HARJOT ATWAL
<Staff Writer>
“The social intuitionist model offers an explanation of why moral and political arguments are so frustrating: ‘because moral reasons are the tail wagged by the intuitive dog.’ A dog’s tail wags to communicate. You can’t make a dog happy by forcibly wagging its tail. And you can’t change people’s minds by utterly refuting their arguments.”
–Jonathan Haidt, “The Righteous Mind: Why Good People Are Divided by Politics and Religion” (2012).
I first heard this quote at the National Christian Law Student Conference in February 2012, and then used it in an article published on Canadian Lawyer 4Students Magazine entitled “Christians Can Be Cool.” Today, I’m going to use this quote to explain the difference between argument and rhetoric.
When I was younger and irritated with my parents, my method of arguing was the following: “I’m right. You’re wrong. Either love me, or leave me alone.” Having since taken “Informal Logic,” “Formal Logic,” and “Argumentation Theory” during my undergraduate degree, I now know that really wasn’t an argument at all. It was merely rhetoric.
In my mind, this very same rhetorical problem is what truly creates controversy in the now well-publicized debate about whether Trinity Western University (TWU) should become accredited as a law school, despite the fact that they seek to enforce a “Community Covenant” where LGBT individuals would need to respect the Christian view of marriage in their personal lives.
On one side, you have the Christian community, and they have some legitimate arguments. Christians are outraged by the idea that they would not be able to train competent lawyers that respect all enumerated and analogous grounds under s.15 of the Charter, including “sexual orientation.” They will point you to a variety of arguments, including the fact that TWU has received an A+ rating every year in the Globe and Mail for its quality of education since 2005, in addition to the case of Trinity Western University v. British Columbia College of Teachers which essentially decided that there was no evidence that TWU’s teaching program discriminated against LGBT students.
On the other side, you have the LGBT community, and they also have some legitimate arguments. LGBT individuals contend that TWU’s implicitly discriminatory community standards are not suitable as a forum for legal education, largely because they marginalize individuals on the basis of “sexual orientation” in a manner contrary to the Charter. Indeed, the petition distributed by the Osgoode OUTLaws states: “While the Charter may not apply to private schools such as TWU, all law schools should seek to uphold it.”
In the last two paragraphs, I have purposefully avoided using rhetoric. Now, let me show you how it clouds the issue.
On one side, you have Christians making ridiculous comments about how Lord Denning kept a Bible near him while writing his judgments, and that he claimed “It is the most tattered book in my library.” On the other side, you have LGBT individuals criticizing the fact that TWU cites biblical verses when justifying its Community Covenant, such as Romans 1:26-7, and you may occasionally see memes like the one I have included with this article.
Then, you have people who are really on neither side, and don’t care about the issue. Lastly, you have someone like me; I am on both sides and just want to see justice done.
At the end of the day, I’m still a Christian even though I signed the letter distributed by the Osgoode OUTLaws. I could point you to all kinds of arguments regarding biblical interpretation of homosexuality, and then criticize people who subscribe to biblical literalism in a very intelligent and argumentative way. On the other hand, I could make fun of literalists by comparing them to legal originalists like Justice Scalia (who, by the way, thinks all kids should read all 85 volumes of the Federalist Papers before graduating high school, in order to understand what Thomas Jefferson and his pals were thinking when they created the United States’ Constitution).
However, as I continue to say in a rather exasperated tone, such Justice Scalia or Lord Denning comparisons are just rhetoric. They are not argument. Thankfully, while I cannot change people’s mind by utterly refuting their arguments, I can and will continue to utterly refute any and all rhetoric.
Now, since I believe this former Logic TA has adequately explained the difference between argument and rhetoric, let me tell you what worries me about the debate I have seen. Basically, groups who claim to be marginalized, such as Christians and the LGBT community, continue to marginalize each other in order to fight for their rights. Do you see how circular that logic sounds?
Instead, I beg everyone who has debated this issue to remember the following. Religion is an enumerated ground under s.15 of the Charter. Sexual orientation is an analogous ground under the same section. S.15(1) starts off with: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”
Equality rights are at issue on both sides of the debate. Do me a favour. Go study for your exams, and leave the analysis of conflicting Charter rights for an adjudicator to decide.
Note: As of the Obiter Dicta’s deadline, three submissions were received concerning the proposed law school at Trinity Western University, all of which appear herein. The Obiter’s official position on the proposed accreditation is diplomatically vague and was expressed, complete with multiple allusions to the Lord of the Rings, in the March 25 editorial.
However, we do understand that this is a topic on which many Osgoode students hold diverse opinions. There having been no poll, it is impossible to say which position is the majority opinion (if there is one) and which is the minority. In either case, no point of view holds a monopoly in these pages.
In the spirit of debate, the Obiter will continue to accept thoughtful submissions of less than 1200 words on the topic until Thursday, April 11, and will publish them forthwith in its online edition.
We also encourage you to make liberal use of our Comments section below!