Trinity Western University covenant goes on trial yet again
By Peter Stockland
Several years ago when the Trinity Western University law school battle was just building, I was shocked to hear a devout Catholic friend trash its controversial Community Covenant.
A highly respected academic who had worked closely with TWU at certain points in her career, she verbally dismantled it as dubious at best, hypocritically indefensible at worst and antithetical to formation of Christian conscience.
My counter-arguments were increasingly feeble until I reached for the “private institutions can do as they choose” rebuttal.
“They have a right to operate as their beliefs require if religious freedom means anything,” I said.
“Well,” she shot back, “if they do have that right, they should have thought long and hard about using it for this.”
The beginning of that end arrived Nov. 30 as arguments were heard in the Supreme Court of Canada over the B.C. school’s plan to open an evangelical Christian law school. The end of the end will come in 2018 when the Court hands down a ruling.The ruling will essentially uphold — or overturn — the Ontario Law Society’s refusal to accredit future TWU law graduates. Courts in Nova Scotia and B.C. have already ruled it is unreasonable for their provincial law societies to deny such accreditation.
At the heart of the barrister argy-bargy is a clause in the covenant requiring all students and staff to commit to refraining from sexual behaviour that violates Christian principles, i.e., that occur outside heterosexual marriage. Short version: married gay couples seeking to attend TWU, or to teach there, must commit to celibacy.
In recent testimony to a House of Commons committee investigating religious discrimination, TWU President Bob Kuhn said attacking the covenant by targeting prospective law school grads has already subjected the university to the discrimination that those opposed to the Community Covenant deplore.
“If powerful law societies can discriminate against students graduating from Trinity Western, then what is to stop other organizations from discriminating against its 24,000-plus alumni or its 300-plus faculty members? This is exactly what has happened… yet again.”
The phrase “yet again” refers to university battles against past attempts to refuse accreditation to its teachers’ college. The Supreme Court swatted down those attempts in 2001, ruling there was no evidence TWU teaching grads ever discriminated in any classroom in Canada.
Kuhn’s comment to the Commons’ committee is by far the strongest claim in his evangelical school’s favour. Indeed, it’s the one I reflexively reached for against my eloquent Catholic friend’s meticulous arguments. I still hold it correct: A private institution must be able to have its membership conform to foundational rules of conduct. As the B.C. Court of Appeal said, those who don’t like TWU’s rules can go elsewhere.
Yet a recent conversation with a lawyer who was part of successfully defending, at the Appeal Court level, the Ontario law society’s refusal to accredit, has left me questioning whether Trinity Western’s exercise of its right remains the right thing to do. Douglas Judson, a board member of the gay rights legal coalition Out on Bay Street, makes a compelling case that the role of the public interest can’t be left out in the calculus of TWU’s private rights. Ontario’s law society, Judson argues, is a secular body that must accredit lawyers in the public interest even if that bumps up against religious freedom. It is simply not in the interest of the practice of law, and so not in the public interest, to deny sexual diversity in law school programs, he contends.
“Individuals are entitled to equality rights. Individuals are entitled to religious freedom rights. But your exercise of a religious freedom right can’t be used to undermine the equality rights of someone else. Trinity Western is seeking a public benefit in the form of government approval to issue accredited law degrees. To do that, they need to be in accord with public policy on equality. That is the battle here.”
However the Supreme Court decides based on the arguments, all Christians must examine whether it’s right or wrong for that battle to even be engaged.
(Stockland is publisher of Convivium.ca and a senior fellow with Cardus.)
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