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.

Should Parliamentary Sovereignty Trump Popular Sovereignty?

On June 23rd the UK referendum on membership in the European Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision into law; but they understood that something would. No one supposed that a clear result might be treated as a helpful hint to politicians, or as a preliminary comment in a national seminar on the constitution.

Today’s judgment in the High Court repudiates that understanding. (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including  treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.

The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]

If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided.

I agree that the question was wrongly decided. I also think that referendums are a very poor instrument of ordinary governance. But when what is at stake is the boundary of a constitutional people, we have no better procedure than a referendum, and courts should use their powers to uphold, rather than undermine, the result. Those who regret the result (as I do) should spend less time trying to overturn or forestall it, and more time trying to rally opinion around one of the better options that it has left open. Lawyers shouldn’t feel sidelined: whatever happens there will be work for them.

Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states.

What we might call English Constitutional Theory has long distrusted popular sovereignty.  An influential line of thought running from Hobbes, through Blackstone and Bentham, to Dicey and Jennings, equates popular sovereignty with Parliamentary sovereignty. Even today, the High Court repeats with approval Dicey’s words : ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’. Of course, it is plausible to think that the ‘will of the people’ needs practical expression. But when we have—as Dicey did not—lawfully organized and fair referendum procedures, it is implausible that only an Act of Parliament can ever speak for the people.

The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.

Today’s decision sidelines an important principle of political morality. It is not inexorably driven to do so by law or by logic. The judgment depends on two propositions that remain as debatable after the decision as they were before: (1) that the UK’s notification to withdraw from the EU cannot be made conditional on anything, and (2) that the European Communities Act 1972 not only gives EU law direct effect in UK courts, but also makes it part of UK law. Since the parties all accepted (1), the court did not test it. On (2), the court rejected the government’s argument that rights of British citizens under EU law result from an interaction of domestic and European law, and do not rest in domestic law alone.  Legal philosophers have struggled with the general issue at stake in (2).  Compare:  if conflict-of-laws rules sometimes require English courts to give effect to French law, does that make French law part of domestic English law?  It is a delicate question.  The Court makes short shrift of it.  Oddly, given its enthusiasm for Dicey’s doctrine that Parliament is omnicompetent, and its insistence that it only addresses ‘purely legal’ questions, the court  declares  (2) wrong because it is unrealistic: ‘In a highly formalistic sense this may be accurate. But in our view it is a submission which is divorced from reality.’

I wish the court’s desire to shape the law with an eye to reality had gripped it in some more helpful way. Since the UK is a union of peoples, not just one people, the declaration that any referendum, on any matter at all, can only ever be advisory will not go down well in Scotland, or in Northern Ireland. Nor will the conclusion, which follows inexorably, that Westminster can by explicit legislation repeal the Scotland Act 2016, notwithstanding what ‘a decision of the people of Scotland voting in a referendum’ (s 63 A) might have to say about the matter.  Does the Act itself give such a referendum legal force?  If so, it only takes a simple majority, which might consist only of English MPs, to amend or repeal it.

Contrast the more sensitive, and sensible, approach of the Supreme Court of Canada when addressing the constitutional significance of a possible referendum result in favour of Québec independence:

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec.’ (Reference re Secession of Quebec, [1998] 2 S.C.R. 217)

The formulation is inexact, but the idea is sound. The idea that ‘other constitutionally recognized principles’ necessarily trump any clear expression of popular sovereignty is a danger to the continued existence and operation of any constitutional order. The Canadian Court knew that to endorse that idea could risk national calamity. By their judgment they changed, if only marginally, the basic ground rules of the Canadian legal system. It was a wise move.  Perhaps our Supreme Court will follow it?

Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not.