02/11/2014 12:15 EST | Updated 04/13/2014 05:59 EDT

Don't Lump Homosexuals in With Criminals

When it opens its doors, Trinity Western University Law School will welcome lesbians, gays, bisexuals and transgendered people. Just be aware, LGBT students, that any sexual manifestation of your LGBTishness will violate TWU's mandatory Community Covenant and you will find yourself in the company of those guilty of destructive communication, harassment, hazing, lying, cheating, stealing, porn consumption, adultery, hetero-but-pre-marital sex, drunkenness and drug abuse. Off-campus drinking or smoking does not violate the Covenant, or the Bible upon which it is based, but the other rules follow you home. Your sexual expression, you see, violates "the sacredness of marriage between a man and a woman". No hard feelings. We didn't write the Bible, we just enforce it.

Controversy has erupted over the decision by the Federation of Canadian Law Societies to grant at least preliminary approval to TWU's proposed law program, as providing a course of study acceptable for bar admission -- which is to say that a TWU law degree will open the gates both to heaven and to the practice of law.

Predictably, the Federation's decision has attracted criticism from academics, lawyers and other members of the public. How, they ask, can a law school that excludes LGBT students from full membership in the academic community be worthy of such approval? Let's remind ourselves that "legally" -- an important concept when judging a law school -- TWU proudly excludes people in a way that governments cannot -- nor can private employers, public service providers, landlords, or anyone else acting in the public sphere. A few kilometres from campus, at Cravings Coffee House in nearby Langely B.C., for example, a refusal to serve lattes to a gay couple, based on the Community Covenant, would be in accordance with Scripture, perhaps, but contrary to law. Like, illegal.

Just as predictably, the backlash has sparked its own backlash from those who say that refusing to accept law degrees from TWU because of equality concerns would give insufficient weight to another legally-protected Canadian value -- freedom of religion.

Professor Dwight Newman, in the National Post writes that efforts by opponents of TWU "betray a desperation to avoid greater diversity in legal academic thought in Canada."

Over at the Globe and Mail, another Professor, John G. Stackhouse Jr. laments that "Trinity Western is being attacked by those seeking to impose a single set of values -- their values -- on all Canadians". "This campaign," he writes, "is just as repressive as anything in Duplessis's Quebec." He concludes that, "it would be well for Canadians to practice, on this issue, the tolerance of diversity and respect for human rights our laws and ideals say we should."

What a surprising inversion. The oppressed are now the oppressors. Those who object to a policy that prohibits, even in private, sexual expression by gays and lesbians are guilty of intolerance. Those who decry exclusion are afraid of diversity. Those who oppose recognition of a law school that enforces a policy that is contrary to human rights legislation in force outside the university grounds lack respect for human rights. A sophisticated, almost lawyerly, invocation of "I know you are, but what am I?"

Professor Stackhouse says that the argument advanced against recognition of a Christian law school is that graduates will be incapable of serving as lawyers for homosexuals. He dismisses this argument as "nonsense", which is probably why I've never heard anyone seriously advance it. There are Evangelical Christians practicing law right now. Each is is legally and ethically bound to represent clients without discrimination, regardless of his or her prejudices, religious or otherwise.

However, it is interesting the way in which Prof. Stackhouse wrestles this particular straw man to the ground. "Lawyers routinely represent clients who act in ways that not only diverge from their own values (as in, say, their choice of sexual parteners) but actually appall their counsel: theft, drug pushing, fraud and murder. All of those lawyers graduated from law schools that can be presumed to frown on such behaviour. Yet lawyers are trusted to provide services to those who act in those ways."

Before I'm accused of twisting his words, let me assure you that I'm not saying that he equates homosexuality with criminality. Probably, he does not. But, he has opened himself up to just such a charge because of a revealing carelessness in making his point. Current law schools frown on criminality; their graduates must represent criminals. TWU Law School frowns on homosexuality; their graduates must represent homosexuals. He draws that comparison, you may draw your own conclusions.

Here's a deal. Don't lump homosexuals in with criminals and I won't lump Bible-belieivin' Christian homophobes with other, less wholesome and loving, kinds of homophobes. When you're on the wrong side of exclusion, it is a distinction without a difference.

Homosexuality is not a criminal behaviour. It is a sexual orientation. Sexual orientation is like race, religion, ethnicity, sex, age and all the other prohibited grounds of discrimination found in the Charter of Rights and Freedoms and in human rights legislation in every Canadian jurisdiction. I assume they'll teach this at TWU Law School. If they miss this fundamental, but not fundamentalist, point, they're in danger of their law degree having the same currency as a diploma from the Amish Institute of Technology.

The Christians at TWU aren't alone in their difficulties with the country that Canada has become as a result of what most of us would describe as "advances" in human rights, equality, inclusion and the accommodation of difference. Social conservatives and Christian fundamentalists have suffered a long string of defeats in the courts and legislatures across Canada -- on abortion, human rights, gay marriage. They may believe that they'd have more success if they trained their own lawyers.

While other Christians may disagree with TWU's interpretation of the Bible, there is no doubt that their position on homosexuality is a "religious" belief. And, yes, as the op-ed writers point out, human rights in Canada includes freedom of religion. But freedom of religion has never included the right to see your particular religious beliefs enshrined in public policy or reflected in public institutions -- especially if to do so would violate the right of others to be free from discrimination. While there is no strict separation of church and state in the Canadian constitutional tradition, in the public sphere, you're not entitled to enforce adherence to religious precepts on non-believers. It's a difficult balance, at times, the accommodation of conflicting rights and freedoms, but it is an essential exercise if Canadian law is to remain true to its values and if we're all to get along in an increasingly diverse country.

TWU's Community Covenant is an exercise of religious freedom. People of faith gather for a common purpose and agree to be bound by rules consistent with their mutually-held religious beliefs. No one is interfering with that. But, in seeking the approval of the Federation of Law Societies for its Christian law school, TWU has left the church, so to speak, and has entered the town square. Graduates will be eligible, ultimately, to practice law across the country. They'll become "officers of the court", actors in the Canadian justice system. Where our lawyers come from is a matter of public interest.

So, of course TWU is going to be be judged and criticized on the basis of considerations that are foreign, even objectionable, to it. When you seek public approval, you invite public scrutiny. The refusal to fully include LGBT students may be completely in line with their religious beliefs, but it is contrary to Canadian values enshrined in law. Welcome to the real world.


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