2016. The Juris Doctor (law degree) program was approved by the British Columbia Ministry of Advanced Education in December 2013. However, due to the contents of TWU's Community Covenant Agreement, the proposed law school has attracted considerable controversy.

The five page covenant covers many aspects of life while attending TWU. Among other things, students must:
  • "reserve sexual expressions of intimacy for marriage" and
  • "Voluntarily abstain from [...] sexual intimacy that violates the sacredness of marriage between a man and a woman".
Elsewhere, in the "Healthy Sexuality" section, the covenant reiterates that "sexual intimacy is reserved for marriage between one man and one woman".

The terms "of this covenant apply to both on and off TWU's campus" - that is, everywhere. "Students sign this covenant  with the commitment to abide by the expectations contained within the Community Covenant," while "TWU reserves the right to question, challenge, or discipline any member in response to actions that impact personal or social welfare." TWU policy is that the school "reserves the right to discipline, dismiss, or refuse a student’s re-admission to the University" if a student violates the terms of the covenant. Signing the covenant is mandatory for all students.

The Law Society of Upper Canada and the Nova Scotia Barristers' Society found TWU's covenant to be so offensive they decided to not recognize its graduates - meaning TWU alumni would not be able to practice law in those provinces. TWU sued both organizations, and each jurisdiction gave a different verdict: Ontario ruled that the Law Society of Upper Canada was within its rights not to recognize graduates from Trinity Western's law school, while the Nova Scotia Supreme Court determined that the Nova Scotia Barristers' Society must accept TWU graduates. Both rulings are being appealed.

What is the principled stand to take when two Charter values - freedom of religion and freedom from discrimination - conflict? Does freedom of association include the capability to exclude certain types of individuals from your group or institution?

It is my opinion that the Ontario court verdict is the ethical and consistent one, while the Nova Scotia judge erred in his ruling.

The TWU covenant is the equivalent of a private (neither funded nor owned by government) hotel chain, or a family-owned bed and breakfast, welcoming married same-sex couples to sleep in their rooms as long as they sign a contract whose terms include remaining celibate for the duration of their stay, while married heterosexuals face no such restrictions.

If you think such restrictions are legitimate, would your answer change if every hotel  and B&B in a sizable region forbade copulation between same-sex married guests? Should landlords be able to legally demand that gay tenants remain celibate, even if this left couples with no place to live or stay the night?

If you think this is a reasonable power for landlords to have, what other criteria could be grounds for refusal to let a room? Hair or skin colour? Certain varieties of religious belief (or their lack)? Rooms restricted to vegetarians?

If you do not agree that landlords and hotel managers should be able to police the private, consensual, legal sexual activities between some married couples, why should a private university have such authority?

Not that TWU is entirely private - it receives between one and three million dollars in government funds each year. There is a strong case that with millions of dollars of government subsidies, TWU should be subject to the same non-discrimination rules as every other recipient of federal money. As a practical matter, however, government funds have represented at most 5% of TWU's revenues. The principle under dispute would not be affected if TWU refused all future government subsidies.

There have been several arguments made in favour of TWU, but I do not find them convincing.
  • There is no (or at most a negligible) practical effect on anyone's rights. This is false. There are currently 18 common law schools in Canada - TWU would be the 19th. Should it proceed, over 5% of the first year law school openings in Canada (and 25% in British Columbia) would be closed to non-celibate married gays (in addition to all those who are sexually active and not married). Essentially, the argument is that discrimination is okay below a certain threshold that TWU does not surpass, since homosexuals can go elsewhere. A formalized "seperate but equal" eduation system was rejected in the United States decades ago; we should not be introducing explicitly exclusionary schools in Canada today.
    Furthermore, this sets a dangerous precedent - what other criteria might other educational institutions set on who can attend? Might a private Hindu university demand all students eschew consumption of beef products, on campus and off? Should a private Jewish university be able to forbid any physical contact between unmarried students of the opposite sex? Could a private Muslim university enforce a requirement that all female students wear a niqab? 
  • The university is exercising its religious freedom in preventing non-celibate gay relationships among the students, staff, and faculty. The logic here is faulty on two levels. First, freedom of conscience applies to people, not organizations. Second, this sentiment demonstrates a fundamental misunderstanding of freedom of conscience. Religious freedom allows you to pray and worship the Deity of your choice in whatever manner you see fit, subject only to generally applicable laws. Religious freedom does NOT extend to demanding others obey your parochial taboos. That is persecution, hiding under the rhetoric of liberty. My freedom to swing my fist stops at the bridge of your nose.
  • The Supreme Court of Canada already ruled on this topic, when TWU opened its teachers college. In 1996, the British Columbia College of Teachers refused to certify graduates from the TWU education program. TWU litigated, and in 2001 the Supreme Court decided in favour of the university. However, the basis of the ruling was not the discriminatory aspects of the school's covenant. Rather, the Supreme Court sided with TWU because there was no evidence that graduates would treat their future gay students prejudicially. The 2001 Supreme Court ruling is not a relevant precedent for the current situation. 
  • Trinity Western has had a teacher's college with a substantially similar covenant for over a decade. Why are lawyers being held to a different standard than teachers? I agree. All of the arguments raised here are as applicable to provincial teachers' associations as their law societies. Perhaps these concerns should have been raised publicly earlier, but that does not invalidate them.
  • The Law Society of Upper Canada and the Nova Scotia Barristers' Society are the wrong parties to be arguing this in our courts. If the TWU covenant violates the Charter or human rights legislation, let a student (or faculty member) file a human rights complaint.  I agree with this argument as well. It's entirely possible that a human rights tribunal (or a direct Charter challenge) would be an appropriate forum to address the issue. But as I am not well versed in the intricacies of Canadian legal jurisprudence, someone more knowledgeable than me would have to weigh in. For now, I take a "Yes, both" approach instead of looking at it as a (possibly false) "Either / or" dichotomy.
Given that TWU has met all provincial curriculum requirements, my objections (and presumably those of the law societies of Ontario and Nova Scotia) to recognizing TWU's graduates would disappear if it also dropped its discriminatory covenant. I find it a bit rich for TWU to claim, in effect,  "How dare you discriminate against TWU just because our school openly discriminates against homosexuals?"

But let's posit, for the sake of the argument, that Trinity Western, as a (largely) private institution regulated by provincial law, should be free to admit only those students who uphold Christian values. Why shouldn't law societies, which are also private bodies regulated by provincial law, be able to withhold recognition from graduates of a program that violates Canadian and Charter values?

On what basis can one both propose that TWU has absolute discretion in determining its admission criteria and deny the same capability of provincial bar associations?

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