By E. Munshya, LLB (Hons), M.Div.
Trinity Western University is a Christian evangelical school located in the province of British Columbia (Canada). Students at TWU are asked to sign a community covenant agreement that, among other things, asks students to refrain from “sexual immorality.” Sexual immorality is defined as “sex outside of marriage”. This includes “homosexual sex”. TWU defines marriage as between a man and a woman. TWU believes that it has the freedom of religion to teach its basic moral codes that define sexuality in this way. The lawyers in BC have voted to withhold recognition of a law degree obtained from TWU due to this community covenant. The vote took place on Tuesday, 10 June 2014. The main issue being argued by opponents of TWU law school is that the community covenant is non-constitutional as it discriminates against homosexual students. A detailed analysis of administrative and constitutional law arguments are beyond the purview of this article.
To date, the evangelical school has stated that it proscribes “homosexual conduct” without proscribing “homosexuals”. The principle being “loving the sinner”, but not the sin. Recently, though the Supreme Court of Canada in Whatcott did seem to discredit this view. While Whatcott was a human rights case, it remains to be seen how applicable it would be in the case of TWU. Judges in Whatcott stated that you cannot discriminate or hate people’s conduct if that conduct is one that could be done by a particular and identifiable group. According to Whatcott, you cannot hate the homosexual sin while claiming to love the homosexual because the so called homosexual sin can only be done by a particular identifiable group of people who are homosexuals. So can TWU discriminate in its covenant on the basis of “homosexual conduct”?
Before Whatcott, TWU in similar facts won a case in the Supreme Court of Canada when the teachers regulating agency in BC sought not to licence TWU teachers due to the community covenant. In that case the Supreme Court stated that in order for TWU graduates to be sanctioned, there has to be a clear discriminatory conduct from TWU graduates while they are in employment. You cannot say that a teacher from TWU will discriminate against homosexuals in a classroom simply because they signed a community covenant. Is the Supreme Court of Canada going to follow its own precedence? Or will it be controlled by the newer Whatcott ruling?
I am of the opinion that the Supreme Court is unlikely to rule against TWU law school. It will instead find a way to balance the TWU teachers’ case and Whatcott. In fact, they will have to narrow down the issue to the question of whether a lawyer who signs a community covenant at TWU becomes unsuitable to practice law.
Let me know what you think.