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 Page 6
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 Page 7
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 Page 8
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 Page 9
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. Page 10
[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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