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Does Proposed TWU Canadian Law School Discriminate Against Gays?

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By William Peacock, Esq. on October 25, 2013 12:58 PM

Trinity Western University is a Christian university in Canada. If their accreditation process is successful, they'll soon have a law school as well. That may be a big "if" however, as lawyers and protestors are lining up to oppose the accreditation bid.

Why the fuss? TWU requires its students to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman," and many are arguing that this pledge closes the doors (and the sixty law school seats) to homosexual applicants.

Is it Really Discriminatory?

As I used to teach my LSAT students, the opposite of "A" is "not A."

The pledge requires students to abstain from sexual intimacy that might offend the "traditional" and heterosexual concept of marriage. What sort of sexual activity might be banned then?

  • Heterosexual premarital sex;
  • Heterosexual extra-marital affairs;
  • Homosexual sex, whether marital, premarital, or extramarital;

Of course, that's a pretty questionable argument, isn't it? By forcing gay students to sign a pledge that swears off sex while attending the school, even if that person is in a lawful marriage, it sends the message loud and clear: we don't like your kind around here. It's not exactly the polite behavior one would expect from Canadians, or from Christians for that matter.

Is it Legal?

That's the real question, isn't it? I don't profess to know the first thing about Canadian law, but as many editorials in support of the school have pointed out, this case seems to have already been decided.

Back in 2001, TWU faced a similar issue when it ran into the British Columbia College of Teachers accreditation process. It's accreditation was denied because of the school's policy, which required students to swear off a list of sins, which encompassed "sexual sins including ... homosexual behaviour."

That policy has since been replaced with the less explicitly-discriminatory covenant discussed above, but the Canadian Supreme Court precedent remains. In the 2001 case, the court noted that:

"Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute. The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them."

In short: the school, and the people at the school, have a right to believe as they will, and the right to believe trumps the right to act upon one's sexual urges. The court continued by noting that:

"Even though the requirement that students and faculty adopt the Community Standards creates differential treatment since it would probably prevent homosexual students and faculty from applying, one must consider the true nature of the undertaking and the context in which this occurs. Many Canadian universities have traditions of religious affiliations. Religious public education rights are enshrined in s. 93 of the Constitution Act, 1867. Moreover, a religious institution is not considered to breach B.C. human rights legislation where it prefers adherents of its religious constituency."

It's as clear as Canadian legalese can possibly be: despite the fact that these policies require gay students to (a) go elsewhere, (b) remain celibate, or (c) break the covenant, religious freedoms trump those concerns.

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