SCC and Trinity Western University
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FJAG
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Chris Pook said:
One of the general principles of our courts is that they do not debate. When an issue goes to trial the court speaks only in it's judgement/opinion (and subsequently those judgements/opinions of the courts of appeal). Once the judgement is rendered, the judge. It is considered improper for a judge to speak about a case subsequently although there have been situations where judges may be invited to speak (such as a conference) but these are not debates as you see them
Remember that in an adversarial process both sides do present their arguments in court. Even in cases where there are only civilian parties present, if either party wishes to impugn a given law, they must give notice of the fact to the relevant government which then has the ability to attend court and speak on the issue. The sum of that is that if a given law is to be challenged, the judge hears arguments from a crown attorney who essentially is the representative of the crown. In essence that is the debate. Once the judgement comes down, however, the ball is entirely in the legislatures court as to what, if anything, they wish to do next including an appeal or amend the legislation.
One other thing. (and I hope I don't muddle things for you). Remember that under the common law, judges have been modifying or changing the common law for hundreds of years to cater to new situations (one of the most significant changes back in the 1930s was the creation of the tort of negligence in non contractual relationships). Even here though, the legislatures can overwrite those cases by creating legislation to deal with the matter (an example of this is the Negligence Act aka Contributory Negligence Act in some jurisdictions) which builds on the common law principles that judges had created.
The law itself is a very much a living thing where each of the legislature and the judges play their role. Remember that it isn't really parliament that drafts these laws. It's some sallow faced government lawyer/drafting team working in the bowels of a ministry somewhere using instructions coming from within the department with DOJ input. The legislature does have the opportunity to debate these before the final draft is approved but quite frankly, for the most part, the various members of parliament have only the vaguest of an understanding of the actual wording (they do get briefed on the intended effects). Often the wording is problematic or the reach of the law, as stated, goes beyond the intended consequences (and thus runs afoul of the Charter). That's often where the judge's play their role.
Remember that the debate here is different than it is in the US. Here all parties have a general understanding and acceptance of how our constitution and the laws should be interpreted. In the US there are two very opposing views on how the US Constitution should be interpreted. The more strict conservatives (like Scallia was and Thomas and Gorsuch are) are "originalists" who are of the view that the constitution should be interpreted the way it would have been by its framers at the time it was drafted. For more see here:
https://en.wikipedia.org/wiki/Originalism
Liberal judges have a more expansive view and use one of a number of principles to interpret the constitution within the context of a more modern society. For examples see here:
https://en.wikipedia.org/wiki/Judicial_interpretation
Wikipedia actually has a very good page respecting the ideological/"political" leanings of the various USSC justices that's worth reading.
https://en.wikipedia.org/wiki/Ideological_leanings_of_United_States_Supreme_Court_justices
It's this "political" division which creates so much of the friction in the US and which creates the "revisionist judge" backlash down there which really doesn't exist in Canada except in the most minor of ways.
:cheers:
Oldgateboatdriver
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There is one more small thing to keep in mind, Chris.
I'll quote one of my favourite show, Star Trek TNG: In the "Measure of a Man" episode, the JAG, acting as judge on the case of Data's status and finding that it's way over her pay grade to decide - really - says: "... But I've got to make ruling."
And that is one thing people who complain about "activist" courts don't seem to get. You see, courts don't want to get involved in complex political cases, but it's not their choice to do so or not.
If two litigants bring a case to a court that ought to be decided by the elected officials, but they haven't decided it yet or are unwilling to do so, and there is a triable issue - meaning there is an issue between the parties that pits them against one another and it is an issue that will have an effect on one of the parties depending on the decision, then the courts have no choice but to try it. They, unlike the (cowardly) elected official, cannot pass the puck or ignore it. It is brought before them and there is a triable issue: they MUST make a decision.
So before claiming that the courts are actually perverting democracy by their decisions in matters that would be better left to elected officials, always ask yourself: did the court actually want to delve into that matter or was it forced to make a decision because the legislator refused to deal with it.
Just saying.
I'll quote one of my favourite show, Star Trek TNG: In the "Measure of a Man" episode, the JAG, acting as judge on the case of Data's status and finding that it's way over her pay grade to decide - really - says: "... But I've got to make ruling."
And that is one thing people who complain about "activist" courts don't seem to get. You see, courts don't want to get involved in complex political cases, but it's not their choice to do so or not.
If two litigants bring a case to a court that ought to be decided by the elected officials, but they haven't decided it yet or are unwilling to do so, and there is a triable issue - meaning there is an issue between the parties that pits them against one another and it is an issue that will have an effect on one of the parties depending on the decision, then the courts have no choice but to try it. They, unlike the (cowardly) elected official, cannot pass the puck or ignore it. It is brought before them and there is a triable issue: they MUST make a decision.
So before claiming that the courts are actually perverting democracy by their decisions in matters that would be better left to elected officials, always ask yourself: did the court actually want to delve into that matter or was it forced to make a decision because the legislator refused to deal with it.
Just saying.
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So, I am assured that all the "t"s are crossed and the "i's are dotted, that every comma and apostrophe is in its appointed place.
I can stop worrying now.
The peculiar thing is that when I used to play rugby I knew the rules of the game. If necessary I could run touch judge and with a bit of effort stand in for the referee.
Why is it, that after continuing discussions with learned gentlemen like yourselves I can't shake the feeling that your caste may as well be speaking Latin and referencing not just the word but also interpreting it in light of received wisdom? That I, an average citizen, will never fully comprehend the rules of the game and am to leave my fate in the hands of those who are my betters - people who apparently share a language that divides us and leaves me wondering whether my values and theirs coincide?
My apologies, but I was not raised to hand my fate over to experts. No matter how much I can enjoy their company and respect their efforts.
Your health gents - but I fear I was right the first time. And this is a discussion that will continue with us talking past each other.
:cheers:
I can stop worrying now.
The peculiar thing is that when I used to play rugby I knew the rules of the game. If necessary I could run touch judge and with a bit of effort stand in for the referee.
Why is it, that after continuing discussions with learned gentlemen like yourselves I can't shake the feeling that your caste may as well be speaking Latin and referencing not just the word but also interpreting it in light of received wisdom? That I, an average citizen, will never fully comprehend the rules of the game and am to leave my fate in the hands of those who are my betters - people who apparently share a language that divides us and leaves me wondering whether my values and theirs coincide?
My apologies, but I was not raised to hand my fate over to experts. No matter how much I can enjoy their company and respect their efforts.
Your health gents - but I fear I was right the first time. And this is a discussion that will continue with us talking past each other.
:cheers:
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Since trying to silence Trinity Western and deprive graduates from employment is using political power to silence expression, this piece by Rex Murphy seems very appropriate. Two interesting asides: one of my soldiers is a Laurier alumni, and he was already pissed at how the University had handled the issue. I doubt he will be making many donations or gifts to Laurier from now on. The second aside is I looked at the academic biography of the maoist who led the struggle session against Ms Shepherd. Outside of the fact none of the people with me could understand what his actual research area was, I also noted that I was (at the time) better qualified to be in his position by virtue fo having more papers published in a professional journal...maybe I should apply for his job.
https://nationalpost.com/opinion/rex-murphy-now-laurier-wants-to-ditch-free-speech-for-better-speech-can-we-converse
https://nationalpost.com/opinion/rex-murphy-now-laurier-wants-to-ditch-free-speech-for-better-speech-can-we-converse
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I tend to phrase things in a manner which is difficult to understand for some people, but it boils down to holding the idea that the capacity for disagreement is something that must be held sacrosanct if we are to have a society which truly values the freedom and independence of speech. Suppose I agree with Trinity Western's behavioral contract out of religious affiliation - why on Earth would that necessarily mean that I expect people whom hold a different religious or political tradition to be equally bound by it? Or, for that matter, why should people presume a contract that I agreed to for the duration of my enrollment at TWU to influence my behavior after I have graduated, or for that matter, after my beliefs have grown and changed?
Anthropology research that was conducted nearly a century ago suggests that a society which holds sexual restraint as an important value in the wider public sphere may well actually be healthier in regards to economic and societal development than one which is far more hedonistic. After all, was it not generally the monasteries of the religious traditions which maintained literacy in the wake of the collapse of the Roman Empire?
I accept that provinces have the authority to deny graduates of TWU the right to practice law within them as a result of this dispute, but I reject the reasoning used in arguing the case, since it could potentially set a dangerous precedent. Suppose that it was a school from a different religious tradition which was at the center of the case. Would we not run into the same fundamental issues presented by the case if it was a Hindu university?
I hold a Bachelor of Religious Education, granted by a Bible College affiliated with the Mennonite tradition. As a condition of my enrollment at that college, I was required to sign a document very similar to the one TWU requires. Since I signed that contract, by the same logic laid out in the arguments against TWU, shouldn't I be prohibited from attempting to join the Canadian Forces?
The only thing that can really be done is what has been done - evaluating a person's belief structure and determining whether or not it introduces a bias into their practice. The thing is, I'd insist this be done universally, because the unfortunate reality is that humans are vengeful creatures, even if we may not consciously realize it. Looking at this whole matter from the lens of tribalism, I'm struck by something odd. Having reviewed the current iteration of TWU's community covenant agreement, I find nothing inherently objectionable as far as it relates to creating a recognizable "tribe" within TWU's community. Every society has its laws and customs as it relates to marriage, and we Canadians do tend to be respectful of differences provided that those differences are not inherently harmful. I'd go so far as to say that I don't doubt that there would be those who object to my own personal definition of marriage (which is very simple - it is the widespread social and political recognition of the biochemical reality of mate selection) due to the fact that it's easy to argue the definitions of the terms involved.
The simple reality is that a person's belief structure is so intrinsic to their identity and personal ethics and morality that it is impossible to fully separate belief and practice. As a person ruthlessly dedicated to empirical and logical evaluation of matters, devoid of any emotional entanglements (to a certain point), the simple reality is that while the interpretations of evidence vary tremendously as people interpret it through their own set of lenses, the evidence and facts themselves do not. Holding that the capacity to disagree must be held sacrosanct simply means that a set of definitions must be mutually accepted for any discussion to occur, and that if any person involved in a discussion has a dispute with the definitions involved, they ought to be able to fully explain why they dispute the definitions, and thus propose an alternate term of use. The person(s) they are speaking with would be thus free to reject any proposed redefinition of terms, offering their own replacement definition. The capacity to disagree ultimately results in something very critical - an escape hatch.
Without such an escape hatch enabling a person to leave a discussion, we have to introduce an entirely different aspect of the law into consideration - harassment.
Anthropology research that was conducted nearly a century ago suggests that a society which holds sexual restraint as an important value in the wider public sphere may well actually be healthier in regards to economic and societal development than one which is far more hedonistic. After all, was it not generally the monasteries of the religious traditions which maintained literacy in the wake of the collapse of the Roman Empire?
I accept that provinces have the authority to deny graduates of TWU the right to practice law within them as a result of this dispute, but I reject the reasoning used in arguing the case, since it could potentially set a dangerous precedent. Suppose that it was a school from a different religious tradition which was at the center of the case. Would we not run into the same fundamental issues presented by the case if it was a Hindu university?
I hold a Bachelor of Religious Education, granted by a Bible College affiliated with the Mennonite tradition. As a condition of my enrollment at that college, I was required to sign a document very similar to the one TWU requires. Since I signed that contract, by the same logic laid out in the arguments against TWU, shouldn't I be prohibited from attempting to join the Canadian Forces?
The only thing that can really be done is what has been done - evaluating a person's belief structure and determining whether or not it introduces a bias into their practice. The thing is, I'd insist this be done universally, because the unfortunate reality is that humans are vengeful creatures, even if we may not consciously realize it. Looking at this whole matter from the lens of tribalism, I'm struck by something odd. Having reviewed the current iteration of TWU's community covenant agreement, I find nothing inherently objectionable as far as it relates to creating a recognizable "tribe" within TWU's community. Every society has its laws and customs as it relates to marriage, and we Canadians do tend to be respectful of differences provided that those differences are not inherently harmful. I'd go so far as to say that I don't doubt that there would be those who object to my own personal definition of marriage (which is very simple - it is the widespread social and political recognition of the biochemical reality of mate selection) due to the fact that it's easy to argue the definitions of the terms involved.
The simple reality is that a person's belief structure is so intrinsic to their identity and personal ethics and morality that it is impossible to fully separate belief and practice. As a person ruthlessly dedicated to empirical and logical evaluation of matters, devoid of any emotional entanglements (to a certain point), the simple reality is that while the interpretations of evidence vary tremendously as people interpret it through their own set of lenses, the evidence and facts themselves do not. Holding that the capacity to disagree must be held sacrosanct simply means that a set of definitions must be mutually accepted for any discussion to occur, and that if any person involved in a discussion has a dispute with the definitions involved, they ought to be able to fully explain why they dispute the definitions, and thus propose an alternate term of use. The person(s) they are speaking with would be thus free to reject any proposed redefinition of terms, offering their own replacement definition. The capacity to disagree ultimately results in something very critical - an escape hatch.
Without such an escape hatch enabling a person to leave a discussion, we have to introduce an entirely different aspect of the law into consideration - harassment.
FJAG
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Xylric said:
I think the above highlited words are at the heart of this matter. It's not the later issue about discussion. No one has a problem with discussing issues.
Trinity's Community Covenant is the problem. The vast bulk of it is perfectly acceptable and even laudatory. This one element however is the one that critics point to.
This item is an overt rejection of homosexuality and directly prevents any member of a homosexual marriage from being a student (unless of course they are prepared to lie or become celibate like the unmarried students). It's not simply a restriction on premarital sex. They could have achieved that by simply leaving the last six words out.
The simple fact is that several law societies have decided that students who have been inculcated with this standard of ethics and morality would find it difficult, or as you say, impossible to separate belief and practice and thereby not be fully able to meet the required professional standards of lawyers.
:cheers:
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All a lawyer has to be able to do is stand before a judge and represent his client. Suppose the client preferred a representative that shared their beliefs?
The contract, the covenant if you will, is between the client and his advocate.
Edit: I would also offer, in support of the position, this brief from The Lawyer's Daily of May 8, 2017 -
https://www.thelawyersdaily.ca/articles/3113
The Guild is at risk if it insists on maintaining a monopoly on a service deemed essential while establishing fees that only 50% of the population feels they can afford.
If an individual remanded to appear before the courts is free to represent themself, without having the necessary inculcated beliefs, or can be assisted by a family member without the necessary beliefs, or by a friend, or by a paralegal then what grounds are appropriate to justify the exclusion of any lawyer on the grounds of their beliefs.
Historically belief was used to keep protestant advocates out of catholic courts, and catholics out of protestant courts. And no doubt would cause any honest atheist required to swear on a bible a degree of discomfort. Belief systems have nothing whatever to do with being able to research, read, apply the law and argue effectively in a coherent manner before respected representatives of the community - whether Judges, Justices of the Peace or Jurors.
On the other hand a catholic defendant going before a court in a predominantly protestant, or atheist, jurisdiction might find themselves more at ease with a catholic lawyer.
The contract, the covenant if you will, is between the client and his advocate.
Edit: I would also offer, in support of the position, this brief from The Lawyer's Daily of May 8, 2017 -
https://www.thelawyersdaily.ca/articles/3113
The Guild is at risk if it insists on maintaining a monopoly on a service deemed essential while establishing fees that only 50% of the population feels they can afford.
If an individual remanded to appear before the courts is free to represent themself, without having the necessary inculcated beliefs, or can be assisted by a family member without the necessary beliefs, or by a friend, or by a paralegal then what grounds are appropriate to justify the exclusion of any lawyer on the grounds of their beliefs.
Historically belief was used to keep protestant advocates out of catholic courts, and catholics out of protestant courts. And no doubt would cause any honest atheist required to swear on a bible a degree of discomfort. Belief systems have nothing whatever to do with being able to research, read, apply the law and argue effectively in a coherent manner before respected representatives of the community - whether Judges, Justices of the Peace or Jurors.
On the other hand a catholic defendant going before a court in a predominantly protestant, or atheist, jurisdiction might find themselves more at ease with a catholic lawyer.
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FJAG said:
If we're going to be addressing biblical text as evidence in this particular case, I'd point out that the Good Book also says that one is to live in peace with those around them, as far as it is possible to do so. Which does seem to mean that Christians are not required to expect their neighbors who do not believe to follow the same moral code. Except, even if it is impossible to fully separate belief and practice, one can still judge a matter fairly based on reason and evidence. One could thus argue that the convent in question is being used as an indication that a student of TWU's law school would be insufficiently trained in logical discourse and critical thinking, and as such would be forced to rely on antiquated religious ideology.
Here's a hypothetical question - should a student who obtains their law degree at TWU be able to join the law societies which reject the school's community covenant if they demonstrate that their beliefs have become such that they reject those established by TWU?
If the answer is no, there is a much bigger problem that needs to be addressed.
If the answer is yes, then there are a few other questions that need to be asked - many Christians do not have any problem with accepting same-sex marriage, just as many do not have an issue with abortion and other complicated social concerns. The key question which would then be asked would be if those who believe religion is inherently toxic to mental health ought to be allowed to join these same law societies - or those who believe that vaccines are dangerous, for that matter. It seems more important to measure a candidate's acceptability to be admitted to a law society based on observable practices and actions than any stated belief.
Suppose I associated with members of an anti-vaccination group, while studying for a medical degree. If I were incredibly vocal about advocating against vaccines, no governing body would likely be inclined to grant me the right to practice medicine. But suppose the only evidence I belonged to such a group was the fact that I associated with those who were already members, and there was nothing in my actions or the material that I was studying that indicated I accepted the premise which defines the group. Could not one make the case that I'd be a perfectly appropriate doctor despite my associations? Especially considering that one would have to know the reason behind why I associate with such a group to be able to make any fair judgement about their applicability as a concern - perhaps I merely associate with members of said group because one or more of them are the parents of children that I have volunteered with in the past?
People are not static beings, our beliefs grow and mature, and the stability of civilization is dependent on not interfering with that process. I believe that the decision of the law societies was one made out of an insufficiently detailed examination of all applicable factors. I do not know to say whether or not the decision is correct or incorrect, only that it is far from sufficiently rigorous.
I do, however, recognize that I should bow to the experience of those who know the workings of the law better than I, and as such appreciate your outlining of matters. I'm just somewhat ill-at-ease with what appeared to be carelessness on the part of those who rendered the decision which caused this discussion.
FJAG
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Xylric said:
I just want to clear up two points.
First, the biblical reference in my earlier post, isn't mine but are the references put in by Trinity Western as a footnote to their covenant as justification why marriage must be between a man and a woman.
https://www8.twu.ca/governance/presidents-office/twu-community-covenant-agreement.pdf
You may have been led astray by my (and other people's) mention of the possibility that graduates from Trinity Western would have beliefs which would make them unsuitable to practice law. That's not so much the case for the Law Societies involved and has nothing to do with the Supreme Court decision.
What the two Law Societies (BC and Ont) did was argue that they have no control over the law school with the exception of either accrediting it or not accrediting it. They argued further that by including the man/woman marriage provision in it's covenant, Trinity had restricted members of the LGBTQ community from attending Trinity Western's proposed law school and that this was against the public interest. Therefore they decided to deny accreditation.
The Supreme Court in the Law Society of Upper Canada case held:
So you see that the focus of both Law Societies' objections and the court's decision relate not to the proposed law school's output or quality of its graduates but the self imposed restriction that Trinity put on those who could attend its proposed law school through the use of their mandatory covenant. The Law Societies were not acting to restrict avowed Christians from practicing law but to deny accreditation to a law school that discriminated against admitting certain classes of individuals.
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17141/index.do
Hope that clears things up.
:cheers:
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It does, yes, thank you.
Though since I personally know a gay person attending TWU (because TWU was cheaper to attend due to both parents being alumni), I got a very interesting answer when I asked him about the matter. He didn't feel at all restricted by the covenant because being a rather sensible fellow, he has no interest in any sort of romantic relationship until he's finished his education and is free of debt. He plans on attending law school at UBC, and would still refrain from any sort of relationship until he finished.
Given that he's voluntarily accepted the covenant (because he agrees with everything else in in it, why wouldn't he if he can negate the relevance of the point in issue as far as it relates to him?), his position is very simple - what's going to stop people from attending other accredited law schools while retaining the beliefs that resulted in TWU being denied accreditation? Not that the position of one person directly impacted by a matter changes anything about the decision, it's just interesting to me that there's easily ways for TWU students to gain admission to law societies - they'd just have to attend another school.
I apologize for my confusion on the rest of the discussion. I'm sure you'd agree that barring someone as unsuitable to practice law in the absence of evidence that they'd be unsuitable is something which should be held as unacceptable. It is quite true that there are beliefs that, if held, ought to disqualify someone for a particular position - can you imagine hiring a geography or geology professor who believed the world was flat?
Now, of course, I imagine there would be an entirely different issue if a TWU student who later attended and graduated UBC's law school (for example) was rejected from these law societies....
Though since I personally know a gay person attending TWU (because TWU was cheaper to attend due to both parents being alumni), I got a very interesting answer when I asked him about the matter. He didn't feel at all restricted by the covenant because being a rather sensible fellow, he has no interest in any sort of romantic relationship until he's finished his education and is free of debt. He plans on attending law school at UBC, and would still refrain from any sort of relationship until he finished.
Given that he's voluntarily accepted the covenant (because he agrees with everything else in in it, why wouldn't he if he can negate the relevance of the point in issue as far as it relates to him?), his position is very simple - what's going to stop people from attending other accredited law schools while retaining the beliefs that resulted in TWU being denied accreditation? Not that the position of one person directly impacted by a matter changes anything about the decision, it's just interesting to me that there's easily ways for TWU students to gain admission to law societies - they'd just have to attend another school.
I apologize for my confusion on the rest of the discussion. I'm sure you'd agree that barring someone as unsuitable to practice law in the absence of evidence that they'd be unsuitable is something which should be held as unacceptable. It is quite true that there are beliefs that, if held, ought to disqualify someone for a particular position - can you imagine hiring a geography or geology professor who believed the world was flat?
Now, of course, I imagine there would be an entirely different issue if a TWU student who later attended and graduated UBC's law school (for example) was rejected from these law societies....
FJAG
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It doesn't matter if one person or more can either accept the covenant or work their way around it. Quite simply the covenant systemically discriminates against members of the LGBTQ community and that's the sole issue.
Law Societies do not discriminate against any graduate of an accredited law school who has graduated, meets the law society's bar admission requirements and is of good character within the meaning of the respective provincial law society (see here for Ontario's as an example: https://www.lsuc.on.ca/licensingprocess.aspx?id=2147502201. That relates to crimes and such and religious convictions and beliefs never enter into it.
Subsequent to being called to the bar, the lawyer must, however, meet the continuing requirements of the law society's Professional Code of Conduct (again see here for Ontario's: https://www.lsuc.on.ca/lawyer-conduct-rules/) which includes numerous provisions including those under section 6.3.1 Discrimination which requires respect of the human rights laws of the province and imposes a duty to not discriminate.
Don't let yourself be fooled by the rhetoric. It is usually religious groups who discriminate against certain individuals or groups as part of their dogma that then cry foul and consider themselves to be discriminated against on religious grounds when they are called out for their own intolerance. The problem here is Trinity, not the law societies who are fighting for equal rights for all candidates.
:cheers:
Law Societies do not discriminate against any graduate of an accredited law school who has graduated, meets the law society's bar admission requirements and is of good character within the meaning of the respective provincial law society (see here for Ontario's as an example: https://www.lsuc.on.ca/licensingprocess.aspx?id=2147502201. That relates to crimes and such and religious convictions and beliefs never enter into it.
Subsequent to being called to the bar, the lawyer must, however, meet the continuing requirements of the law society's Professional Code of Conduct (again see here for Ontario's: https://www.lsuc.on.ca/lawyer-conduct-rules/) which includes numerous provisions including those under section 6.3.1 Discrimination which requires respect of the human rights laws of the province and imposes a duty to not discriminate.
Don't let yourself be fooled by the rhetoric. It is usually religious groups who discriminate against certain individuals or groups as part of their dogma that then cry foul and consider themselves to be discriminated against on religious grounds when they are called out for their own intolerance. The problem here is Trinity, not the law societies who are fighting for equal rights for all candidates.
:cheers:
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FJAG said:
Indeed, it appears to be as you say.
I do wonder at how the accreditation process for a lawyer immigrating from a country in which homosexuality was a criminal offence would be managed.
Now, You stated earlier in the thread that you believe that human rights are layered. It strikes me that can potentially present a dangerous precedent when abused, though in principle the observation is accurate. The characteristics which are innate and thus largely immutable ought to take precedence over those which are largely selective. Could not one say that there is a problem which comes as a result of the fact that most characteristics to which this applies significantly overlap, and it could become difficult to discern the characteristic which is most at issue? Likewise, given the extreme variable of the degree to which a characteristic is selective, one might be able to argue that there are potential cases in which the selective ought to take precedence over the immutable.
I agree with the idea of rights being layered in principle, but it strikes me that it's rather simplistic to only give it two layers (innate vs. selective), due to the vast amount of overlap between the characteristics. After all, isn't it a general feature of our systems of laws that a greater understanding frequently results in a revision (and possibly rejection) of laws and decisions which are no longer applicable? I wouldn't be surprised if there are quite a few features of a person's being currently thought of as being selective are much more accurately viewed as intrinsic and immutable, and vice versa.
I think the better position would be to center the hierarchy of rights along a scale, measuring from the strictly internal (applying to one's self directly, such as sex, skin colour, etc) to those which are strictly external (as influencing one's interactions with others, which includes gender, religion, political ideology, and language, along with other considerations). Considering how closely linked sex and gender are for the majority of the population, I think this neatly illustrates the challenges created by attempting to define such a hierarchy of rights.
I refuse to play games when it comes to rights, because in truth it seems the only winning move is to ensure that the game continues. As soon as you make a decision about the sharp lines between various rights, someone is invariably going to be cut on them, and it strikes me that the core duty of the Canadian Charter of Rights and Freedoms is to minimize the potential for abuse and harm.
If I am asked to weigh the rights granted me around my own religious beliefs (such as they are) against someone's rights granted from physical characteristics (say, autism, for example), the reality is that my religious beliefs would actually require me to work to the benefit of the person whose physical characteristic is being set against my religious beliefs. There would be no conflict because I would remove the cause for one. However, the situation must be one in which the rights of both parties (myself and the autistic individual in question) are potentially violated. If only one party's rights were violated (or even merely threatened), there would be no question as to the appropriate solution.
We're still only in the early part of the third century of life for a society which personal liberty was truly valued as a concept, so clearly there are still many matters remaining to be settled, of which the issue of precedence in regards to the rights of individuals is likely paramount. My personal position is that so long as the goal of minimizing harm is maintained, conflicts between individuals whose rights are in opposition can be neatly settled by introducing other variables. As far as the conflicts between religious beliefs and the LGBTQ community is concerned, I'm afraid I don't understand the vehemence coming from both sides. As such the only thing I can safely say about it is that even if my religious tradition held certain homophobic beliefs, it would still ultimately be my personal choice to adopt them for myself. Since it's clear to me that doing so would likely cause harm and conflict, there's a higher religious principle which I need to follow - to do no unnecessary harm.
It isn't often that I find myself agreeing with anything that PET said but in this case I will make an exception:'The government has no business in the bedroom, or words to that affect. Neither does the Law Society have any right to decide whether a school's code of conduct is acceptable or not. By doing so they are being as discriminatory as the organisation that they are decrying. Provided that their academics are sound there should be no reason why a Christian based university can't teach law: there is nothing sacred about the law. By the way, even an atheist is religious. He just hasn't decided who his personal god is or won't admit it. I would far rather send my child to a school that has a clear-cut standard for its students to live up to; teaching moral conviction by example is always good. And yes the news is full of hypocritical preachers who have been caught with their pants down so to speak. But the point is that they (the school) is trying to maintain a standard. You don't have to agree with it but honour their right to set those limits. Having standards is why the catholic public schools are inundated with non-catholic applicants whilst public schools are being shuttered.
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Brad Sallows
Army.ca Legend
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>The simple fact is that several law societies have decided that students who have been inculcated with this standard of ethics and morality would find it difficult, or as you say, impossible to separate belief and practice and thereby not be fully able to meet the required professional standards of lawyers.
Ergo, students who have attended TWU and thus been "inculcated" are unfit to be lawyers and should not be admitted to any law school.
Ergo, students who have attended TWU and thus been "inculcated" are unfit to be lawyers and should not be admitted to any law school.
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Brad Sallows said:
So where is the argument to ban Islamic students from Law schools, since their religious upbringing should (by the arguments used against Christian students) make them unable to separate beliefs and practices? Indeed, anyone with a deeper understanding of Islam will recognize that for the truly religious, there is no separation of the secular from the sacred and they are less likely to separate belief from practice.
The argument fails because it isn't applied equally, and when looked at the narrow application it is more a means to target a group than a statement of principle or belief.
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So TWU can teach law but the graduates can not find placement at the bar because the law school is not recognized on the basis of its confessed beliefs.
The LSUC argument seems to be that they are not discriminating against TWU graduates on the grounds of their training and capabilities but on the grounds that they were trained by an institution whose beliefs were incompatible with the beliefs of the LSUC.
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Thucydides said:
Arguably, one way to diffuse the tensions between new Muslim Canadians and their new country would be to let their own lawyers argue their cases before Canadian judges and juries, some of whom will undoubtedly be Muslim, as well as Christian, Pagan, Naturalists, Sikhs and Hindus etc.
The point is to be willing to hear all ideologies and argue them in a setting that the interested parties deem "fair" - and part of that is letting any litigant be represented by an agent in whom that litigant has trust. Often that trust is first given to a member of one's own community. A stranger, speaking a foreign tongue is unlikely to be as well received - particularly when the bad news that the litigant has lost has to be delivered.
