Trinity Western University law school troubles leading to a collision of rights
Editor: There have been many articles and comments lately, in your newspaper and others, dealing with Trinity Western University, its planned law school, and its covenant. Many of these articles have framed the issue as one of freedom of religion and association. It is clearly that, but it is also expressly about freedom against discrimination. The crux of the debate is about what happens when freedom of religion hits headlong against freedom of expression, and the right not to be subject to discrimination for some part of oneself that is central to one’s identity. This is the dichotomy.
TWU’s covenant forbids one from engaging in sexual relations outside theirs (TWU’s) own definition of marriage. Homosexual sex between married spouses, or sex within a heterosexual or homosexual common-law union is prohibited, and grounds for expulsion from its planned law school, or any other of its existing faculties. The TWU definition of marriage is narrower than the current legal definition of marriage. A student can be legally married yet still be in a position where sex with one’s spouse violates the covenant, and risks expulsion.
Many proponents of TWU’s covenant state that they, as a community, can hold any beliefs that they want. While this is true, their conduct must be consistent with the law. The issue here is not one group’s religious beliefs, the issue here is the conduct of an institution. How will the planned law school deal with a homosexual law student who has sexual relations with his or her lawful spouse, and how will the planned law school deal with a law student who has sex with his or her common-law partner?
It is the conduct of the university and the application of the covenant to certain groups in our society that needs to be examined.
If a hypothetical Muslim, faith-based, law school attempted to deny entry to women it is submitted that such conduct would not be tolerated in the name of religious freedom.
If any law school attempted to restrict admission due to race, or had the power to expel a student on the basis of race, it is submitted that such discrimination would not be tolerated in a free and democratic society. Yet it seems tolerable to expel a student based on that student having sexual relations with a spouse of the same gender. Evidently proponents of the covenant suggest that such discrimination should be permissible in the name of religious freedom.
Those in favour of a law school point to the 2001 TWU v. B.C. College of Teachers case as authority for the proposition that their covenant should be applicable to their planned law school. The holding in that case seems to give tacit approval to TWU’s future plans. The question now is whether the law as it was stated in 2001 still applies today.
The evolution of gay rights has progressed rapidly in the past 13 years. The legal definition of spouse in this province has expanded over that time. The legal definition of marriage has expanded over the same period of time. Same-sex marriage was not legal at the time of the above 2001 Supreme Court decision, it now is. Parliament has since spoken on that issue.
This leaves open the very serious question as to whether TWU’s covenant would receive the same treatment today by the Supreme Court of Canada, as it did 13 years ago.
Rights evolve and change over time, leaving open the question of whether it is appropriate to discriminate against one group in the name of religious freedom, or any other freedom.
TWU has the right to have these views. The question is how far can those views go when the institution’s application of those views affects the rights of others, and prevents others from being members of their community of higher learning, when those individuals may be otherwise qualified to be such members. TWU can believe anything it wants in the name of religious freedom but when its actions victimize a particular identifiable group, it must be much more careful.
Law Societies of the various provinces seek not to regulate personal or institutional beliefs, but will and must regulate conduct. Such regulation is within the purview of their power. Ultimately it looks like the highest court in the land will be called upon to take a stand when these fundamental rights collide. There is, and must be, a fundamental distinction between belief and conduct.
David R. Thompson,