When freedom of religion and equality collide, it often seems that only one side can win and the other must lose.
Recently, equality was the loser.
British Columbia's Trinity Western University (TWU) is one step closer to launching a private, Christian law school where students are prohibited from engaging in gay "sexual intimacy." The question of whether or not the university could start a law school, despite its anti-gay "code of conduct," was answered in the affirmative on Monday by the Federation of Law Societies of Canada, even though many in the legal community opposed the school's establishment.
It's not unusual for freedom of religion to trump individual rights. Indeed, in a democratic society like Canada, where both equality and freedom of religion are entrenched rights in our Charter of Rights and Freedoms, the two do at times compete, and freedom of religion, does, occasionally, win.
What makes this case especially disconcerting is where freedom of religion is being permitted to trump basic equality.
The "where" is a potential law school: the very place where students learn and train to become champions of equality and promoters of justice.
Those of us in the legal profession flatter ourselves that the law is one of the greatest tools in advancing justice and in fighting inequality. Before being admitted to the bar, we take an oath to uphold the rule of law and to safeguard the rights and freedoms of all peoples.
Law students and lawyers are the very people who have fought (alongside activists and claimants) to ensure that people are not discriminated against based on their sexual orientation, and that sexual equality extends to people of varying sexual orientations.
So how can it be that a law school, the very place that should be the safest bastion for studying and promoting equality, so blatantly violates this fundamental right?
It is certainly essential that students in law school freely discuss how our various fundamental rights and freedoms may clash. Students must think about whether these rights are at times irreconcilable, and how lawyers, judges, legislators and society should deal with such conflicts. But to build a law school that is founded and operates on inequality, one that rebukes one of our fundamental rights? That is contrary to all that we have come to associate with the law, at least since the inception of The Charter of Rights and Freedoms.
A law school that bans homosexual behaviour is the antithesis of all that is taught within its walls. A law school that violates one of the fundamental rights in our democracy makes a mockery of those rights.
The legal arguments in support or against the establishment of such a law school will centre on a few issues: The first will be whether The Canadian Charter of Rights and Freedoms applies to a private university. The second will be whether the British Columbia Human Rights Code grants religious academic institutions an exemption from complying with the Code.
In other words, in order to give meaning to freedom of religion, should such an institution be permitted to violate basic equality rights? Another argument against the establishment of the school, and one upon which lawyer Clayton Ruby and his team have already focused in their arguments before the Federation of Law Societies of Canada, is that preclusion of gay students from TWU law school creates discriminatory quotas, as there will be fewer law school spots available to gay law school applicants than to heterosexual ones.
These questions are both important and relevant to the legal analysis. They will be explored further, as Ruby and his team intend to appeal the Federation's decision. (They are currently raising funds to cover some of the costs of this appeal.)
However, regardless of how these questions are answered, as citizens, we must oppose the establishment of a discriminatory law school on even more fundamental grounds. Our sense of morality and of natural justice should demand that no law school be permitted to operate under blatantly discriminatory "covenants."
It matters that it is a law school that TWU wants to establish. It matters that the discriminating institution is an institution that is supposed to be dedicated to the promotion of equality, rights, and justice, not one that requires the violation of one of those rights.
In 2013 Canada, it would be paradoxical to permit the operation of a law school that overtly discriminates against those who are gay. After so many gay communities and their allies fought hard to win recognition of homosexuals as a group that must be afforded equality protections, and after such wins came primarily through long legal battles, how can we reconcile permitting a law school to discriminate against gay students?
Freedom of religion may, at times, justifiably be permitted to trump certain other rights. But would we permit a law school to use freedom of religion to preclude black students, women, Muslims or Jews from its walls? I think not. We ought not. How, then, can we permit a law school to exclude students based on their sexual orientation?
Lawyers are sworn to pursue and to protect justice and equality. We cannot permit law students to learn about this pursuit in an environment of blatant inequality.
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