The Federation of Law Societies of Canada is considering whether to accredit the law school at Trinity Western University (TWU). TWU is a Christian school famous for a 2001 Supreme Court case in which the court controversially ruled that the British Columbia College of Teachers was wrong to reject the university’s application for certification of its teachers’ college. The university is once again facing opposition due to its Community Covenant — which forbids students from engaging in, among other things, homosexual intimacy. Leading the charge is prominent civil rights lawyer Clayton Ruby, who argues that since the new law school will be inaccessible to gays and lesbians, accrediting TWU would impose a “queer quota” — arbitrarily limiting the number of gay Canadian lawyers.
Disturbingly, Ruby’s defense of equal rights has come under attack in the mainstream media. The National Post’s Jonathan Kay has accused Ruby of a “narrow-minded crusade” against TWU. He cites the 2001 ruling and denounces Ruby for trying “to get around this clear precedent with a new argument based on the claim that, if TWU’s law school is accredited, the legal industry as a whole would then effectively be imposing a “queer quota” on gay lawyers — despite the fact that Canada has almost two dozen other law schools, and that TWU’s 60 first-year law-school slots would comprise less than two per cent of the country’s incoming law-school cohort.”
Similarly, in the Vancouver Sun, Calgary lawyer John Carpay defends TWU’s code of conduct by suggesting that, in addition to homosexuality, it also bans adultery and premarital sex. “Nobody is required to abide by these rules, unless a person voluntarily submits to them,” he argues. “Any student, whether gay or straight, who does not wish to abide by TWU’s code of conduct is free to attend another university.”
It should be deeply distressing to Canadians that such confused commentary is informing public opinion on a topic as important as equal rights. As will be clear to any unbiased observer, Carpay’s argument misses the point; no one is arguing that TWU forces its code of conduct on the general public, or that homosexuality is the only thing proscribed by its covenant, or even that gays and lesbians will have no choice but to attend TWU. What is being objected to is that in order to attend TWU, gay and lesbian students will be forced to hide an integral part of their identities — which is an outrage in and of itself. If a proponent of an anti-semitic university were to protest that “nobody is required to take off his kippa, or tuck in his star of David necklace, or refrain from observing High Holidays unless he voluntarily chooses to attend our school,” or that “any student, whether Jew or Gentile, who does not wish to abide by our (anti-semitic) code of conduct is free to attend another university,” we would regard these arguments as below contempt.
Kay conveys a misunderstanding of equal rights; if there is a single space in a Canadian law school, medical school, barber’s college, or restaurant which is not available to all people, regardless of identity, it is a national disgrace — it does not matter how many other spaces in other institutions are available to these people. If a “whites only” law school were to open in Canada, would anyone care that we have “almost two-dozen other law schools” or that the first-year slots at this “whites only” school would “comprise less than two per cent of the country’s incoming law-school cohort?” Hardly. So why, when the institution seeking to discriminate is religiously-oriented, do such specious arguments appear in the mainstream press?
The Post’s Chris Selley outlines this argument in a recent column: “The mainstream reaction, if we discovered some hitherto unknown whites-only university in the B.C. interior,” he writes, “would be to shut the place down — not its law school, not its engineering faculty, the whole place.” Since there is “no moral difference between anti-gay discrimination and anti-black discrimination” he continues, “the only legal difference is that a religious freedom defense is far more likely in the first case than in the second.” Selley does, however, state that private universities should have the right to admit whomever they want.
If TWU was a secular institution ,there would be no debate about whether to accredit its law school. So the current issue clearly boils down to whether religious institutions should have special privileges to violate individual rights. Many people seem to think that they do, yet it is unclear how to justify this position. Canadian law is inconsistent in this respect; for example, Rastafarians — for whom smoking marijuana is a spiritual act — have been flatly refused any exemption from Canada’s laws against doing so.
Marijuana is basically harmless, and any harm that it does cause is only to the person who smokes it. Accommodating Rastafarians in this respect would not violate anyone’s rights, yet the courts have decided that Rastafarians’ freedom of religious expression is not important enough to merit an exemption to an illiberal law. Christians, on the other hand, have been granted the right to discriminate against gays — refusing to sanctify marriages or rent our Christian facilities for such purposes. Gay citizens’ rights to equality have therefore been subordinated to others’ religious freedoms by the Supreme Court of Canada.
This radical disparity likely has less to do with any principle than with the ability of Canada’s numerous, well-funded Christian groups to lobby and agitate for their interests. This is a luxury which Rastafarians, a tiny minority, do not enjoy. Furthermore, organizations that claim that preventing them from discriminating against gays would restrict their freedom of religion tend to be conspicuously selective in this regard. As Kay admonishes, Christians “are under absolutely no obligation” to “‘read in’ pro-gay interpretations that serve to invalidate the plain meaning of Leviticus 18:22 or 20:13.” They are, however, apparently free to ignore Leviticus 15:19, which commands them to ostracize menstruating women.
Out of this bewildering mass of injunctions, institutions like TWU blithely disregard the majority, seize upon the one that infringes upon LGBTQ rights, and insist that they must be allowed to follow it regardless of its effect on the rights of others — since they cannot freely practice their religion otherwise.
This is not a rights-based argument, it is threadbare sophistry. The fact that such reasoning is considered, and accepted, in Canadian law is evidence of the pervasive pro-religion, anti-gay bias that mars both our legal system, and our society in general.
Simon Capobianco is a third-year student in math and philosophy at the University of Toronto
