Recently, Trinity Western University was given the go ahead to establish a law school. There had been (and still is) considerable objection to this move, given that Trinity requires its students and faculty to commit to a code of conduct which includes a promise not to engage in "sexual intimacy that violates the sacredness of marriage between a man and a woman."
Most of the criticism of this decision has focused on the obviously homophobic character of the policy, saying that it goes against the fundamental principles of equality that the Canadian Charter of Rights and Freedoms is meant to protect. But to be fair to the arguments for Trinity Western, the policy does not exclude anyone for their status or identity; it only requires unmarried students and faculty to abstain from sex while enrolled or employed there. (It also, presumably, requires members of lawful same-sex unions to abstain, but I'll get to that in a moment.)
The problem with most of this criticism, though, is that the Charter applies to state actors, and not to private contracts. In a contract, the parties bind themselves, choosing to make promises in exchange for the promises offered by the other party. While s.2 of the Charter guarantees freedom of expression, I can enter into a contract that, in exchange for some benefit, obliges me to say or not to say something. This may seem like a limitation of my freedom of speech, but in fact the ability to enter into such a contract depends on my being able to exercise that freedom; if I weren't already free to choose what to say or what not to say, my contractual promise would mean nothing.
So, on a purely legal basis, there's nothing at all invalid about Trinity Western's code of conduct. Trinity promises to provide an education (or a salary), in exchange for the individual's promise to abide by some arbitrary code of conduct. Sure, the code of conduct appears to be somewhat more burdensome for certain sexual orientations than others, but that's not a fatal flaw for contracts, either; as long as the parties knowingly accept their contractual obligations, they're valid and binding.
If a private law school wishes to require, as part of its contracts, that the other party perform some silly or pointless ritual, or abstain from some otherwise permissible act, then that's something the other party can choose to accept or go elsewhere. So long as it's reasonably possible to go elsewhere, I don't have a problem with that. But there are a few things about Trinity Western's policy that give me pause.
First, while I defend their right to require silly and arbitrary promises of their students and staff, I also assert my right to point out just how silly those promises are. I don't want to get into a religious debate about this (though if past comments threads are any indication, I probably will), but it's just plain goofy to think that the transcribed prejudices of preliterate nomads are a reliable indication of what God wants from us, even if you accept the proposition that such a God even exists. While I see some merit in encouraging people to keep their sexual intimacies within the bonds of a stable matrimony, the fact is that people vary, and that solution is not necessarily best for everyone. Even if it is, it's the business of the couple in question and not the employer of one of them.
But the enforceability of a contractual promise has nothing to do with how silly or pointless the promise itself may be. You have perhaps heard the tales of Van Halen's performance contract, specifying that the dressing room had to have a bowl of M&Ms, with the brown ones removed. As silly a demand as that sounds, it served an important purpose in confirming whether or not the venue had actually read the contract. And so maybe, maybe I can see some sort of pedagogical benefit to an arbitrary requirement on the private behaviour of students. The practice of law does require sometimes (often) that we follow rules whether or not we understand the reasons behind them, so there's that.
More importantly, Trinity Western's choice to implement such a policy raises questions in my mind about the quality of the legal minds behind it, and hence their fitness to teach law. It isn't that I think their decision is illegal, or even that I think they don't understand constitutional or contract law. Rather, it's that I don't think they're using the law wisely to further the interests they purport to have. It's fine that they want to impose their shared vision of morality on members of their university community, but you can do that with a shared statement of values. Setting it up as a contractual obligation is just asking for trouble.
Why? Well, contracts are, ultimately, enforced by courts. Sooner or later, someone's going to get expelled from Trinity Western for homosexual (or heterosexual and extramarital) activity, and contest the expulsion in court. (This is a risk anyway, but especially so if the expelled someone happens to be a law student, who's after all there for the express purpose of learning how to fight legal battles.) And when that happens, the language of that contract is going to come crashing down.
Note that the promise is to abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman." This means that, to enforce the contract, Trinity Western is going to have to show, somehow, that the sexual intimacy in question "violates the sacredness of marriage between a man and a woman." And that is going to be a very difficult thing to show. How can the "sacredness of marriage between a man and a woman" be violated by anyone other than a married man and woman?
And seriously, we do not want to have that precedent set. If the sacredness of one sort of marriage can be violated by the mere existence of another sort of marriage, then can the sacredness of Christianity be violated by the existence of Islam? Can the sacredness of hockey be violated by the existence of basketball? Or, perhaps, can the sacredness of tolerance, liberty and the rule of law be violated by the existence of Trinity Western's code of conduct?
