Almost two weeks ago, following Pope Francis’ election, many of our friends and acquaintances sounded off, outraged, regarding his views on sexuality. In this respect, the Obiter Dicta is decidedly on a different page than His Holiness. What amazes us, though, is some folk’s ability to remain surprised, even after spending so much time on planet Earth, that a Catholic cleric is more socially conservative than the average bear. Maybe those opposed to Trinity Western University’s (TWU) bid to open a law school are not similarly surprised at the University’s policy that prohibits any “sexual intimacy that violates the sacredness of marriage between a man and a woman,” but they are similarly outraged.
Perhaps rightly so. After all, the policy clearly prohibits activity central to the deeply-held identity of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people. We at the Obiter Dicta don’t take kindly to being told whom we may sexually intimize, nor, apparently, do the more than one thousand students who signed a petition calling for the Federation of Canadian Law Societies to reject TWU’s bid for accreditation. And, while it’s worth noting that even sexual intimacy between a man and a woman is prohibited under this code if the couple is not married, it’s also worth noting that there is no similar ceremony that a same-sex couple could perform to comply with TWU’s “Community Covenant Agreement,” since the evangelical Protestant churches that founded TWU do not recognize same-sex marriages.
TWU already has a Teachers’ College and Nursing School. So why are these okay, but not a law school? In a media release issued on March 18, esteemed Ozzie Douglas Judson answers that very question.
“The [signatories to the petition] question whether TWU is an appropriate venue for legal education because these discriminatory policies do not propagate Canadian legal values, including those reflected in the Charter of Rights and Freedoms or provincial human rights legislation.
The signatories express that as future lawyers and officers of the court, they are committed to equality and promoting the values of the Charter of Rights and Freedoms within their own practices. They believe that their colleagues should be exposed to a learning environment that fosters the same.”
In fact, it is upon this argument that this saga will turn. In 2001, the Supreme Court of Canada, in an 8-1 judgment, quashed the British Columbia College of Teachers’ (BCCT) refusal to accredit the very same Trinity Western University’s Teachers’ College. The Court distinguished belief and conduct, holding that a teacher’s suitability is not based on what they believe, but on how they conduct themselves in their professional environment. Thus, there was no conflict between equality rights and freedom of religion unless the BCCT could prove that TWU graduates were more likely to behave contrary to the rules governing teachers’ conduct than graduates of other British Columbian universities. It couldn’t.
What happens with TWU’s proposed law school, then, will turn on whether the Supreme Court’s reasoning in this case is also applicable to lawyers.
Pope Francis is, by all accounts, an endearingly humble and admirable human being. The day following his election, uncomfortable with the opulence of the Popemobile, he rode to his hotel in a sedan, ascended to his room, and, before returning to the car with his pre-Papal luggage, stopped at the front desk to pay his bill. He also has objectionable views on sexuality. Those who find that such views outweigh the value of his Petrine nature and kindness are not required to worship at the church he leads, but it’s time we stopped pretending that the Pope’s character is so black or white that it can be appropriately and thoroughly judged in the five minutes it took us to read about his opinions on the Internet.
Likewise, we mustn’t pretend that the question of TWU’s law school is a simple one. Is a lawyer’s social role different from that of a teacher in such a way as to impose obligations including not just conduct, but also belief? Perhaps that is a loaded question. Maybe the appropriate questions are whether the Supreme Court got it wrong altogether in 2001, and whether professional bodies should be entitled to weigh equality and freedom of religion when accrediting private institutions. Or maybe there is concrete evidence suggesting that TWU law graduates would be less likely to behave as fine and conscientious officers of the court than the signatories of the petition. Whatever the answer, let us see beyond the obvious equality arguments, because they are only one part of the picture.
Indeed, though some of you may find it disappointing, your beloved Obiter isn’t coming down on one side or the other of this debate. That would be irresponsible given the word count available to us. What we can urge with conviction is that you, dear readers, do not succumb to your knees, jerk as they may. Never say anything unless it is worth taking a very long time to say.