A Gay-free Law School?

On August 14th, Trinity Western University, a small Evangelical college in British Columbia, announced that, given the choice between (a) creating an unaccredited law school that prohibited its members having sex outside heterosexual marriage and (b) creating a fully accredited law school open to lesbian, gay, and bisexual students  it would prefer accreditation to orthodoxy.  Its choice was prompted, no doubt, by reflection on  a pair of cases that TWU had argued up to the Supreme Court of Canada, claiming that the law societies of British Columbia and Ontario had, in denying accreditation, violated TWU’s freedom of religion.  The Court reaffirmed the broad authority of law societies to regulate the profession in the public interest, including the interest in diversity and equality, and held that the law societies’ decisions were reasonable on the applicable standards of review.

The cases are of significance to the relationship between administrative law and human rights, but my interest is in their handling of freedom of religion.  I deny that the accreditation process was even a prima facie infringement on freedom of religion.    The Court’s misapplication of its own standard of ‘sincere belief’, and its unworkable view of the boundaries of religious liberty, set misleading signposts in the increasingly politicized field of freedom of religion.

Religious schools and colleges often have restrictive codes of campus conduct, and many of these are, and should be, tolerated in the name of religious freedom and social diversity.   But TWU’s ‘Community Covenant’ was different.  TWU required all law students and staff, of whatever religion or sexual orientation, to abstain from all sexual intimacy outside heterosexual marriage, not only on campus but also off it, not only in term time but even at home, and over the vacations.  The comprehensive ban on extra-marital sex (along with some other restrictions) applied to straight students as much as gay ones; but straight students could, if they wish, enter a heterosexual marriage—the only kind acknowledged by TWU. Thus, although gay students were not prohibited from studying law at TWU, they would be effectively prevented from doing so.  No romance on campus—but also no going home at the end of a long day, in anticipation or relief, to the embrace of a partner, or to a night at the club with friends.   To speak plainly: as far as it lay within its power, TWU wanted to create a gay-free law school.  This is the ‘freedom of religion’ that a university asserted in court.

TWU did not, of course, assert a religious right to create a law school, let alone an accredited one.   Had their claim been discrimination on grounds of religion, this would not have mattered.  You can discriminate against Jews by refusing to hire them in your firm, even though being a lawyer is no part of the Jewish faith.  But TWU was not taken primarily as a discrimination case.   TWU (or more probably, its lawyers) played the American gambit of ‘weaponizing’ freedom of religion as a way to resist policies they oppose on many grounds: policies of social inclusion, diversity and gender equality.   Such opposition is ideologically consonant with many conservative religions; but that fact no more brings it under freedom of religion than it brings tax cuts under freedom of religion.

TWU’s theory seemed to be this:  (a) TWU had a sincere religious belief that gay sex is wrong, and (b) (quoting its factum in earlier litigation) it believed in ‘the importance of being in an institution with others who either share that belief or are prepared to honour it in their conduct’.’ Some undergraduate TWU students avowed they valued a learning environment in which others supported their values and said that, if given the choice, that is the sort of law school they would prefer to attend.

As a theory of religious liberty, this is a spectacular failure.  None of these assertions about the preferability of studying ‘in an institution with others’ who share one’s beliefs comes close to claiming, let alone justifying, a right to the extra-mural conformity of all other students, Christian or not.   Nor does a religiously-based preference for a certain policy satisfy the test for religious conviction set out in prior cases.  Neither authority nor orthodoxy is required, but in Canada the claim must involve a sincere belief, ‘having a nexus with religion, which calls for a particular line of conduct’(Syndicat Northcrest v Amselem  para 56, emphasis added).  The requirement of a felt compulsory character to a doctrine—something one must do, not merely something one would prefer to do—was reaffirmed in Multani  v.  Commission scolaire Marguerite-Bourgeoys (‘an individual must … show that he or she sincerely believes that a certain belief or practice is required by his or her religion’. (para 35, emphasis added))

The mis-match between TWU’s asserted belief and its proposed policy was glaring, and the harm to equality of opportunity, and dignity, for gay students (and others) was plain. On such facts, it is easy to see why the Law Society of British Columbia and the Law Society of Ontario, refused to accredit a law school proposing to operate that way.   The law societies have a duty to regulate the profession in the public interest, and in Canada sexual orientation is a constitutionally prohibited ground of discrimination.   It seems beyond doubt that, as regulators, the laws societies could have come to their decisions reasonably, and that the Court would therefore not second-guess them.

But how did the religious liberty theory even get to first base?   It is important to bear in mind that the issue is not whether TWU could teach law from a Christian perspective, or refuse to offer ‘Sexuality and the Law’ seminars, or ban rainbow flags or gay clubs from campus.   The issue is whether its religious freedom includes the right to prevent (without formally prohibiting) the admission of gay students and the hiring of gay professors, on the ground that that will produce the sort of environment that Evangelical students prefer to study in.

Canadian constitutional law follows the familiar pattern of assigning to the claimant the burden of proving a limitation on his right, and to the relevant authority the burden of justifying that limitation, if it can, through a balancing test.  There is controversy about whether lax analysis at the first stage impedes or confounds a fair and reliable inquiry at the stage of justification.  In the TWU cases, the majority’s laxity is evident and consequential.

A religious conviction or practice can merit protection even if it is unorthodox, idiosyncratic, or insane.  But it must have a ‘nexus’ with religion, and it must be sincerely held. In Amselem the Court held that a judge must ‘ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.’  This offers poor guidance.  The contrast-class to ‘sincere’ (i.e. ‘insincere’) is here illustrated by a hodgepodge of examples none of which are necessary and some of which are insufficient as marks of insincerity.   One can be insincere just to be polite (‘I like your tie’), or as a conventional gesture (‘Nice to see you’), or to avoid conflict (‘I suppose Trump has some merits’), or to assert something for sake of argument (‘OK, agreed that free trade is ideal, nonetheless…’), or as an understood hyperbole (‘The World’s Best Burgers!’)  Religious beliefs are frequently asserted with such inflections of insincerity.  (As are many other forms of conscientious belief.) In particular, religious affirmations often function as conventional, rote markers of identity, or as strategic moves in a conversational gambit.   As such, they do not express the speaker’s sincerely held beliefs, but neither are they capricious, fictitious, artificial, or uttered in bad faith.    My feeling is that, in TWU, the majority felt timid about inquiring into the university’s sincerity because they wrongly associated an insincere claim with a claim in bad faith, or even with some kind of lie.

A better test for sincerity in this area is that that there should be correspondence between the asserted belief and the action or policy meant to serve that belief, that there should be a willingness to act on the belief where that is feasible, and that affirmation of the belief should not be merely conventional or strategic.  TWU’s assertion fails this test.  A sincere belief about the value of a religious educational environment does not reach its claimed right to exercise total control over the sex lives of all its students.   Moreover, although all students would be compelled to agree to the Covenant, the university exhibited no plans to supervise their conduct, and it occasionally hinted that it would not do so.  Was this a compromise with students’ rights of privacy, or a sign the Covenant was merely of conventional, expressive value, a signal as to what sort of people would fit in to the proposed law school?   That would be nearer a niche marketing strategy than a sincerely held religious conviction.  The Court should have tested this.

Then there is second, logical, difficulty.   There cannot be a right to freedom of religion that guarantees an environment in which everyone’s faith meets as few challenges as possible.    Religions conflict.   What advances one sets another back.  It is easier to be an Evangelical Christian in an environment without Anglicans or Jews (and, perhaps, gay people), but it is also easier to be an orthodox Jew without the background ‘mood music’ of Christianity.  Are ghettos the ideal?  Or do religions have the right to take their preferred environments along with them when, as in most modern societies, people move and mix? And what about internal minorities within religions?   There are already (closeted) gay students and  faculty in the undergraduate programme at TWU.   Are their rights satisfied by the Community Covenant’s contract of adhesion?  Is it enough that, if they don’t love TWU Law they can leave it, even if no other law school will admit or hire them?

Owing to the protean and competing nature of religions, it is a fantasy to think that we could fix the limits of religious freedom to ensure that such conflicts never arise.   But we can moderate them, and a good place to start would be with a sharper definition of freedom of religion.   Amselem and Multani, diligently applied, set the right direction, and help us understand why TWU was so misguided.  The traditional area of religious freedom comprises the liberty of beliefs and practices considered by the believer to be obligatory, together with such immunities and resources as are necessary to live openly and honestly in light of those beliefs.  John Locke—the Evangelical!—put the case well:

[S]ince men are so solicitous about the true church, I would only ask them here, by the way, if it be not more agreeable to the Church of Christ to make the conditions of her communion consist in such things, and such things only, as the Holy Spirit has in the Holy Scriptures declared, in express words, to be necessary to salvation; I ask, I say, whether this be not more agreeable to the Church of Christ than for men to impose their own inventions and interpretations upon others as if they were of Divine authority…’

Locke is speaking only to fellow Christians and only of communion, but his idea is of universal importance. It is one matter to ask others to share the burdens of toleration with respect to things one sincerely believes ‘necessary to salvation’; it is quite another to impose on them one’s own ‘inventions and interpretations’ of preference.   This resonates with the analysis offered by Justice Rowe, who concurred with the majority outcome in the case, but disagreed that TWU’s religious freedom had been infringed.  He wrote, ‘I do not see how the majority can have it both ways. The logic of their position seems to come down to this: the claimants have a preference for a practice that is not required, but is nonetheless protected by s. 2(a); however, as the practice is not required, but only preferred, its infringement is of little consequence. In my view, this analysis reflects an overbroad delineation of the right, leading to the infringement being justified too readily.’  That is broadly correct.

Perhaps a gay-free environment would make it easier for certain Christians to lead the sort of lives they want to live, including at law school.   But remember that a Jüdenfrei environment was thought to make it easier for another kind of Christian to lead the sort of lives that they wanted to live.   I not here suggesting any moral equivalence or slippery slope.  Yet the craving for uniformity, for a community free of the Other, is a symptom of moral failure.   In a law school it is a symptom of intellectual failure.  Were it ever endorsed by a court as an aspect of freedom of religion, it would also be a jurisprudential failure.

3 thoughts on “A Gay-free Law School?

  1. So the obligatory contents of a religious practice are to be decided by courts? Or do I misunderstand your view?

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    • I think you may have. My proposal—and, before TWU, the test the Court applied—is whether THE CLAIMANT sincerely considered the practice required, or in some sense called for. Compare Amselem with, say, the Scottish Church Property Cases.

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  2. Under cover of pseudonymity, “Eddie” writes at length in response to my post on TWU. So thanks for that. Setting aside some ad hominem remarks and homophobic laziness (and some legal errors), he or she also raises points that allow me to clarify, or anyway repeat, some points that are, in my view, important to understanding these decisions.

    1. “Eddie” writes, ‘It is nothing less than absurd to claim that a religious Christian organization does not have a sincerely held belief in the moral wrongness of sex outside of heterosexual marriage.’ This is quite correct. The Roman church, for instance, declares homosexuality an ‘objective moral disorder’. Many (but obviously not all) Catholic priests and cardinals are sincere in that belief. But the absurd claim “Eddie” mentions has little bearing on this case. No one, and certainly not the law societies of BC and Ontario, denied TWU’s liberty, or Evangelicals liberty, to abstain from gay sex. No one even denied them the liberty to set up a law-school conformable with that belief. Their complaint was that, the refusal to *accredit* a law school that compels celibacy of all its non-heterosexually married applicants is a violation of TWU’s own religious liberty. (I am not making this up: read the pleadings.) That is a very different argument, and the one the Court (as a matter for judicial review) had to test. An accreditation is not a Boy Scout badge. It is a promise to the public (and, in Canada, that means a promise to a public in which discrimination on grounds of sexual orientation is unconstitutional) that the institution serves the public interest. Some places (the US, Russia, Saudi Arabia, Iran, etc) still harbor doubts about whether there is anything wrong with sexual orientation discrimination. In most democratic countries, however, it is part of the human rights aquis.

    2. ” What you propose as a test for sincerity (“that there should be correspondence between the asserted belief and the action or policy meant to serve that belief, that there should be a willingness to act on the belief where that is feasible, and that affirmation of the belief should not be merely conventional or strategic”) is an incredibly high bar that would likely render s. 2(a) utterly meaningless.” I don’t see that. Courts need to have a test for the sincerity of a claimed religious conviction. It cannot possibly be whatever the claimant’s lawyers assert in the pleadings. I explained why the existing test is too weak: I think it wrongly confuses an insincere claim with a bad faith claim, or perhaps with a lie. In these contexts, ‘sincere’ functions as an attributive term, not as a predicative one. Roughly, (and consistently with existing law) it means, ‘Sincere *as an expression of a believed religious obligation*’. As both the majority, and Rowe J in his concurrence, point out, TWU did nothing to establish that TWU (or the individual claimant) sincerely believed that Evangelicals have a religious obligation to ensure that any law school they might establish neither admit nor hire gay people. (By the way, if they did, that would be unlawful on other grounds.) At most, they sincerely affirmed that they thought this would be a *preferable* environment for Evangelical students to study in. That is all well and good. But as Rowe J rightly says, it is not on point. As far as freedom of religion is concerned, question isn’t what they would prefer; it is what would violate their (sincerely affirmed) religious obligations.

    Now, my own grasp of the facts is admittedly second hand. But I think they support the view that TWU was actually not all that serious about this. Or rather, they seriously preferred it, but they gave no evidence (the burden was theirs) to show that they seriously thought they had a religious obligation to keep gay students out of their law school. A fact not mentioned in the cases (for obvious reasons) is that, a TWU gay-free law school would be a ‘bottom feeder’ in terms of the qualifications of its entrants. It is very unlikely that any BC student offered a place at UBC Law or Victoria Law would turn it down in favour of TWU, not even an Evangelical student. So TWU, if it is to have a law school at all–and the income and prestige that potentially brings–needs some kind of niche market. Perhaps it wants to reach that (minority) of Evangelicals who think, not only that gay sex is wrong, but also that it is wrong to go to law school with the kind of people who might think otherwise. I’m not sure how much of a market there is for that, but there is probably some.

    3. “Eddie” assesses the plight of the marginal gay law applicant, who might make the cut at TWU but never at UBC or UVic, in this way: ‘[This] is what critics of TWU were after: No gay student should have to suffer the terrible pain and indignity of going without sex for three years, even if they voluntarily agreed to abide by such a rule.’ Correct. That is how the law societies, and the Court, assessed it. And I concur. But they (and I) think, as “Eddie” apparently does not, that this *really is* an indignity. And we think, as “Eddie” apparently does not, that to put such terms to 20-something students as a condition of an accredited law school place is to offer them an unconscionable contract of adhesion. Possibly “Eddie” is thinking of an accredited law school as a purely private entity, like the Freemasons, who can set just about whatever membership criteria they like. (Though, I note, even the Freemasons admit gay men, and now also admit FTM transexuals, an MTF transexuals who were male at the time of initiation.)

    TWU has now backed down in light of the legal arguments. TWU now thinks–on reflection– it might not violate their own religious principles to admit openly and actively gay students to their law school. I don’t think they should be mocked for this. Mormons backed down on polygamy when it became clear that the US Constitution could not accommodate their (sincere) beliefs, and more recently the Southern Baptist Convention backed down on their belief in the Biblical prohibition on interracial sex and marriage, in light of Loving v Virginia. These churches are now better–and better as churches–for having let go their misogyny and their racism. Is it too much to hope that some Evangelical sects could also be redeemed? The Gospels tell us not to give up on them.

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