Trinity Western University: BCCA Struck the Right Balance

Aaron Haight (2L)

As a person of faith, surely I must be celebrating the most recent Trinity Western University (TWU) law school decision?  Yes, but why I agree with the court might surprise you.  My support does not stem from the fact that the Court of Appeal for British Columbia (BCCA) sided with a private Christian school.  Rather, I believe that the fundamental Canadian values of freedom of religion and expression protect even those with socially unpopular opinions, and I commend the Court for affirming this.

To briefly recap, TWU asks each of its incoming students to sign a “Community Covenant” affirming their dedication to cultivating Biblical virtues; the covenant includes a commitment to abstain from sexual intimacy outside of heterosexual marriage.  On November 1, the BCCA unanimously ruled that the Law Society of British Columbia acted unreasonably when it refused to approve TWU’s law school.  The Court determined that not recognizing the law school would impact the religious freedom of TWU’s students and faculty “significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.”

One of the most valuable concepts I learned from the corrective justice theory of law is that rights are reciprocal: if I want to enjoy a right, I must be willing to extend that right to others.  Or as a wise teacher once said, “Do to others what you would have them do to you.”  The true test of my commitment to fundamental rights and freedoms comes not when I enjoy their protection but rather when I am asked to extend their protection to those different than me.  

For example, the rise of anti-Islamic sentiments in our society, especially those targeted at specific Muslim practices such as the wearing of the niqab, troubles me on two levels.  First, I believe such attitudes display ignorance and inappropriately demonize human beings who happen to practise a religion foreign to many Canadians.  But more importantly for the present topic, I also recognize that if I tolerate such conduct towards members of another religion, I undermine the very foundation that guarantees my own freedom to live openly as a follower of Jesus. I cannot seek to limit the freedoms of others while simultaneously insisting that my own rights be recognized.

This principle applies with equal force to differing perspectives on human sexuality.  The values underlying the freedom of expression recognized in Little Sisters Book and Art Emporium (a 2000 decision of the Supreme Court of Canada that extended freedom of expression protection to a LGBTQ bookstore) are the same as those which allow TWU’s students and faculty to hold their own views of sexuality.  A society that recognizes freedom of sexual expression must accommodate all viewpoints, even when diverse perspectives inevitably lead to conflict between members of society.  Such conflict presents opportunities for constructive dialogue and mutual understanding, not limitations on one group’s ability to hold and express their beliefs.

One of the most important themes in the TWU decision is that potential harm to Charter-protected rights must be assessed “concretely and in context.”  TWU’s approach to sexuality offends many within the LGBTQ community as well as greater Canadian society, but equally offensive to me, as a Canadian, are statements describing TWU’s values as “abhorrent,” “archaic,” and “hypocritical.”  How can we claim to respect diversity in Canada if we so negatively characterize those with beliefs different than ours?

I recently read To Kill a Mockingbird, where Atticus Finch instructs his daughter, Scout, “You never really understand a person until you consider things from his point of view… until you climb into his skin and walk around in it.” So, is TWU’s law school truly, in the words of the Law Society, “premised on principles of discrimination and intolerance”?  TWU is not a secular institution; it combines academic learning with a community that shares certain personal religious convictions.  At any secular institution, students and faculty are free to associate with various social, religious, or political causes without fear of losing their professional credentials.  Indeed, our very own faculty celebrates the diversity of its students.  Do we champion diversity while simultaneously insisting that only certain perspectives are permissible?

As a private institution, TWU’s right to admit only students who agree with its religious views is protected by BC’s Human Rights Code and has been affirmed by the Supreme Court of Canada.  Two separate bodies, the Federation of Law Societies of Canada and British Columbia’s Minister of Advanced Education, approved TWU’s law school proposal after receiving assurances that TWU was committed to promoting non-discriminatory practices in its teaching of substantive law and ethics.  Indeed, the Law Society itself acknowledged that its rejection of the law school was not based on academic qualifications.

There is no hierarchy of rights in Canada.  Determining whether religious freedom should be limited in favour of equality requires careful consideration of the “actual harm” suffered by those whose rights are violated.  The Law Society, a professional regulatory body, requiring TWU’s students and faculty to “secularize” their view of sexuality represents a significant infringement of religious freedom.  In contrast, TWU’s covenant, which governs personal beliefs and behaviour, does not demonstrably harm the equality rights of the LGBTQ community.  If we imagine the opposite scenario, where students who support LGBTQ causes were deemed “too liberal” to practice law, I suggest that the choice would be obvious.  

The BCCA struck the right balance.  The students and faculty of TWU have the right to belong to a community with a particular view of sexuality.  No other Canadian law graduate is required to state their personal view of sexuality before being admitted to the bar.  Absent evidence that the professional qualifications of TWU’s graduates will be compromised by their personal convictions, barring these students from practicing law is unjustifiable in a free and democratic society.

If we value a pluralistic Canada, that very plurality guarantees that conflicting views will arise.  How we respond to those conflicts will demonstrate how committed we are to fostering diverse opinions and beliefs.