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.