Breaking News Supreme Court of Nova Scotia rules in favour of Trinity Western University …. more to come

I will write more on this as I read the decision and evaluate what has been said – Here is the summary of Justice Campbell’s decision:

[3] This decision isn’t about whether LGBT equality rights are more or less important that the religious freedoms of Evangelical Christians. It’s not a value judgment in that sense at all. It is first about whether the NSBS had the authority to do what it did. It is also about whether, even if it had that authority, the NSBS reasonably considered the implications of its actions on the religious freedoms of TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and the respect for the rule of law. In that sense, it is a value judgment. I have concluded that the NSBS did not have the authority to do what it did. I have also concluded that even if it did have that authority it did not exercise it in a way that reasonably considered the concerns for religious freedom and liberty of conscience.
[4] The NSBS can only legally do what it has been given the power to do by legislation. It acts under the authority of the Legal Profession Act 1 to regulate the practice of law in Nova Scotia. That act does not give the NSBS the power to require universities or law schools to change their policies. Its jurisdiction does not reach that far.
[5] The NSBS does have jurisdiction to deal with the educational and other qualifications of people who apply to practise law in Nova Scotia. If TWU graduates were not prepared by virtue of their education to practise law in Nova Scotia, or were inclined by virtue of their training at that institution to be intolerant, refusing them admission would not be regulating the law school. It would be regulating the competence of Nova Scotia lawyers.

[6] The Federation of Canadian Law Societies decided to recognize TWU law degrees as suitable to prepare graduates for legal practice. It was agreed here that graduates from TWU’s proposed law school would indeed be properly qualified. It was also agreed that they would be no more likely to discriminate than graduates of other law schools. So there is nothing wrong with TWU law degrees or TWU law graduates.
[7] There is, according to the NSBS, something wrong with TWU. That something is its mandatory Community Covenant which the NSBS says discriminates against LGBT students. Unless that Community Covenant is changed a TWU law degree is deemed not to be a law degree for purposes of the NSBS. An otherwise qualified person would be deemed not qualified. The reason would not
relate in any way to the law degree, to that person’s ability or to his or her suitability to practise law. It would not be because of anything other than the university policy to which the NSBS objects. That is no different than deeming a law degree not to be a law degree unless the university amended any number of other policies that are not reflected in the quality of the graduate. Those could include tuition policies, harassment policies, affirmative action admission quota policies or tenure policies.

[8] The legal authority of the NSBS cannot extended to a university because it is offended by those policies or considers those policies to contravene Nova Scotia law that in no way applies to it. The extent to which NSBS members or members of the community are outraged or suffer minority stress because of the law school’s policies does not amount to a grant of jurisdiction over the university.
[9] The second issue is considered only if it is assumed that the NSBS had the authority to regulate in the manner that it did. The issue involves whether the NSBS reasonably considered the constitutional freedoms of TWU and its graduates. The issue is not whether it is right or fair or morally justified or even theologically sound to deny the right of equality to same-sex spouses in the context of life at a private religious university. The issue is about the action taken by the NSBS. The NSBS as a state actor has to comply with the Charter. TWU and its students are protected by the Charter.

[10] The NSBS has characterized TWU’s Community Covenant as “unlawful discrimination”. It is not unlawful. It may be offensive to many but it is not unlawful. TWU is not the government. Like churches and other private institutions it does not have to comply with the equality provisions of the Charter. It has not been found to be in breach of any human rights legislation that applies to it. Counsel for the NSBS described TWU’s proposed law school as a “rogue” law school. It would be so only in the sense that its policies are not consistent with the preferred moral values of the NSBS Council and doubtless many if not a majority of Canadians. The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state.
[11] People have the right to attend a private religious university that imposes a religiously based code of conduct. That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious freedom. Private religious schools are not limited to training members of the clergy, theologians, missionaries or those who want professional degrees but do not want to practise. Those institutions already do produce nurses and teachers and grant any number of academic degrees that are widely accepted.
[12] Rights and freedoms are not absolute. Sometimes there has to be room for compromise. That involves deciding whether both the religious freedom and an important legislative goal can co-exist. The NSBS argued that its decision was an effort to uphold the equality rights of LGBT people. It was not an exercise of anyone’s equality rights. It was the decision of an entity acting on behalf of the state purporting to give force and voice to those rights. The NSBS is not the institutional embodiment of equality rights for LGBT people. To justify an infringement of religious liberty the NSBS action has to be directed at achieving something of significance. Refusing a TWU law degree will not address
discrimination against anyone in Nova Scotia.
[13] The NSBS through its counsel has said that it hoped that its decision, along with decisions of other law societies, would prompt TWU to change its policy on same sex marriage. It is hardly a pressing objective for a representative of the state to use the power of the state to compel a legally functioning private institution in another province to change a legal policy in effect there because it reflects a legally held moral stance that offends the NSBS, its members or the public.
[14] The NSBS has argued that it would be wrong for it to countenance or condone what counsel described as the “homophobic” policies of TWU. Many people in Nova Scotia are offended by the TWU policy. For some, particularly LGBT people, living in the knowledge that an institution with policies such as TWU’s would have its degree recognized in Nova Scotia, adds to the considerable stress they already experience in their lives. There is an element of stress that is inherent in living in a multicultural society where beliefs and practices that offend majority values are not only on display, but are actively tolerated. Society does not seek to eradicate the practices or re-educate the believers but recognizes their rites and their organizations for state purposes such a solemnization of marriage, tax exemptions and charitable status.
[15] There is a difference between recognizing the degree and expressing approval of the moral, religious, or other positions of the institution. The refusal to accept the legitimacy of institutions because of a concern about the perception of the state endorsing their religiously informed moral positions would have a chilling effect on the liberty of conscience and freedom of religion. Only those institutions whose practices were not offensive to the state-approved moral consensus would be entitled to those considerations.
[16] The NSBS regulation and policy are in effect a statement of principle to stand in solidarity with LGBT people. The force or value of that statement has to be considered against the infringement of religious liberty that was the means by which it was made. The statement would not prevent TWU graduates from practising in Nova Scotia. A TWU graduate could article somewhere else and then apply to be admitted to practise in Nova Scotia. Individual TWU graduates could make a special application to the Executive Director and perhaps be admitted, without knowing for sure what criteria would be applied. Those criteria could be academic, but there is no concern with academic qualifications. The criteria could be personal, but once again there is no concern that TWU would produce lawyers who discriminate. Yet it was argued that it should be assumed that the as yet undefined process would be reasonable. The statement is in the form of an obstacle, the special application, that is put before a TWU graduate that is not put before others. That statement has no connection to the equality rights of the LGBT community or the public interest in the practice of law in Nova Scotia. That’s less a statement about equality than a statement about the futility of just making
statements.
[17] The NSBS refuses a TWU law degree and puts that obstacle before the individual graduate even though he or she may not agree with the university’s policies and may even be member of the LGBT community. Yet, quite properly, it does not prevent lawyers from practising law who may agree with the religious tenets that underlie TWU’s policy or who belong to religions or private organizations that espouse those moral positions and impose similar restrictions on their members. Any rational distinction in principle between those lawyers and a TWU graduate would have to be very finely drawn.
[18] The value of the statement of principle made by refusing to recognize TWU law degrees is not proportional to the direct and substantial impact on freedom of religion. The NSBS acted unreasonably by failing to properly or adequately consider Charter rights in making the decision to refuse TWU law degrees and in passing the regulation that put that resolution into effect.

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Thoughts on Breaking News Supreme Court of Nova Scotia rules in favour of Trinity Western University …. more to come

  1. Trudy Beyak

    Considering all the good that Christians do to help others – as Christ taught to “Love one another” – this is indeed the only right and fair decision! Thanks Barry for keeping us in the loop and your insights are well-appreciated.

    Reply
  2. Tim Matsis

    I’m glad the judge was able to recognise that they had gone too far. The NSBS showed disregard for the rule of law and its approach would have institutionalised discrimination against Christian lawyers by making them subject to screening by the “thought police” before they could practise.

    This comment bothers me somewhat though as applying it could result in the same thing: “If TWU graduates … were inclined by virtue of their training at that institution to be intolerant, refusing them admission would not be regulating the law school. It would be regulating the competence of Nova Scotia lawyers.”

    Its too easy to accuse someone of being intolerant. In this case we saw the slur “homophobic” thrown around, mostly because some find it hard to accept that there are people who simply disagree with their worldview, even if that disagreement does not invole unlawful discrimination, hatred or violence towards a person.

    Will they set up a religious test disguised as a tollerance assessment for individual lawyers now to test their tolerance levels? e.g. “do you believe that homosexualality is morally wrong? yes/no” How would TWU graduates fare?

    Thanks for the report Barry.

    Reply

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