Religious Freedom and Institutional Autonomy
When an individual believer claims exemption from the law for his or her religious practice, the key issue for the court is whether the exception — the accommodation — will negatively affect the public interest or the rights of others. According to the Canadian courts, s. 2(a) of the Charter is breached any time the state restricts a religious practice in a nontrivial way. Even when a law advances a legitimate public purpose, such as the prevention of drug use or cruelty to animals or violence in the schoolyard, the state must justify, under section 1 of the Charter, the law’s nontrivial interference with a religious practice. Yet, despite the Supreme Court of Canada’s formal declaration that the state must justify any nontrivial restriction of a religious practice (or reasonably accommodate the practice), the Court has given this requirement little substance. The Court appears willing to uphold a legal restriction if it has a legitimate objective (that is, an objective other than the suppression of an erroneous religious practice) that would be noticeably compromised if an exception was made.
In some cases, the accommodation claim is made not by an individual, who is seeking exemption for a specific practice, but by a religious organization or institution, which is seeking a degree of autonomy in the governance of its affairs — in the operation of its internal decision-making processes. In these institutional autonomy cases, the court must determine (1) whether the exemption from state law will impact the rights and interests of others (whether the group’s application of its norms will negatively affect outsiders to the group) but also (2) whether the members of the group should be protected by state law from internal rules that are unfair and contrary to public policy. The courts have generally treated religious organizations as voluntary associations (of individuals pursuing common ends) that should be free to operate as they choose. However, the state may sometimes decide to intervene in the affairs of a religious community characterized by hierarchy and insularity when the prevailing practices in that community are thought to be harmful to some of its members, even though the members have, in a least a formal sense, chosen to participate in those practices. The deep communal connections that are part of the value of religious life and commitment (a source of meaning and value for adherents) may also be the source of what the courts regard as harm – the lack of meaningful choice or opportunity open to the members of such communities or the oppression of vulnerable group members.
The Accreditation of a Law School at TWU
There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by TWU, a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside marriage.
The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules.
There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest. The first argument is that a school that teaches its students that homosexuality is wrongful or immoral will not properly prepare lawyers for practice in the general community. Lawyers have duties to their clients, to the law, and to the institutions of justice. An accredited school must be willing to affirm basic equality rights. Second, admission to Canadian law schools is competitive. If its program is accredited, TWU will select students from a large number of applicants. Following graduation (as well as articling, and bar exams), TWU students will be eligible to practice law in a particular province. The accredited law schools are a gateway to the legal profession. The concern then is that TWU’s admissions policy will have a discriminatory impact on gays and lesbians who wish to enter the legal profession.
The first claim -- that the TWU program will not adequately prepare students to work as lawyers in the general community – may be ruled out by the Supreme Court of Canada’s earlier judgment in Trinity Western University v British Columbia College of Teachers (2001) [TWU v. BCCT]. In that case the Court found no reason to deny accreditation to TWU’s teacher training program because there was no evidence that the program’s graduates (even if they believed that homosexuality is sinful) acted on that belief as teachers in the public schools, engaging in acts of discrimination.
While the law societies cannot simply ignore this judgment, I have the academic luxury of respectfully arguing that the Court was mistaken. The Court was mistaken first in thinking that the belief/conduct distinction (drawn from anti-discrimination law) could simply be applied to classroom teachers, and second in focussing on the actions of the program’s graduates rather than on the program itself – and whether it adequately prepared students to teach in the public school system.
In TWU v. BCCT, the issue was whether the British Columbia College of Teachers [BCCT] acted outside its powers when it refused to accredit the teacher-training program of a private evangelical Christian university because the program taught or affirmed the view that homosexuality was sinful. In deciding not to accredit the Trinity Western University [TWU] program, the BCCT referred specifically to the contract of “Responsibilities of Membership in the Community of Trinity Western University,” which teachers and students were expected to sign. Of particular concern to the BCCT was the obligation, assumed by teachers and students, to “refrain from practices that are biblically condemned” such as “homosexual behaviour” (TWU v. BCCT, para 4). According to the BCCT, an institution that wishes to train teachers for the public school system must “provide an institutional setting that appropriately prepares future teachers for the public school environment, and in particular for the diversity of public school students” (TWU v. BCCT, para 11).
The majority of the Supreme Court of Canada, in a judgment written by Iacobucci and Bastarache JJ, held that the decision of the BCCT to deny accreditation to TWU’s teaching program should be overturned. The majority found that while the BCCT acted properly in considering whether the TWU program might contribute to discrimination against gays and lesbians in the public schools, the college should also have taken account of the religious freedom rights of TWU faculty, students, and graduates. “The issue at the heart of this appeal,” said the majority, “is how to reconcile the religious freedoms of individuals wishing to attend TWU with the equality concerns of students in B.C.’s public school system . . .” (TWU v. BCCT, para 28). The majority observed that the denial of accreditation “places a burden on members of a particular religious group . . . preventing them from expressing freely their religious beliefs and associating to put them into practice” (TWU v. BCCT, para 32.) The BCCT decision means that TWU must abandon its religiously based “community standards” if it is to run a program that trains teachers for the public school system. Graduates of TWU “are likewise affected because the affirmation of their religious beliefs and attendance at TWU will not lead to certification as public school teachers . . .” (TWU v. BCCT, para 32).
If a teacher engages in discriminatory conduct, she “can be subject to disciplinary proceedings before the BCCT”; but, said the majority, the right of gays and lesbians to be free from discrimination is not violated simply because a teacher holds discriminatory views (TWU v. BCCT, para 37). According to the majority, “the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them” (TWU v. BCCT, para 36). A teacher may believe that homosexuality is sinful or wrongful, and even that gays and lesbians are less worthy or deserving than others, but as long as she does not act on those views, denying benefits to, or imposing burdens on, particular individuals because of their sexual orientation, she will not be found to have breached their right to equality. The majority found no evidence that any TWU graduate had acted in a discriminatory way in the classroom. And so the limitation on the religious freedom of the staff and graduates of TWU (the denial of accreditation) was imposed in the absence of any evidence that the program had a detrimental impact on the school system. The majority concluded that in the absence of any “concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C.,” the BCCT had no grounds to deny accreditation to TWU and interfere with the religious freedom of TWU instructors and students to hold certain beliefs (TWU v. BCCT, para 36).
The majority judgment seemed to say that had there been evidence of clear and direct acts of discrimination on the part of TWU graduates, the BCCT would have been justified in refusing to accredit the TWU teacher-training program. Yet, it is not clear why this should be so. Once the court distinguished between anti-gay/anti-lesbian belief and action, and accepted that a teacher may hold such beliefs, provided s/he does not act on them, why was it relevant whether any TWU graduates had engaged in acts of discrimination? If belief and action are separable in this way (public action as wrongful and personal belief as not), then TWU, even though it supported anti-gay and anti-lesbian views, should not be held responsible for any discriminatory actions taken by its graduates. Similarly, the improper actions of some graduates should not affect the accreditation of other graduates who may believe that homosexuality is immoral but refrain from engaging in acts of discrimination. The inconsistency in the majority’s reasoning, I suspect, reflects a deeper uncertainty about the distinction between belief and action in the school context.
While the distinction between belief and action is central in human rights codes (which prohibit acts of discrimination in the market but do not otherwise regulate an individual’s beliefs or the decisions she/he makes concerning “private” matters), it may not be applicable to the role of a teacher in a public school. An important part of a teacher’s role is to teach his or her students basic values, including tolerance for different religious belief systems and respect for the equal worth of all people. As the majority in TWU observed, “Schools are meant to develop civic virtue and responsible citizenship, to educate in an environment free of bias, prejudice and intolerance” (TWU v. BCCT, para 13). Teachers, though, do not simply instruct students in these values. They are role models and counsellors. If sexual-orientation equality is to be affirmed in the public schools, teachers must do more than simply refrain from direct acts of discrimination against gay and lesbian students. A teacher when confronted with bigoted words from students about gays and lesbians should contradict those words or when approached by a student who is struggling with his sexual identity should provide support and reassurance or direct him to an individual or group that can offer support. Because the public values of the school curriculum (broadly understood) are taught by example and because they must be affirmed in different ways, it may be that a teacher who is not personally committed to these values cannot perform her/his role effectively.
This is not to say that individual teachers should be closely examined on their views about sexual-orientation equality (or racial or gender equality). A serious probe into the individual’s thoughts or attitudes about sexual orientation might involve too great an invasion into his/her personal sphere. Nor should we preclude an individual from teaching in the public schools simply because we suspect she/he may be racist or homophobic — because, for example, she/he belongs to a particular church or attended a particular religious school. But this is not the same as saying that it is all right to employ an anti-gay or anti-lesbian teacher provided he/she refrains from explicit acts of discrimination in the classroom. A teacher should be excluded from the schools, if she/he has indicated in his/her public statements or actions that he/she regards homosexuality as sinful or objectionable, even though there is no evidence that he/she has directly discriminated against gays and lesbians in the classroom. She/He should be excluded because discrimination is sometimes subtle and difficult to prove but also because a teacher should do more than simply tolerate gays and lesbians.
In Ross v N. B. School District (1996), the Supreme Court of Canada held that an individual who holds racist views, as evidenced by her words or actions outside the classroom, may be disqualified from serving as a classroom teacher in the public schools. Justice La Forest, for the Court, upheld the decision of an adjudicator, appointed under the New Brunswick Human Rights Act, that ordered the school board to remove from the classroom a teacher who had expressed in a public setting racist views, which he claimed were religiously based. In Ross, there was no evidence that the teacher had treated any minority students in his class unfairly, or differently from other students, or had deviated from the curriculum and taught racist views. However, because Mr. Ross had expressed racist opinions at public meetings and in the local media, students in his school (and the general community) had come to know of his views. The Court found that Mr. Ross’s public racist statements had “poisoned” the learning environment in the school (Ross, para 40-1).
The Court in Ross recognized that a teacher is a role model, an authority figure, and a conduit for public values. Public knowledge of Mr. Ross’s racist views mattered because his support for such views might have legitimized them in the minds of some students and undermined the school’s affirmation of racial equality. If all that is expected of a teacher is that he/she refrain from teaching racist views, then it might be possible to separate what he/she says and does in the classroom from what he/she says and does outside, on his/her own time. There are very few jobs from which an individual would be dismissed because she/he (publicly) expressed racist views after work hours (unless contrary to the Criminal Code). Moreover, there are views that a teacher is not permitted to express inside the classroom but is free to express outside. For example, a teacher should not expressly support the Liberal Party, or the Communist Party, inside the classroom but is permitted to do so outside. We expect the teacher in the classroom to remain neutral on issues of partisan politics. But in the case of racial equality, we expect more than formal neutrality in the classroom. We expect the teacher to positively support the value of equality. A teacher who publicly affirms racist views cannot perform this role. It would seem even more obvious that a teacher-training program that affirms such views does not adequately prepare its graduates to teach in the public school system.
This takes me to the more fundamental error in the Court’s decision. The issue in the TWU case was not whether a particular graduate and prospective teacher might be anti-gay or anti-lesbian because he/she attended an educational institute that affirmed anti-gay or anti-lesbian views. It was, instead, whether a teacher-training program that affirmed values that are incompatible with those of the civic curriculum should be denied accreditation because it will not adequately prepare its students to teach in the public school system — a system in which gays and lesbians should be treated with equal respect and not simply tolerated. Had the BCCT denied accreditation to a teacher training program that had a racist element in its curriculum, it seems unlikely that the BCCT’s decision would have been overturned by the Court, even though not every graduate of the program would carry the lesson of racism with him. A program that taught or affirmed values so fundamentally at odds with the basic civic values of the public school system would not be accredited. Yet TWU sought accreditation for a program that supported values the BCCT thought were incompatible with the civic mission of the public schools — based on the public commitment to sexual-orientation equality expressed in both provincial and federal human rights codes. The existence of TWU, and more specifically its teacher-training program, rests on a belief that the values of those who teach are important in the education process. TWU recognizes that its students will become better Christians, or Christian school teachers, if they are taught in an environment that is fully Christian in its values and practices. This is why TWU requires that all instructors adhere to the code of conduct, which, among other things, forbids “homosexual behaviour.” Even if anti-gay views are not an explicit part of the teacher-training program, they form part of the ethos of TWU. Moreover, TWU has applied for accreditation so that it can train teachers who will support or model Evangelical Christian virtues in the public school system.
The law societies that have refused to accredit the TWU program have not relied on this argument, since it appears to be ruled out by the earlier Supreme Court of Canada judgment. There may, of course, be ways to distinguish lawyers from teachers, although I am inclined to think that we should be more worried about anti-gay public school teachers (and a program that reinforces such attitudes in prospective teachers).
Law School as Gateway to the Profession
In another important way, TWU’s discriminatory admission’s policy (the covenant) is not simply an “internal” matter that has no impact on the public interest. Admission to law school is an important gateway to the profession. Accredited law schools play a role in determining who enters the legal profession in Canada. TWU’s discriminatory admissions policy then may affect access to the profession for gay and lesbian students – and indeed for non-Christian students, who may feel unable to sign a covenant that affirms key elements of Evangelical Christian doctrine. The law societies that refused accreditation to the TWU program argue that they have a responsibility to ensure that there are no discriminatory barriers to access to the legal profession.
TWU is a “private” religious institution that wants to run a law program. The school can, of course, run a program without law society approval but its graduates will not be eligible to practice law (or they will only be eligible if they go through additional steps). TWU wants to train individuals to be lawyers who will serve the general community -- that is why it is seeking accreditation for its program. The three law societies that have refused to accredit the TWU program see the (accredited) law schools as part of the system for selecting and training lawyers. As long as law school admission remains a gateway to the profession then the admissions criteria of an accredited program will have an impact on individuals outside the religious community.
The law societies have not issued a general condemnation of TWU and its beliefs about homosexuality. They have not sought to interfere with the operations of TWU as a private Christian university. They have simply refused to accredit TWU’s law program – a program that in their judgment would have an exclusionary impact on gays and lesbians seeking entry into the legal profession. TWU is asking for the right or privilege to operate an accredited law program (and to play a role in choosing who will be trained in law and ultimately join the legal profession). Yet, at the same time, it is claiming that the law society’s refusal to accredit its law program amounts to an interference in its internal affairs. TWU’s assertion has resonance only if we are ambivalent in our commitment to sexual orientation equality. For it seems plain that a law program would not be accredited, if it had a religiously-based admission rule that excluded women (or married women, or women with children) because the institution believed that a woman’s role is to care for the children of her family and to provide support in the home for her husband.
There are several arguments that TWU might make in response to the claim that its admissions policy has an impact on the public interest. First the school might claim that any institution of higher education, either private or public, that wants to deliver a law program is free to apply to the various law societies for accreditation – and that lack of interest or initiative by these institutions is the only reason there are a limited number of law programs. TWU might argue that admission to law school is no longer a significant barrier to entry to the legal profession – because, on the one side, there are so many accredited law school places in Canada (and it is increasingly possible to study abroad and be admitted to practice in Canada), and on the other side, graduation from law school no longer ensures employment as a lawyer in Canada. (TWU might also note other barriers to law school, which receive far less attention from the law societies – most notably the very high cost of tuition at many accredited schools, which excludes some students on the basis of economic class.)
I am not sure that any of these arguments is credible in the current context of legal education in Canada. Nevertheless, they do highlight the difficulty in determining when the actions of a “private” religious institution impact the public interest or the interests of individuals outside the community to a degree that precludes or limits the institution’s claim to the protection of religious freedom. TWU has the legal authority to grant degrees – a public role of sorts. Few have claimed that this makes TWU into a “public” institution that is precluded by anti-discrimination law from enforcing its covenant. What is less certain, though, is whether TWU could claim a breach of s. 2(a) if the state were to refuse to give it degree-granting authority because of its covenant. These are different questions and it important not to confuse them. What if the Law Society of Upper Canada, for example, proposed to accredit only one law school? There would, I assume, be agreement that the LSUC should not, perhaps could not, accredit a program with a discriminatory admissions policy. Even if the LSUC is not precluded from accrediting the TWU program (because of its discriminatory admissions policy), it should not be required to accredit a program that discriminates on the grounds of sexual orientation and religion. Section 2(a) of the Charter may protect TWU, as a “private” religious institution, from some forms of state interference in its internal affairs. It does not give TWU the right to operate an accredited program; not as long as there are a limited number of such programs in the country.
TWU further argues that that the refusal to accredit its program will breach the religious freedom of the program’s graduates. It will deny its Evangelical Christian students the opportunity to practice law. There are many things could be said in response to this claim, but I will confine myself to the two most obvious.
First, TWU’s claim about the unfairness to its imagined (hypothetical) student body, composed of Evangelical Christian students, allows TWU to avoid answering important questions about admissions – about how the student body will be selected (who will apply and who will be accepted) – the very questions that concerned the law societies and led some of them not to accredit the program. It seems unlikely that the only students who might apply to the TWU program will be Evangelical Christians, given the large number of applicants for law school. TWU insists that the program will be open to non-Christians, as long as they are willing to sign and adhere to the covenant. If TWU intends to give preference to Evangelical Christian applicants then the argument against accreditation is strengthened.
Second, Evangelical Christian students are free to apply to, and attend, any law school in Canada. There are no religious barriers to admission. Nevertheless, the supporters of TWU have argued that if the TWU program is not accredited, Christian students will be forced to attend secular law schools (if they want a career in law) and this will interfere with their religious freedom. (Presumably then the law societies should accredit law schools operated by every religious group.) The argument rests on a claim that secular law schools are unwelcoming to religious students. In support of this claim, TWU offers an account by a recent University of Toronto student of her experience at law school. This is what the student said:
As a religious individual, I have felt that law school is generally a hostile environment for those who hold religious views. For example, professors were comfortable making disparaging remarks in class about religion; this includes invoking the name of Jesus Christ in hypotheticals. When discussing universal human rights, students and professors sought legitimacy by making clear they were Atheists. As a Christian, these remarks made me feel uncomfortable. Religion is not positively discussed in or outside of the classroom. In my law faculty, there is not a single professor who shares my evangelical Christian faith - at least not publicly. The law school ethos is generally socially progressive, with very few opportunities for socially conservative students to participate.
I was given advice by a Christian lawyer prior to entering law school to “keep your head down” and to not tell anyone that I am a Christian. I could not do that. People know I am a Christian, but it resulted in my becoming withdrawn in my law school community. Since starting law school, I have felt that I am not entirely free to discuss my beliefs and have become far more introverted. Since starting law school, I have felt that I am not entirely free to discuss my beliefs and have become far more introverted. During law school orientation, students underwent mandatory instruction where we were told it is our duty to stand up to bigoted remarks; a scenario used to exemplify unacceptable conduct and the duty to intervene was a student making comments labeled “homophobic” that reflected a belief in traditional marriage. This was a clear indication that only socially progressive views would be tolerated and of great concern to me. It made me feel nervous and isolated, unable to feel like my religious identity was welcomed within the law school community. (Applicants Factum TWU v. LSUC)
The obvious response is that this is anecdotal. The suggestion is that anti-religious views are routinely expressed by faculty in “secular” law schools; but there is no evidence of this other than the student’s description of her personal experience. Should this story carry more weight than the assertion of someone who has taught in a law school for 30 years (alongside several colleagues who are religious) that I have never witnessed or heard of any religious tradition being dismissed or mocked? It should be noted that while the student’s claim begins as a general assertion that religion is unwelcome at the U. of T. law school (or secular laws schools generally), it then shifts to the slightly-different claim that socially conservative views are unwelcome – and in particular that the school is unreceptive to the view that homosexuality is wrongful. The question then is whether a law school should refrain from affirming sexual orientation equality, because some of its students, on religious grounds, reject the equal worth of gays and lesbians or same-sex relationships. (The unintended claim is that TWU is a place where equality rights are not affirmed in this way.) A law school that affirms the equal value of its student members, regardless of their race, gender, sexual orientation, and religion, and that expects contributions to class discussion to respect equality values, is inclusive. The “exclusion” of intolerant acts and words – whether or not they rest on a religious outlook – does not amount to discrimination against, or the exclusion of, religious believers or a particular group of believers.