As a Bencher of the Law Society of BC, I voted against the accreditation of TWU Law. I was on the losing side of a 20-7 vote. The next day, my wife and I left for a road trip through the American South.
We started in Chicago, marveled at its architecture for a few days and then took an overnight train to Memphis. From there, we drove down the eastern bank of the Mississippi through the “cradle of the civil war” and over Cajun swamps to our final destination of New Orleans. We drove through the rural sun-baked squalor of black Mississippi Delta towns, and the lily-white splendor of former antebellum towns. The ghosts of slavery and Jim Crow still haunted most places that we saw. Entrenched poverty, racial division and inequality remain obvious facts of Southern life.
Our understanding of the Southern black struggle was framed by a visit to the excellent National Civil Rights Museum in Memphis. Located in the former Lorraine Motel where Martin Luther King Jr. was assassinated in 1968, the museum takes you through a series of interactive exhibits on the American civil rights movement (including LGBTQ rights), and then deposits you on the balcony of room 306 where King was shot and killed. Even for white Canadians with lives wholly insulated from racial discrimination, the museum provides a profoundly disturbing window into the experience of hatred and bigotry. It hits you like a punch in the stomach.
But it was the exhibit on Brown v Board of Education of Topeka that brought my mind to present-day Canada. The landmark 1954 case considered whether or not public education systems of racial segregation, premised on “separate but equal” treatment of white and black students, actually served to perpetuate inferior accommodations, services and opportunities for black students. In what is often viewed as its most important decision of the twentieth century, Chief Justice Warren wrote for a unanimous US Supreme Court: “segregation is a denial of the equal protection of the laws”; and “to separate [some children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
While recognizing the legal distinction between public and private education, my mind drew an obvious parallel between the harm that institutional segregation caused black students several decades ago, and the harm that TWU Law’s new brand of segregation will cause LGBTQ students. Deprived of one precious educational opportunity and the many life prospects that follow—all because of a fact of identity no less permanent than skin colour—LGBTQ students will suffer grave losses of human dignity, social inclusion and public standing. In at least a few circumstances, they will be regarded as inferior, treated as inferior, and made to feel inferior for simply being who they are. Such discrimination is behind the exceptionally high rate of self-harm and suicide among Canadian LGBTQ youth and young adults.
Perversely, the parallel between the American South in 1954 and Canada in 2014 is reinforced by some commentators who cast evangelical Christians as the true victims of bigotry in the raging debate over TWU Law. At the furthest extreme, the website therealbigots.com states that the Law Society of Upper Canada’s refusal to approve TWU Law is “the modern equivalent of a “No Blacks Allowed” sign on a restaurant in the 1960’s [sic] in the Deep South.” A milder version of the same argument positions TWU as a well-meaning underdog whose Christian students are subject to constant ridicule and secular disdain.
While undoubtedly true in some circumstances, the unfavourable treatment experienced by some evangelical Christians in Canada cannot begin to compare to the historic abuse, assault, imprisonment and execution suffered by LGBTQ people. It is a rare Canadian neighbourhood where an LGBTQ couple can walk hand-in-hand without legitimately fearing an assault. There are very real and distressing reasons why gay-bashing is commonly associated with physical violence and death. Christian-bashing, on the other hand, commonly refers to verbal ridicule.
If substantial moral arguments for not discriminating against LGBTQ law school applicants are not enough to move TWU Law from its present Community Covenant, the Charter must do the trick. A law society’s refusal to approve TWU Law on the basis of its discriminatory conduct (i.e. its requirement that students ascribe to its Community Covenant) would not unduly infringe upon the freedom of religion of its students or staff. Sifting through the Bible, I cannot find a passage that forbids learning the law next to an LGBTQ person (my knowledge of the Bible is admittedly limited). Nor can I locate a single tenet that requires Christians to be taught in social isolation or educational enclaves that serve to diminish greater social integration, inclusion and mutual understanding. If TWU Law were to admit professed supporters of same-sex marriage, it would not stop other students from living by the terms of an optional Community Covenant, nor from maintaining traditional beliefs about homosexuality.
TWU Law rests much of its case for lawful discrimination on the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers. It is the basis for the perceived rule of law that informed most of my fellow Benchers’ votes in April. But it is distinguishable and no longer good law in light of changing realities. In short, teachers and lawyers belong to very different professions with very different mandates and opportunities for success. Unlike teachers, lawyers are statutorily required to uphold the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons. Finally and most importantly, Canada legalized same-sex marriage in 2005 after eight provinces had already done so. The times— they changed.
If that is all still not enough—if sexual orientation is seemingly the last acceptable basis for institutional discrimination and segregation—then our profession’s leaders can do well to find inspiration and guidance in the American South of over sixty years ago. There, against very long odds, civil rights leaders vindicated the notion that any law that degrades the human personality is inherently unjust.