by Nicko wrote:Shrunk wrote:There is no question that TWU's policy is discriminatory.
Correct. The question is whether the discrimination is something that is relevant to this case. That is, whether it is illegal discrimination. And as long as it is legal to run a university with TWU's bizarre "Community Covenant", any disagreement with that Covenant is a private political opinion that should have no bearing on the decisions of a Law Society.Shrunk wrote:There is also no question that refusing to allow them to hold such a policy violates its freedom of religious practice.
Well I have a few problems.
If someone wants to promote a religion, they are free to start a church.
If someone wants to start a university, they should be prohibited from requiring their students to commit to an ideological statement. That is, the law should be changed to prevent TWU from doing what it is doing now to any of their students or staff.
I'm reminded of a comment by my alma mater's Vice Chancellor in a speech he gave to first year students. It was pretty much a stock speech that didn't change much in the decade and a half between the two times I attended. The comment was:
"You will not be the same person you are now by the time you leave here."
This sums up to me what tertiary education is supposed to be about. A time to expand your horizons. A time to question yourself and what you believe. To figure out what you stand for and what you won't stand for.
TWU effectively says to their students, "Your horizons are going nowhere. You will not question your beliefs. You will not change. You will be the same person you were when you walked in the door."
This is utterly antithetical to what I understand a university education to be about. The fact that an institution like TWU is allowed to style itself a university is a searing indictment on the failure of Canada to properly regulate tertiary education.
The "problem", such as it is, is in the constitutional guarantees to freedom of religion and of assembly. Every university has a code of conduct, and every code of conduct is the result of a particular philosophical and political viewpoint. If a university takes a firm stand against, say, sexual harassment on campus, that is a political position. One with which some strongly disagree. To single out religious philosophies as the one category not allowed to influence university policies is, to say the least, problematic.
Shrunk wrote:That is acknowledged in the Supreme Court decision in the BC College of Teachers case. So two fundamental rights and freedoms are in conflict here, and the way that has been resolved is to view TWU as a private religious institution analogous to a church.
So, the Supreme Court has ruled that, in cases like this, the religious freedom trumps the discrimination?
As I have hinted, I think this decision was silly, but it sounds like a decision that the Law Societies need to abide by. At least until well-meaning Canadians stop letting themselves get distracted by the sideshow an focus on the real issue.Shrunk wrote:The balancing of those two rights in that narrow situation does not necessarily lead to the conclusion that TWU's policy must also take precedence over the policies of professional regulatory bodies like the Law Societies.
I don't see why not. Particularly since the "narrow situation" described in the legal precedent is virtually identical to this case.
No, if is not identical on at least a couple fronts.
As I explained earlier, the TWU policy in the earlier case did not amount to defacto discrimination. No actual restrictions were placed on gay students that were not placed on straight students as well, except to the extent that Canadian law itself disadvantaged gays by not allowing them to marry. TWU cannot be held responsible for that.
There is also the fact that the BCCT had already approved TWU teacher training program. It was a five year course in which the final year only was spent at Simon Fraser University, a secular instituation. The Supreme Court case was triggered when TWU decided to take control of the whole program, and the BCCT then decided to withdraw accreditation. The Court rightly agreed that it was difficult to support the BCCT's effective position that the four years at TWU inculcated homophobia in all the students, but this was then driven out by that final year at Simon Fraser.
Finally, on a less purely legal perspective, the political and cultural climate in this country is now dramatically different a decade and a half after that decision. Although the court is supposed to be immune to such social changes, the fact remains that there has been a sea change in public attitude towards gay rights in the intervening years, to the point that what was once a contentious and divisive issue is now practically a truism. Try as it might, the Court cannot ignore such factors. It is far from a sure thing that the same case, if heard today, would result in the same decision.
Shrunk wrote:Nicko wrote:Shrunk wrote:Sure, that's "pushing an agenda". But it's an agenda that the law society is empowered to push.
I don't think so. The mandate of the Law Societies is to ensure that people practicing law are qualified to advocate in the interests of their clients. What the Law Societies who are rejecting TWU's accreditation by the national body are doing is just as unacceptable as if they decided to support a particular political party.
It's absolutely fine for a lawyer - or anyone else - to hold the opinion that some practice that is currently legal is discriminatory and to argue, organise and campaign for the law to be altered to reflect this assessment.
It is utterly unacceptable to use provincial Law Societies - the entire point of which is that they are politically neutral - as a tool to achieve this goal.
Except that the Law Societies are not taking a position on that political issue. As far as they are concerned, religious schools can continue to grant degrees. They just can't dictate the policies of the Law Societies.
When someone says that a practice not legally defined as unfairly discriminatory should be regarded as unfair discrimination, they are expressing a political opinion.
And, again, that is not how I see the statement. It is, rather, a position on how wide the religious exemption to antidiscrimination laws should extend. It is not saying that such exemptions should not exist at all.
Shrunk wrote:Let's suppose the Law Society of Upper Canada has a policy that all law schools must include 20 hours of instruction in constitutional law as part of its curriculum. However, TWU refuses to teach con law and cites religious reasons for this. There is no law that requires a law school to teach con law. Refusing to do so is entirely legal. So does it follow that the Law Society is now bound to disregard its rule regarding the curriculum? I don't see how that follows.
Actually, since ConLaw is a normal part of what someone with an Ll.B should be expected to have a grounding in, the Law Societies would be entirely justified in making rulings on this basis. In fact, during the original approval process by the national body, problems with the curriculum were identified and TWU corrected them.
Not a good hypothetical. There may be no law requiring that law schools teach ConLaw, but there is a law requiring Law Societies make sure that people practicing law know what the fuck they are doing.
The law, at least in Ontario (I have not looked at other provinces) does not say that. It is actually very vague on what criteria the Law Society should use in accrediting schools. That the educational program should be adequate would seem to be one obvious consideration. But that is not at all specified as the only one.
Shrunk wrote:Again, it comes down to the question of the extent to which a religious institution's freedom of practice must intrude on the policies of independent secular organizations. I don't think it is necessary to go as far as you suggest. You actually suggest balancing the two competing rights farther against religious rights than I do.
In a way. I just don't see how running a university can be defined as a "religious right".Shrunk wrote:I don't say any married homosexuals are studying there. They keep saying homosexual students are enrolled there, and these students have just signed the pledge agreeing not to have sex while they are students. With which, I'm sure, they comply to exactly the same degree as the heterosexual students.However, it remains unknown to me whether they would agree to admit a student married to a same-sex spouse. As I read the policy, I believe they would not.
Quite probably. Perhaps someone married to someone of the same sex should attempt to enroll, then sue the fuckers. I'd be all for that.
That would be interesting, I agree. A successful suit would mean going against legal precedent, but as I suggest the time may be ripe for that.
