Mathew Elder (1L)
It can be hard to avoid hyperbole when we perceive religion as creeping into spheres that we don’t think it belongs in. This is especially true if the religious group in question has values that seem out of touch with human rights or equality. The debate over the accreditation of a law school at Trinity Western University (TWU) is extremely nuanced, trite as that might sound. Freedom of religion is not some abstract ideal, but rather the product of a complicated set of historical and legal compromises that underpin our notions of secularism. The problem is that religion, itself a difficult category to define, has never and can never be a purely private matter. The public nature of religious practice will always lead to conflict and the need for compromise.
Neither side of the TWU debate seems particularly interested in engaging with that complexity—but, to be fair, neither am I. My perspective is more personal than academic. I was a queer student at Tyndale University College, a private Evangelical university in Toronto very similar to TWU. I began my undergrad as a straight Evangelical, so I understand why the sense of community these schools create can be very meaningful. However, I also experienced what it is like to be excluded from type of community. As I drifted towards Liberal Protestantism and eventually agnosticism, my position became harder. It is very difficult to study in an environment where every professor is contractually obligated to believe and teach a worldview that you no longer believe in.
I was good at navigating this until I came out: I was quickly fired from a leadership position within the school; I lost my position partly because of a community covenant I had signed that is similar to the one at TWU; I did not spend the rest of my time at Tyndale as a real member of the community. I was an abstraction, a symbol of a position in a contentious debate for my peers. And the only response open to me was to be gracious to those that “accepted” me or diplomatic with those that did not. I cannot speak to the experience of queer students at TWU, some of whom seem quite happy with the university. But I do know what it is like as a queer person to be part of an institution that drives a wedge between your queer identity and your ability to live in a way that comports with that identity: it is painful and the vast majority of queer people would never submit to it.
I find myself in agreement with the arguments that the Law Society of Upper Canada made before the Ontario Court of Appeal. Trinity Western, like other religious organizations, is exempt from many of the requirements of provincial human rights legislation. I am supportive of this. Different religious traditions have values that will inevitably come into conflict with those of other groups. A robust understanding of freedom of religion requires a dialogical engagement when competing values come into conflict. For this reason, I am even sympathetic towards some of the factors that led to me being fired because of my queer identity. Yes, it was very difficult for me, but I can acknowledge that the creation of a religious community is dependent upon the ability for that community to uphold a common worldview.
However, I do not think that this approach can be extended to law schools. The Law Society does not have the same ability to ignore human rights requirements that a religious organization does. The Law Society has to be guided by human rights regulations as it fulfills its role as a gatekeeper to the legal profession. According to the Law Society, it fulfills that role through accrediting law schools, regulating their academic programs, and approving their admissions criteria. The Law Society cannot limit access to the legal profession on discriminatory grounds. If the Law Society approved a law school with a discriminatory admissions policy, it would indirectly violate the equality requirements it is bound by.
I would not be able to attend a law school at Trinity Western because I could not in good faith agree to abide by their Community Covenant. But neither could most Liberal Protestants, Muslims, members of other religious communities, atheists and many others—frankly, a large chunk of our class would not be able to attend this law school. Discrimination such as this should not dictate admission into any of the limited number of law school spots in Canada.