When Trinity Western University (TWU), a Christian-focused post-secondary institution, announced plans to pursue accreditation for a new law school, a tide of opposition swelled from within the Canadian legal establishment and academy.
A near unanimous chorus of professors, Law Deans, and student groups urged the Federation of Law Societies to reject TWU’s application on account of its homophobic “Community Covenant”. After the Federation and the provincial government approved the program last month, a prominent civil rights lawyer threatened to sue.
Personally, I was not bothered by TWU’s application for accreditation. The human rights opposition has insisted that a “one-size-fits-all” approach is the only way to ensure equality. I wish to offer a broader account of the human rights principles at stake.
Without doubt, TWU’s restrictive, moralistic Covenant is repelling, even offensive, to many gays and lesbians, non-Christians, the unmarried, and bon vivants of various stripes.
The Covenant roots the University’s mission in “the evangelical Protestant tradition”, nurturing a “commitment to the person and work of Jesus Christ” requiring all to abide by “biblical precepts, believing that this will optimize the University’s capacity to fulfil its mission”.
Prospective members are invited to “sincerely embrace” the Covenant. It encourages the cultivation of the Christian virtues of love, joy, peace, patience, humility, mercy and justice; living honestly and with integrity; treating all persons with respect and dignity (from “conception” to death); being responsible citizens locally and globally; and observing modesty, purity and “appropriate intimacy”.
The strict morality of the Covenant means that drinking, smoking, recreational drugs and pornography are banned on campus; wholesome fun is encouraged; and sexual intimacy is to occur only with formal blessing (marriage), between two persons (no polyamory or polygamy), who are of the opposite sex (no same-sex relations).
This is obviously not everyone’s cup of tea. It’s certainly not the kind of social, spiritual or intellectual community I would want to study or teach in.
But that’s precisely the point: the raison d’etre of a private religious institution is to enable members of a minority community to self-select in accordance with their distinct values and shared vision.
Freedom for a religious institution to pursue a legitimate faith-based mission without outside coercion or interference is an elementary principle of statutory human rights law.
Opponents of TWU claim they have no objection to TWU’s existence, so long as it doesn’t join the exclusive law school club.
The problem with this argument is that accreditation is not conditional on the internal values or admission criteria set by academic institutions. And that’s a good thing. The last thing law schools should desire is greater interference in their internal workings by the Federation of Law Societies or the government. Institutional autonomy and academic freedom would be imperilled otherwise.
If TWU is allowed to operate, admit students and confer degrees, as it is, then it also deserved to be judged on the same technical merits that any other institution seeking accreditation as a law school would be.
It’s not the business of the Federation, the Dean’s Council, or the faculty councils of other law schools to meddle in TWU’s operation simply because they don’t believe in the Covenant.
Critics offered various arguments to justify the unusual call to block TWU’s approval. These objections are irrelevant to the process of accreditation. More importantly, none offers a sound interpretation of all the applicable human rights principles at stake.
1. TWU is incapable of teaching ethics, the Charter and human rights
The idea that people who hold personal, faith-based convictions that are contrary to liberal norms cannot effectively teach the law, or approach education with an open and critical mind, is rooted in stereotype, not fact or logic. Not all faith is dogma and not all dogma is faith-based. The ability to think critically is not the preserve of the secular minded.
Any general expectation that law teachers’ personal values will perfectly align with some fixed conception of what the law means is unrealistic. It’s also, in my opinion, undesirable.
Diversity in education requires embracing pluralistic understandings of the law. A good teacher is one who can canvass various perspectives and foster critical engagement with both dominant and divergent norms. A good teacher is not someone who preaches religion, secularism, rights-ism or any ideology.
2. TWU will produce anti-gay lawyers
If the logic is that the Covenant would necessarily produce lawyers who are anti-anything-that-the-Covenant-prohibits, then the problem goes far wider than the production of anti-gay lawyers. Non-Christians, smokers, drinkers, hedonists, single mothers, divorced people, atheists, and women seeking abortions will all have to fear if this illogical argument actually comes to bear.
If the argument is that TWU graduates are more likely to act discriminatorily, then this logic would justify religious and values-based profiling of prospective lawyers—a dangerous and slippery slope.
Moreover, there’s no evidence that secular education prevents discrimination any more than religious education promotes it. Most law schools claim to uphold values of non-discrimination, yet we do not operate on the assumption that graduated lawyers will always be respectful of human rights.
On the contrary, startling data about the prevalence of harassment and discrimination within the legal profession—by graduates of enlightened secular law schools—suggests that law school values do not serve as a reliable predictor of law graduates’ professional conduct.
3. The Covenant will distort the composition of its faculty, demean some members of its student body and send a damaging message to the public
Certainly, the composition of the faculty and student body at TWU will be overwhelmingly Christian, heterosexual and married or sexually abstinent. It will be comprised of self-selected members of a faith community who are bound together by deeply-held (if not immutable) personal characteristics.
Although this composition will fail to represent the diversity of Canadian society, it is a legitimate goal of a private faith-based institution to foster a social and spiritual environment that accords with its religious mission.
The damaging message to the public would be denying minority evangelical Christians the opportunity to earn their law degree in a private, faith-based setting that meets the technical requirements to qualify as a law school. We may as well be saying, “evangelical Christians are not welcome” in the legal profession.
4. The Covenant will produce a “gay quota” to law school admission
If the Covenant produces a gay quota, it equally produces a Jewish quota, a Muslim quota, a common-law partner quota, etc. Public law schools bear responsibility to deal with problems of minority underrepresentation based on social fact evidence.
One unstated assumption of this argument is that evangelical Christians are taking law school positions away from gays and lesbians. This is a false corollary. TWU’s accreditation will not, in true effect, create additional law school spots for anybody in the non-evangelical public.
5. TWU discriminates against LGBT and therefore should not gain legitimacy through accreditation
The purpose of accreditation should not be to bequeath external approval of the internal policies, admissions criteria or teaching methods of law schools. Accreditation is and should be limited to assessing the school’s ability to teach core competencies and skills.
It’s certainly true that the Covenant discriminates against LGBT.
Why the opposition has fixated on the exclusion of gay sex and gay marriage, while saying nothing about other discriminatory aspects of the Covenant is puzzling. A basic tenet of human rights law is that there is no hierarchy of rights.
I look at the Covenant and consider my own position as a straight Muslim law professor who lives in a common-law relationship.
TWU prides itself on being “made up of Christian administrators, faculty and staff”. My job prospects at TWU are nil. I’m worse off than if I were a gay Christian.
To the extent that the Covenant bars LGBT people from enrolment or employment, this is by adverse effect, not direct exclusion.
Similarly, while the Covenant doesn’t ban non-Christians from admission as students at TWU, it’s hard to imagine them ever feeling part of the TWU community if the Covenant is taken seriously.
Thus, non-Christian straight students are about as equally discriminated against as are Christian gay students. Non-Christian gay students would be doubly discriminated against.
To the extent that the Community Covenant regulates sexual activity, it doesn’t adversely affect gay sex any more than straight sex outside of marriage. The adverse impact the Covenant would have on the sex life of an LGBT person (abstinence), is identical to the adverse impact it would have on an unmarried straight person (abstinence).
Whether this ultimate sacrifice would be voluntary or coercive would not be determined by one’s sexual orientation. Rather, it would be determined by the seriousness of one’s commitment to traditional Biblical teachings, which presumably is what would attract individuals to apply to TWU in the first place.
Personally, I take no offence at being excluded from a community whose values I do not share. But that is no reason to delegitimize the community or ban its educational institutions from the law school club.
The well-intentioned opposition to TWU need not make martyrs to the cause of secularism, nor victims out of the very human rights principles they claim to promote. Let TWU have its law school.