Religion and Politics
The current debate sparked across Canada regarding the accreditation of a Christian law school, namely Trinity Western University (“TWU”), located in Langley, British Columbia, largely pertains to the Community Covenant Agreement that students and faculty are required to observe upon admission and/or employment with the institution. Premised on the Bible’s teachings, those who sign the pledge are required to voluntarily abstain from a variety of actions that would otherwise be deemed as destructive according to a Christian ethic, including “sexual intimacy that violates the sacredness of marriage between a man and a woman.” See: http://bit.ly/1gwObt4
This clause has been chiefly construed by opponents of the accreditation as homophobic and thus discriminatory towards the LGBTQ community seeing as disciplinary measures will be taken should any member of the institution violate the covenant. In his debate article for the Globe and Mail, John G. Stackhouse, Jr. criticizes the “fundamental argument [that as] TWU law graduates will be trained in an environment disapproving of homosexuality, they can be presumed to graduate as disapproving of homosexuality,” by suggesting that lawyers frequently represent clients who have engaged in behavior that extends beyond their value system’s scope of disapproval. Nevertheless they are held to be capable of representing their best interests. See: http://bit.ly/1bQHw8Q
Notwithstanding the reality that this section of Stackhouse Jr.’s argument is premised on a red herring fallacy, the heart of the controversial nature regarding this institution’s accreditation can be found in the seeming conflict of rights of which we are guaranteed as Canadians as set out in our constitution subject to certain limitations. As iterated in section 1, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This applies to our fundamental freedoms which, relative to TWU, concern our freedom of religion and conscience; our freedom of thought, belief, opinion, and expression and our freedom of association. Moreover, the first clause likewise applies to our equality rights that concern equality before and under law and equal protection and benefit of law except in circumstances that seek to ameliorate conditions for certain disadvantaged groups, including particular religions, or disadvantaged individuals which purports to affirmative action programs. Finally, under section 29, schools of denominations that have been previously guaranteed special constitutional protection including those of Christian denomination do not lose their rights or privileges because of the implementation of the Charter.
In piecing together the complexities of TWU it is important to note that although it is a school of a privately-funded nature, law school graduates will be accountable to the provincial associations that call them to the bar and will ultimately work in a field subject to the Charter. Although TWU’s covenant could be said to run afoul of LGBTQ’s equality rights should disciplinary action be taken against students of such sexual orientation, the Canadian courts have not been known to invoke the limitations clause without tangible proof that discriminatory practices are either imminent or have occurred. Take for example Trinity Western University v. British Columbia College of Teachers heard in 2001 where the British Columbia College of Teachers (“BCCT”) were held to be acting outside of their jurisdiction by not accrediting TWU’s education program.
The BCCT based their decision on the fact that there was a possibility that those who pledge to the covenant embodied discrimination against homosexuals. Additionally, as located on TWU’s website, they do not curtail admission based on sexual orientation per se; (See: http://bit.ly/LYJrkQ) rather it is based on adherence to the covenant during a student’s training at the institution (or an employee’s employment). Thus, it seems as though there are no Charter rights that are in conflict with one another, but rather social apprehension as to whether universities that produce graduates with such a close relationship to power should be permitted to be openly of a particular religious denomination. There is a more suitable court set out for the purpose of determining the legitimacy of such an apprehension, namely the court of public opinion.