If you don't support same-sex marriage, don't look for a legal career in Canada

June 26, 2014

Currently there is something like a collision of two galaxies going on here in Canada. With its efforts to start a small Christian law school, Trinity Western University has set off a massive head-on confrontation between the same-sex rights movement and Evangelical Christianity.

The result so far has been an incredible and unprecedented war within the legal profession, which has seen Ontario and Nova Scotia’s law societies take controversial and shocking steps to bar TWU graduates from becoming licensed in their provinces. In British Columbia, we have witnessed literally thousands of lawyers revolt against their own law society and demand that it, too, reverse its earlier positive decision and take a stand against Trinity Western University. And now, with the launch of Trinity Western’s legal challenge against the worst rebels with a cause, the whole show is on the road and headed for a finale in the Supreme Court.

Community Rules: Is it okay to say no to gay sex on campus?

At the epicenter of this storm is this question: can a Canadian law school ask its students to agree that same-sex marriage is wrong? Trinity Western University maintains a community covenant that spells out its Christian code of conduct, beliefs and mission. This covenant is 4 pages long and asks its students to, among other things, “treat people and ideas with charity and respect” and “cultivate Christian virtues”.

That would all be just fine, but the covenant also prohibits sexual intimacy “that violates the sacredness of marriage between a man and a woman” and emphasizes that sexual intimacy is “reserved for marriage between one man and one woman”. All students and faculty are asked to agree to this covenant if they choose to attend Trinity Western University. 

Unfair discrimination or religious freedom?

Many of the lawyers who have been up in arms about Trinity Western University are alleging that this covenant discriminates against LGBTQ persons by making them feel not welcome on campus, by asking them in effect to deny their sexuality and requiring them to abstain from sexual relations even in a civil marriage. The upshot of the argument is that a school which discriminates against gays and lesbians isn’t qualified to teach law.

But the word “discrimination” already skews the debate towards the perspective of TWU’s opponents. Here is another way to pose the question: does Trinity Western University have the freedom of religion to maintain a campus covenant which asks students to abide by its religious teachings, including the tenet that sexual relations are reserved for heterosexual marriage?

There seems to be no possible compromise here. If Trinity Western puts its religious morality into action on the campus of its fledgling law school, then homosexuals will cry discrimination. But if this small, private Christian school is forced to allow its campus to become the antithesis of its own religious faith teachings, this is a serious restriction on the public expression of its faith, and might even eliminate the very raison d’etre why such a school exists in the first place. A religious private school is not in the business of providing a secular education that merely echoes the creeds of contemporary political correctness.

To put it bluntly, either sexual orientation or religious orientation will have to retreat into the closet at Trinity Western. Either the gays and lesbians who choose to attend, fully aware of Trinity Western’s creed regarding same-sex sexual relations, will promise to respect the school’s faith beliefs, or the Evangelical Christians that run this small, faith-based school will have to forget about maintaining a campus reflective of their own religious teachings and morality. 

The Supreme Court votes in favour of religious freedom

Thirteen years ago, when the Supreme Court of Canada considered this very question, it decided in favour of religious freedom for Trinity Western University. In a case that involved the B.C. teachers union refusing to allow TWU graduates to become teachers due to their opposition to same-sex marriage, the Court acknowledged that gays and lesbians might not want to apply to TWU, but it concluded that no major harm would be done by such students going elsewhere. 

In other words, the Supreme Court found that protecting the religious freedom and freedom of expression of Evangelical Christians at Trinity Western University, as a faith community formed by free association based on their adherence to certain religious and moral values, was more important than the right of anyone to engage in open same-sex relationships on their small campus, especially given the enormous wealth of alternative schools available in British Columbia. In the Court’s own words: “While homosexuals may be discouraged from attending TWU, a private institution based on particular religious beliefs, they will not be prevented from becoming teachers.”

Rebellion of the lawyers

But the times, they are a-changing. While the 2001 decision of the Supreme Court is still good law here in Canada, many of our most prominent lawyers are now openly defying this decision, as evidenced by the tidal wave of protest by law societies across the country.

Ontario, Nova Scotia and B.C. are but the tip of the iceberg. Important groups of lawyers in other provinces have also been been voicing their opposition to TWU. In Alberta, the President of the Law Society issued a statement saying that “we are aware of and concerned about the impact of the TWU community covenant on gay and lesbian students”, and “we would welcome a judicial determination on this question. We would also welcome the opportunity to work together with the other law societies in Canada, through the Federation, to consider amending the law degree approval criteria to address these issues.” Manitoba’s law society met on this question in late May and decided to do nothing because “ the Federation of Law Societies of Canada may shortly be reviewing the national requirements”.

End of religious freedom for all lawyers in Canada?

What is coming next? Get ready for the end of religious freedom in the legal profession, if the national Federation of Law Societies decides to change the law degree approval criteria to include some kind of litmus test on same-sex marriage for faith-based schools. Will official support for same-sex marriage soon become a prerequisite to being an approved faculty of law? Will support for same-sex marriage perhaps even become a prerequisite to licensing for individual lawyers in Canada?

Move over Justin Trudeau, your abortion decree within the Liberal party will have just been made small peas by the lawyers of Canada. Indeed, it is a short step from requiring Trinity Western to abandon its religious morality on campus to requiring all lawyers to personally support same-sex marriage. Lawyers who believe that sexual intimacy should be reserved for marriage between a man and a woman, even if they are not graduates of Trinity Western University, represent the same alleged threat of “discrimination” in the legal profession, so it follows that sooner (rather than later) they too will be an item on the law societies’ agenda.

They said this would never happen

How far we have come, at breakneck speed. Rewind to 2005, when same-sex marriage was just being enacted. At the time, opponents of the new law were being smothered in all kinds of assurances of religious freedom:
  • The Supreme Court stated, in its Reference Re: Same-sex Marriage, that “The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded”. 
  • The Civil Marriage Act itself was padded with rhetoric protecting divergence of opinion, stating that “nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs”, and “it is not against the public interest to hold and publicly express diverse views on marriage”, and: 
“no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”
Note that in the above paragraph, Parliament is only promising that there won’t be any federal law that violates religious freedom on this question. Right from the start, there was no assurance of religious freedom continuing to be respected by quasi-governmental institutions like the Federation of Law Societies. Still, in the social climate as it was back then, most people never considered the present situation a possibility. The belief in the traditional heterosexual definition of marriage still had considerable clout and respect among the leaders of society.

Christians as the new anti-Semites, racists and misogynists

A decade later, as I discussed in an earlier article, Christians who oppose same-sex marriage are being proclaimed the new public enemies, analogous to irrational racists, anti-Semites or misogynists. The British Columbia and Ontario law societies provide online public transcripts and even recordings of their debates on Trinity Western, and it is disturbing to see such comparisons being made by numerous Benchers. Keep in mind, these are some of the most influential lawyers in Canadian society!

One of the most outspoken Ontario Benchers who opposes Trinity Western is Clayton Ruby, a prominent defense lawyer whose clients have included the first openly gay Canadian Member of Parliament, Omar Khadr’s brother, and the anti-capitalist group that started the Occupy Wall Street movement. Mr. Ruby has called the belief in heterosexual marriage “stupid” and “hateful”, and has compared it to racism and anti-Semitism. He has further said:
“A minority within Christianity is entitled to believe that being gay is antithetical to Christianity; that it is an abomination. They are entitled to teach such silliness and try to persuade others to adopt that view. But we should remember that though they assert that the Bible is the sacred authority, and must be accepted literally, law schools ought to accept and teach the Constitution. In Canada we draw a line between discriminatory belief and discriminatory acts.”
Free to think, but not to act

If Clayton Ruby and the increasing numbers of lawyers who appear to agree with him have their way, then our religious “freedom” will effectively be reduced to the confines of our heads. Since mind control has yet to be developed, we will still be “free” to think whatever we want, but don’t try living out your religious beliefs in any public way.

Mr. Ruby doesn’t want to sound that extreme just yet, and so for now he states that Trinity Western has the right to teach their “silliness” (though he would not permit their graduates within the ranks of his profession). The trouble is, the logic of his own analogy to anti-Semitism and other forms of irrational hate demands that our laws should not permit such crazy, hateful beliefs to be propagated on any campus. Would we allow any school in Canada to teach white supremacy?

If Trinity Western’s Covenant is really “hateful” for its confirmation of traditional marriage, then surely, gay students who choose to attend TWU should still be spared demeaning and “hateful” lectures on how their sexual behavior is not acceptable. If Mr. Ruby is pressed on the issue, he would most likely have to concede that Trinity Western should not be permitted to be teaching “hate” at all. (Indeed, he contradicts himself later in the same quote by insisting that law schools should teach the Constitution - thus, how can Trinity Western’s law school also teach its “silliness”?).

Christian beliefs as the new "hate speech"

This is where we are: things are getting serious as the effects of the legalization of same-sex marriage are coming home to roost, so to speak. The Civil Marriage Act did much more than usher in gay marriage. It has helped to alter our fundamental attitudes about the nature of marriage, and it has enabled a far more effective social ostracism of its opponents.

Now this shift in philosophies is hardening into an official public exclusion of proponents of traditional marriage from professional life and even from the realm of education. The very ability to oppose same-sex marriage is becoming circumscribed as it becomes synonymous with irrational “hate” and discrimination, and thus increasingly falls outside the once-promised protection of religious freedom and freedom of conscience.

In 2001, the Supreme Court argued that “It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities.” The Supreme Court found that religious freedom protected Trinity Western and its covenant, and therefore, its graduates could not be excluded from professional organizations.

Today, many of our lawyers are thinking backwards: they find the belief in traditional marriage so odious that they are unwilling to admit TWU graduates among their ranks; as such, they insist on forcing the conclusion that Trinity Western’s Covenant is outside the protection of religions freedom, even in clear opposition to actual legal precedent.

The showdown is coming: stay tuned

Now that Trinity Western has gotten the ball rolling into the courts, the Supreme Court will be addressing this issue again in the near future. Will it affirm the religious freedom of Trinity Western University, as it did over a decade ago? Or will the nine Justices move on with the times and agree with the majority of their Ontario colleagues, finding that Trinity Western must eviscerate itself as a faith institution if it wants to produce lawyers?

Religious freedom in Canada hangs in the balance, attacked by the very profession that is supposed to guard it most zealously. If our lawyers no longer uphold our freedoms of conscience and religion, then the future looks more totalitarian indeed.

Photo: scazon via photopin cc

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