Thursday, November 24, 2016

BC Court of Appeal rules for Trinity Western University

When tolerance becomes intolerance
Sometimes a well-intentioned defense of one group’s rights becomes an expression of intolerance towards another group.  Such is the case with the Law Society of British Columbia and Trinity Western University.  TWU is a privately funded, evangelical Christian university seeking to establish a faith-based law school.

TWU has faced an uphill battle since it first submitted a proposal to the Federation of Law Societies of Canada.  After conducting a thorough review of the proposal, the Federation granted its approval for a faculty of law at TWU.  However, the law societies of BC, Ontario and Nova Scotia declined to accredit future graduates of the school.  There have been court challenges in each of the three provinces, with differing results.

In April 2014, after a rigorous debate of the issues, the Benchers of the LSBC approved the school. A few months later, they reversed their decision in response to pressure from members of the Society.  The matter went before the BC Supreme Court and the Court of Appeal. Both courts found for TWU.
The Appeal Court, in its November 2016 decision, found that the LSBC resolution not to approve the proposed law school at TWU would have a “severe impact” on the religious freedom rights of the faith-based community.  LSBC has said it will appeal the decision to the Supreme Court of Canada. 
The cause of all of this litigation arises from one clause in the university’s Community Covenant.  The controversial clause defines marriage as between a man and a woman.  Critics say the clause is homophobic and discriminatory.

The clause may deter students in same-sex marriages from applying to the faculty of law. In this sense, it is discriminatory.  However, this does not mean that the TWU community is homophobic. In fact, hateful attitudes, speech and actions against LGBTQ individuals would violate the covenant; the covenant stresses the innate, God-given dignity, and worth of every individual. 

The innate dignity of the individual is a basic principle of Christianity and is crucial to the Christian identity – an identity that the TWU community takes seriously.

The evangelical Christian identity is founded on a personal relationship with Jesus. Jesus was a friend to the marginalized, the rejected, and the despised – in short, to the “other”.   While he may not have always approved of an individual’s choices or lifestyle, he always honoured and respected the individual. When members of the TWU community sign the covenant, they are also pledging to be more Christ-like towards those that are “other”.

TWU’s view of marriage goes against the grain of contemporary society. Nevertheless, the TWU community must be allowed to uphold its Biblical view of marriage. There is nothing inherently discriminatory or intolerant about a group that makes a distinction between sacramental and civic marriage.

The Appeal Court noted that there is no “downstream” effect flowing from the TWU covenant. In other words, there is no evidence that TWU graduates are homophobic. There is nothing to suggest that TWU would turn out bigoted lawyers incapable of upholding the laws of the land. 

In their well-intentioned defense of LGBTQ rights, some Benchers and members of the Society described the TWU biblical view of marriage as “abhorrent”, “archaic”, and “hypocritical”.    This is strong language.  Its intent may have been to show support for same-sex marriage and LGBTQ human rights. Still, it reveals an intolerant attitude towards religious sexual morality, in general, and the TWU community, in particular. This makes the Society’s decision not to approve the proposed faculty of law at TWU seem punitive.

In our attempts to protect one group’s rights, we run the risk of becoming intolerant towards another. A society serious about promoting tolerance must allow a minority group to hold an unpopular view (providing it causes no harm to the public interest).

In the words of the Appeal Court,  “A society that does not admit of and accommodate differences cannot be a free and democratic society – one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal.  This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”

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