Religion and Bigotry – Opponents of Trinity Western Law School Say More About Themselves Than They Think

There a minor kerfuffle in the legal community this week over news that Trinity Western University (TWU), a private Christian university based in BC, had cleared the initial hurdles to potentially establish a new law school.  What has been particularly controversial about TWU’s application is the community covenant that TWU requires its students (and staff) sign which includes an agreement not to engage in “sexual intimacy that violates the sacredness of marriage between a man and a woman” (read gay sex).  TWU’s application to establish a law school has been opposed by many of the powers-that-be in the legal community (including the redoubtable Clayton Ruby and the Council of Canadian Law Deans) on the grounds that, among other things, it would be a breeding ground for bigotry.

The Council of Canadian Law Deans has called Trinity Western’s proposal “fundamentally at odds with the core values of all Canadian law schools.” And in a statement from a coalition of LGBT affinity groups at Canadian law schools, University of Toronto student Marcus McCann called the decision “totally unacceptable.”

“The bottom line is that no law school in Canada should be allowed to weed out gay students,” he said.

Now, there are probably pretty good arguments against establishing another Canadian law school – notably the fact that legal hiring is plummeting at a time when law schools are increasing enrolment.  The last thing we need is more second-rate (or worse) law schools or law students.  But that’s an argument that applied equally to the new law school at the University of Lakehead (which, within a decade, I feel confident in predicting, will lead all law schools in the category of “graduates facing disbarment”) or to shamelessly greedy decisions of law faculties at the University of Ottawa and Queens University to increase enrolment (helping maintain the cushy salaries of the faculty while saddling a generation of law students with student loans that they may never pay off).  But I digress…

In any event, whatever the case against establishing new law schools, the people who are worried about the proposed TWU law school  are not making particularly compelling arguments against that particular law school.  Take today’s article in the Globe about the issue.  While conceding (correctly in my view) the decision to allow TWU to continue the process for establishing a new law school was correct, criminal defense lawyer Eric Gottardi raises the following objection:

“But people go to law school, I think, to think very liberally about rights, and civil rights, and certainly you can talk in one breath about the freedom of religion, but [also] in the Charter is the protection of equality rights.

“What exactly are they going to be teaching about Section 15 [equality rights] of the Charter at Trinity Western law school?”

The theory seems to be that people who don’t believe in gay sex or gay marriage are incapable of comprehending, or teaching about, the equality provisions of the Canadian constitution.  But it’s a preposterous argument.  Consider the counter-example.  I would posit that there are exactly zero neo-Nazi law professors in Canada.  Moreover, I suspect most (if not all) of the professors (and students) at any respectable Canadian law school hold neo-Nazis, or those who share their views, in utter contempt (and rightly so).   Indeed, most Canadian universities have  their “community covenants” (e.g., codes of conduct) that would prohibit neo-Nazi expression.  Yet, I don’t think anyone has any doubt that Canadian law schools are quite capable of teaching about the constitutional protections afforded by the Canadian constitution to free expression including, among other things, racist expression.  One doesn’t need to be a neo-Nazi or have any sympathy or respect for neo-Nazis to appreciate and understand the nature of their claims to free expression.

Now, I don’t want to be accused of comparing neo-Nazis with homosexuals, since the former richly deserve the universal contempt and scorn that they attract, while the latter don’t deserve any contempt or scorn (at least not on the basis of being homosexuals).  But the point of the comparison is this, if otherwise decent law professors and students can wrap their minds around the right claims of neo-Nazis, why would we expect them not to be able to do so for other groups, whatever their personal views of them?

And I think the answer is that the underlying the arguments being made by Gottardi and other critics is that they believe that the faculty and students at TWU would be incapable of divorcing their own personal beliefs as to what is right and wrong from their interpretation and understanding of the law, so could not, for example, fully comprehend Canadian equality law or would not be able to practice in a manner consistent with their professional obligations.

I’m not sure where that belief comes from. After all, the ability to divorce your personal beliefs about the nature of your clients and their actions from your assessment of their legal rights is a skill set that every lawyer masters and uses in their day-to-day live.  Sure, a defense lawyer might think that, because his client is a piece of shit child molester, they should rot in hell for all eternity.  In fact, I bet every criminal defense lawyer probably has clients who they personally despise (I’d worry about the profession if they didn’t).  But that doesn’t mean that they’re incapable of fully and vigorously defending those clients to the fullest extent of the law.  So why do we think that the graduates of TWU would be any less capable of distinguishing between their personal views and their professional expertise than the rest of us?

I can think of two bases for this belief. One is that many of the opponents of the TWU proposal are, themselves, incapable of distinguishing between their own personal views and their views of what the law is and therefore believe that others (including potential TWU graduates) are incapable of making that distinction as well.   Take Marcus McCann’s, a U of T  students who is a spokesman for a LGBT affinity group.  In his view,  the decision to allow TWO to proceed is “unacceptable” because “[t]he bottom line is that no law school in Canada should be allowed to weed out gay students”.  I can understand why that might be his personal view.  But the Supreme Court of Canada has, in an earlier decision dealing with the establishment of a teacher’s college at TWU, taken a pretty strong view that discriminating against TWU (or its graduates) based solely on their religious views or policies is unconstitutional (rightly, in my view).  Mr. McCann has surely studied that case in his first year constitutional law course, making his statement that the decision is “unacceptable” rather embarrassing (at least from a professional prospective).  Whatever his personal view, it’s pretty clear that the law permits schools like TWU to impose a “community covenant” and that any attempt to prohibit them from establishing a professional school on that basis is going to run into constitutional problems.

The other possibility is that critics of TWU have internalized a set of assumptions about people of faith, in particular conservative Christians, namely that they are simply not as sophisticated or as rational as those of us of a more secular persuasion, or are incapable of distinguishing their moral views from their professional activities.  In the same Globe article, Jason Gratl, a criminal defense and civil rights lawyer expresses the view that:

[h]e would be hesitant to hire a graduate from Trinity Western’s law school.

“I would make assumptions about either the applicant’s values or their desperation to get into a law school – any law school,” he said. “It seems to me when you have restrictive entrance requirements, you lose a lot of very qualified teachers and students and the quality of the education just deteriorates.” [emphasis added]

It’s a revealing comment, because while I’m sure Mr. Gratl thinks of himself as an open-minded and tolerant man (he is a civil rights lawyer, after all, and has an impressive profile), he seems to be saying that he would be reluctant to hire an applicant who shares the values espoused by TWU.  Um, I’m NOT a civil rights lawyer, but I’m pretty sure that discriminating against job applicants on the grounds of their religious beliefs is a pretty big “no-no” under the human rights laws (to say nothing of the rules of professional ethics) in BC where Mr. Gratl practices.  But full credit to Mr. Gratl for honesty, because I think he’s voicing the underlying assumptions that motivates a lot of the opposition to TWU.

The problem with that assumption, apart from being discriminatory in its own right (and if used as the basis for, amongst other things, hiring decisions, probably actionable) it’s palpably untrue.  I’m not religious myself, but I know lots of people who are very conservative Christians (or Jews or Muslims).  Some of them support TWU.  And they’re scientists or doctors or lawyers, often very good ones, and serve the broader community well in their professional roles. And they enjoy Gay Pride parades and have gay friends.  Believe it or not, Christians, even conservative Christians, are able to reconcile their own religious views with their professional responsibilities and the realities of living in a pluralistic society (Christianity, having started as the religion of a persecuted minority within the Roman empire is, in fact, well suited to separating private religious faith and public civic duties).

Sure,  there are religious bigots of all faiths.  But bigotry is not the sole purview of religious conservatives, and as the TWU affair demonstrates,  it’s not clear that some of Canada’s more ardent secularists are capable of setting aside their own personal views and reconciling them with the realities of living in a pluralistic society that includes religious conservatives.

 

6 thoughts on “Religion and Bigotry – Opponents of Trinity Western Law School Say More About Themselves Than They Think”

  1. The assumption I would make is that the TWU law graduate would be more likely to condone or overlook discrimination against sexually active gays and lesbians. That assumption would be based on the fact that the TWU graduate was prepared to overlook discrimination in order to attend TWU, and the assumption is consistent with the BC Human Rights Code. There is also the matter of bona fide occupational requirements for working at my firm.

    I doubt that a Human Rights Tribunal would cast the assumption about the likelihood to condone or overlook discrimination as a form of religious discrimination. After all, the assumption applies equally to believers and non-believers and is consistent with the understanding that mere belief or religious adherence does not imply bigotry. My assumption is not based on religious belief – it is based on attendance at an institution that is openly hostile to sexual intimacy outside male/female marriage.

    I would be perfectly entitled to ask on a job interview, for example, whether the candidate is comfortable with or would support (what I would consider to be innocuous) demonstrations of same-sex affection such as hand-holding or voicing terms of endearment or a simple goodbye kiss within the office setting. Such questions are not a form of religious inquisition or religious discrimination.

    Sincerely yours,

    Jason Gratl

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    1. Thanks for the comment Jason, but I think your answer proves my point.

      Consider the first response, is it a reasonable assumption that, because an individual attended a school that discriminates (forget condones or overlooks, no point beating around the bush) against sexually active gays and lesbians that such individual shares that view? Consider the reasonableness of the alternative proposition, that an individual who attends a school that is gay positive is also gay positive? Are there no homophobes at Osgoode, UofT or UBC? I wouldn’t take that bet.

      In fact, I’d suggest that such an assumption might only be reasonable if one believed that opposition to active gay or lesbian sex is one of the principal reasons for students to attend TWU, which is implausible. Perhaps they attend TWU because they have an interest in the intersection of law and religion. Maybe they’re attracted to other aspects of the student code of conduct (The covenant dealing with same-sex relationships is 1 sentence is a 5 page document. Perhaps they share Catharine MacKinnon’s views on pornography? Maybe they’re teetotalers?). Maybe they live near Kelowna, and TWU is a convenient location. It could be that they faced challenges in undergrad and it’s the only school they could get into? (Not everyone can get into UofT like we did) Not everyone’s life resolves around their views on homosexuality. Indeed, you prove my point when you say that your assumption “applies equally to believers and non-believers alike”. If you’ll concede that a TWU student who might not believe in Christianity (or in particular tenets thereof), the principal raison d’etre of TWU, might attend TWU, why would you expect them to believe in every single aspect of its code of conduct?

      More to the point, simply by making the assumption, you have a problem. I’ve been involved in hiring at my firm, and we are are very careful about challenging ourselves to avoid making assumptions about candidates based on group characteristics, because that’s the first step to discriminatory behavior. I’ll concede the point that opposition to discrimination is a bona fide requirement to work at a civil rights firm, but it’s not permissible to simply assume that because someone attended a religious school which holds discriminatory views based on the tenets of its faith, they don’t or can’t satisfy that bona fide requirement. On that logic, you wouldn’t have offered a job to Pierre Elliott Trudeau, based on his training with the Jesuits (a group with well-defined views on homosexuality, whose training was no doubt responsible for the fierce intellect of the man who would decriminalize homosexuality and introduce the Charter). Any assessment has to be made on an individual-by-individual basis.

      I’m a tax lawyer, so I’m inclined to defer to your expertise on human rights laws, but are you seriously telling me that if an employer said “I wouldn’t give so-and-so a job interview because he attended a conservative Christian school [or a Jewish school, or a Muslim school, or for that matter, because he DIDN’t attend a Christian school], and I assumed he wouldn’t be able to satisfy my job requirements” that wouldn’t be considered religious discrimination by the BC Human Rights Tribunal? That wouldn’t say much about the state of human rights law in BC. In any event, saying that discriminating against TWU students based on that assumption isn’t religious discrimination because it applies equally to believer and non-believer TWU students alike is kind of like saying that discriminating against members of the Caribbean Law Student’s Society isn’t racial discrimination, since it could include both Black and White members. I think you’ll agree, that argument wouldn’t get one very far.

      Finally, I’m happy to concede that you could make decisions about hiring based on questions asked of potential candidates (i.e., based on assessments of actual abilities of the student, not on assumptions about their abilities), although again, is “supporting” demonstrations of same-sex affection within the office a bona fide job requirement? I have to say, I support gay rights, but I can’t say I’ve ever supported someone’s demonstration of same-sex affection (within the office or otherwise), and have probably opposed more than a few demonstrations of opposite-sex affection (“get a room people”). Perhaps if your firm makes a living fighting plaintiff-side LGBT cases, it is. The firm I work at is committed to diversity in its hiring. It expects candidates to work as members of a diverse team of people, with a wide array of sexualities, races, religions, political views, whatever. We don’t much care if they’re, internally, comfortable with the lifestyles of their fellow colleagues, and we certainly don’t require that they support those lifestyles (granted, we’re a larger firm). We expect civility and tolerance towards fellow employees (i.e., plain decency). In a liberal society, that’s all you can expect, and frankly, all you need.

      I think too much of the discussion from critics of TWU is based on precisely the sort of assumptions that you’re making. Let’s assess its graduates as individuals (as the SCC mandated in the earlier TWU case dealing with its faculty of education). If TWU produces students who let their religious views interfere with their grasp of the law and their professional obligations, they won’t be practicing law for very long (if at all, and frankly, given the legal job market these days, if I couldn’t get into one of the top-tier law schools, I wouldn’t bother). But I think we’ll be surprised.

      In any event, thanks again for the thoughtful comment.

      Cheers
      Bob

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  2. Sir,

    Your blog says that:

    (1) my assumption is contrary to the BC Human Rights Code;
    (2) my assumption is contrary to the British Columbia Rules of Professional Conduct; and
    (3) my assumption is “probably actionable”.

    That kind of loose talk is irresponsible and reprehensible. I trust that no one will take your blog seriously.

    Like

    1. Jason,

      What? Didn’t your read what I wrote before you commented the first time ? Gee, you took it seriously enough to post a thoughtful (if wrong) comment 6 weeks ago (and frankly, anyone who take blog from a guy names Bob Smith too seriously needs to have their head examined).

      I realize you embarrassed yourself with your ill-considered (and – ahem – irresponsible and reprehensible) comments in the Globe and Mail, but you may want to quit while you’re ahead. Let’s go back to what I originally said about your comment in the Globe:

      “It’s a revealing comment, because while I’m sure Mr. Gratl thinks of himself as an open-minded and tolerant man (he is a civil rights lawyer, after all, and has an impressive profile), he seems to be saying that he would be reluctant to hire an applicant who shares the values espoused by TWU. Um, I’m NOT a civil rights lawyer, but I’m pretty sure that discriminating against job applicants on the grounds of their religious beliefs is a pretty big “no-no” under the human rights laws (to say nothing of the rules of professional ethics) in BC where Mr. Gratl practices.

      Now, are you telling me that you would not be reluctant to hire an applicant who shares the value with TWU? I don’t think so.

      Do you disagree with the proposition that discriminating against job applications on the basis of their religion (or political belief) is a violation of the BC Human Rights Code? (See, for example, section 13 of the BC HRC). Or the proposition that such discrimination violates the BC rules of professional conduct? (See, for example, section 6.3-5 and the commentary thereto). I doubt it.

      So, the crux of the matter is whether refusing to hire TWU students constitutes religious discrimination. You say:

      “I doubt that a Human Rights Tribunal would cast the assumption about the likelihood to condone or overlook discrimination as a form of religious discrimination. After all, the assumption applies equally to believers and non-believers and is consistent with the understanding that mere belief or religious adherence does not imply bigotry. My assumption is not based on religious belief – it is based on attendance at an institution that is openly hostile to sexual intimacy outside male/female marriage.”

      As I subsequently pointed out, that’s a weak argument. Claiming that refusing to hire graduates of a Christian university – based on your disagreement with that university’s religious dogma – doesn’t amount to religious discrimination is pretty laughable. Would you accept the argument that posting a job ad that says “No Jamaicans” doesn’t constitute racial discrimination because there are both black and white Jamaicans? I hope not. Nor can it be argued that you’re rejecting TWU students on the basis of a bona fide occupational requirement, since you’re simply assuming that the students are likely to condone or overlook discrimination on the basis of their attendance at TWU, rather than establishing that they would do so. After all, if “belief or religious adherence does not imply bigotry” (your words), what basis do you have for your assumption that people who attend a Christian school are homophobes? (UofT doesn’t condone discrimination against homosexuals, do you believe for a second that no homophobes attend UofT?) Your problem is that you’re assuming that attendance at a Christian University, which university requires that its students conduct their private lives in accordance with what it sees as Christian biblical teaching, implies a “likelihood to condone or overlook discrimination”. And you’re pretending that there’s not religious discrimination. Well, good luck with that.

      Frankly, if I were a potential employer, I wouldn’t take the chance you’re taking with making statements like that about why your would or would not hire people from TWU, because you’ve put yourself in a position of vulnerability (which point I think you realize, hence your latest terse comment). Any future TWU student who applies to your firm and gets a PFO letter (regardless of how merited it may be) will be able to point to your quote in the Globe and say “He didn’t reject me based on my merits, or my ability as a potential human rights lawyer [on which point, even on your account, they’d be entirely correct], he rejected me because I’m a Christian”. I hope they’ll be wrong.

      Best Regards

      Like

  3. Please note that I didn’t say that I wouldn’t hire a TWU graduate and that I didn’t say that I wouldn’t give a TWU graduate an interview. I said that I would ask them questions at an interview.

    The assumption I would make arises from a student’s adherence to the discriminatory policy, not from attendance at a christian school.

    Your blog posts ignore those distinctions.

    Yours truly,

    Jason Gratl

    Like

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