In the legal world, the story of Trinity Western University has been the star of the show. In fact, it is this very star that has asked us to tolerate religious views which some may see as intolerable. However, given the Charter of Rights and Freedoms, and the overriding duty to accommodate differences in a way that we may not enjoy, a collective nose-holding may be our only option.
For those unaware, Trinity Western is a private Christian university based in British Columbia. The university, in pursuing its Christian mandate, mandates students to sign a “covenant” which does not allow students to swear, drink, use drugs, and notably, to engage in sexual activity which violates a traditional definition of marriage, as between a man and a woman. Of course, this directly engages the interests of homosexuals, who would be barred from attending the school, unless they were to deny who they really are as human beings.
The case of Trinity Western has garnered national attention; law societies across the country are wrestling with accreditation for graduates of the school. In B.C., the Minister responsible for post-secondary education has stripped a previously-issued approval for the school. In January, the Law Society of New Brunswick upheld its previous decision to accredit the school, in a split 12-12 vote.
Full disclosure: I find Trinity Western’s covenant to be contrary to my own personal values, and against what I, and many others, would define as the Canadian ethos.
But what I think is not relevant. In discussing the case of Trinity Western, we must separate our political views from those which are relevant to the important interests at stake. Otherwise, we are doing an injustice to the full scope of the Charter, which equally protects the rights of Christian individuals to practice and the rights of homosexuals to be free from discrimination. In other words, there is no hierarchy of rights here. We can’t pick favourites nor can we invoke politics to justify our view. Sometimes, the Charter will stand to protect things we find most undesirable. But, if we truly respect the Charter, if we truly respect the values that most Canadians hold dear, one right cannot give way to another right except in a certain prescribed situation. This may upset some progressives, but ultimately, the Charter should be paramount over political expediency.
A useful case has already been judicially treated on this point, and it provides the guideposts for the proposition that Trinity Western will, and should, require a national nose-holding. In 2001, the Supreme Court ruled on the constitutionality of Trinity Western’s teacher’s college, whose students were subject to the very same covenant impugned in the law school situation. Holding that Trinity Western could open its teacher’s college, the Court drew a line between belief and conduct — only conduct motivated by religion that amounts to discrimination will effectively bar the freedom of religion when put up against a legitimate equality claim. This line between belief and conduct has long been central to the Canada of the 21st century: where, as much as possible, we accommodate the sincere, peaceful beliefs of all religions and peoples. In this case, since there was no evidence that Trinity Western was turning out teachers who were discriminatory to their students or the public at large, belief did not cross the impermissible line into discriminatory conduct. Denying accreditation could not, for that reason, be justified.
I find this precedent to be compelling. After all, it seems common sense to believe that we will not police, no matter how much we want to, the conscience and internal beliefs of another. No matter how much it bothers us, it is only right that we do not persecute people for sincerely held beliefs. The Constitution should only intervene where that thought translates into discriminatory conduct against another person. So, unless we can show that these law students are going to tailor their clientele to exclude homosexuals, or unless we can show that the students will refuse to practice law with gay or lesbian colleagues, the Constitution should not intervene.
This leads us inexorably to one conclusion. From a political standpoint, we can be uncomfortable, angry, and opposed to Trinity Western and its values. We can petition against Trinity Western, and argue forcefully that the Canadian polity should not accept, as a normative point, the existence of the school. Some individuals clearly are — but it is upsetting that these same people are using the Charter as a sword for their cause, while stopping sincere religious groups from using the document as a shield to protect their beliefs. Like it or not, in the great competition between religion and equality, the rights can be reconciled so long as religious belief does not cross the impermissible line.
Either we respect the Charter, or we don’t. If we do, so long as circumstances don’t change, Trinity Western may be here to stay.
*After the writing of this article, the Supreme Court of Canada released its decision in Loyola v. Quebec, which has serious ramifications for the way the freedom of religion is interpreted under the Charter. To my mind, the decision does not change the basic reconciliation task of the court as described above. However, nothing in this article should be construed as making a definitive conclusion on that point.