\n\tA law school seemed like the \u201cnatural next step\u201d1 in the evolution of programs offered at Trinity Western University (TWU), a private Christian university
\n\tin Langley, British Columbia, Canada aims to be a tolerant, multicultural society that celebrates diversity. A Christian law school could serve to broaden
\n\tand enrich Canada\u2019s diversity. However, this turned out not to be the case. Despite the fact that there are about 18 secular English common law schools in
\n\tCanada, with no faith-based alternative, the prospect of having one faith-based law school caused a level of opposition and rancor not seen before in
\n\tCanadian legal history—and it is not over yet, not by a long shot. This debate will, in all likelihood, make it to the Supreme Court of Canada.<\/p>\n
\n\tThe furor against TWU has arisen in response to its \u201cCommunity Covenant Agreement,\u201d 2 a code of conduct that, among other expectations, requires all
\n\tstudents to abstain from \u201csexual intimacy that violates the sacredness of marriage between a man and a woman.\u201d 3 TWU\u2019s definition of marriage stands in
\n\tcontrast to the \u201cany two persons\u201d definition of Canadian legislation.4 According to prominent lawyer Clayton Ruby, \u201cthis alone makes it [TWU] incompetent
\n\tto deliver legal education in the public interest.\u201d5<\/p>\n
\n\tTWU has maintained that it does not discriminate against anyone, including those in the LGBTQ community. In fact, TWU accepts LGBTQ students, as they do
\n\tall prospective students, on the basis of entrance requirements. However, TWU will expect all law students to abide by the \u201cCommunity Covenant Agreement\u201d
\n\tduring their course of study—it is required of the entire student body. This criterion, however, is not acceptable to the LGBTQ community, who demand
\n\tnothing less than TWU\u2019s complete capitulation on the matter.<\/p>\n
\n\tThe animosity toward TWU\u2019s law school proposal did not prevent the Federation of Law Societies of Canada (FLSC) giving its \u201cpreliminary approval\u201d for the
\n\tlaw school to go ahead.6 Only a few days later the British Columbia government also gave its approval.7 So too, did the Law Society of British Columbia.8
\n\tHowever, the opposition within the legal profession became so intense that both the Law Society of British Columbia and the British Columbia government
\n\twithdrew their approvals. Two other law societies refused to accept TWU law graduates: the Nova Scotia Barristers\u2019 Society9 (NSBS) and the Law Society of
\n\tUpper Canada (Ontario) (LSUC).10 TWU was left with no choice but to seek judicial review of these decisions and has commenced legal action against the
\n\tthree law societies.<\/p>\n
\n\tThe first jurisdiction to hold a hearing on TWU\u2019s argument was the Supreme Court of Nova Scotia in December 2014. In January 2015 Justice Jamie Campbell
\n\treleased his decision.11 His was a damning indictment against the Barristers\u2019 Society attempt to regulate TWU. He rejected the NSBS argument that the
\n\tCommunity Covenant was \u201cunlawful discrimination.\u201d \u201cIt is not unlawful,\u201d said Campbell. \u201cIt may be offensive to many, but it is not unlawful. TWU is not the
\n\tgovernment. Like churches and other private institutions, it does not have to comply with the equality provisions of the Charter [of Rights and Freedoms].\u201d
\n\tHe continued that TWU \u201cwas not in breach of any human rights legislation that applies to it.\u201d12<\/p>\n
\n\tJustice Campbell recognized that Canadians have the right to attend a religious university that imposes a religiously based code of conduct, even if that
\n\tcode excludes or offends others who will not or cannot comply. \u201cLearning in an environment with people who promise to comply with the code is a religious
\n\tpractice 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
\n\tpluralistic society.\u201d13 To demand that right to be sacrificed for state recognition of professional education was an infringement of religious freedom that
\n\tcould not be justified.<\/p>\n
\n\tThough Canada is a secular society and becoming more so, Justice Campbell made it clear that the state must remain neutral on matters of religion and not
\n\tfavor one religion or no religion. \u201c[The state] has not purged religiously informed moral consciences from the public sphere nor does it accord them more
\n\tweight than others,\u201d he noted. \u201cThe society is secular, but the state does not have a secularizing mission.\u201d14 \u201cThe Charter is not a blueprint for moral
\n\tconformity. 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
\n\tjudgments of the state.\u201d15 \u201cThe Charter does not apply to TWU. TWU is not engaging in unlawful discrimination. The fact that the NSBS and the Nova Scotia
\n\tHuman Rights Commission do not like it does not make it unlawful.\u201d16<\/p>\n
\n\tThe Court reviewed the role of marriage as being a central institution to the faith and practice of Evangelical Christians.17 The codes of conduct
\n\tincorporating such faith communicate the identity and ethos of the university. They \u201care seen as establishing a community \u2018conducive to spiritual growth in
\n\tthe context of Christian colleges and universities.\u2019 The environments are intended to be protected from influences that are detrimental to personal
\n\tspiritual growth.\u201d18<\/p>\n
\n\tHe noted that the NSBS\u2019s jurisdiction only begins once an application is made to practice law in Nova Scotia. At that stage the NSBS has the authority to
\n\tmake the determination whether the applicant is qualified. The Barristers\u2019 Society agreed that the TWU graduate would be no less willing to comply with the
\n\tethical standards regarding LGBT equality rights than anyone else. As to the law degree, the NSBS has no authority to define what is or is not a law
\n\tdegree,19 but it could prevent a person from practicing law if their degree did not properly train them for practice in Nova Scotia.20<\/p>\n
\n\tJustice Campbell ruled that the NSBS was not regulating the graduate or the law degree, but was attempting to regulate the law school itself. Its decision
\n\thad nothing to do with the qualifications of the students or the quality of the degree.21 It was clearly outside of its mandate. \u201cThe NSBS has no authority
\n\twhatsoever to dictate directly what a university does or does not do,\u201d said Campbell. Indeed, it could not require TWU to change its Community Covenant any
\n\tmore than it could regulate which professors should be granted tenure, what fees should be charged, or which admissions policies should be implemented.22<\/p>\n
\n\tIn short, the Barristers\u2019 Society \u201ccannot do indirectly what it has no authority to do directly.\u201d23 TWU, like any other law school, can do what it wants
\n\tand not worry about NSBS regulations. NSBS used its arbitrary definition of \u201claw degree\u201d to impose a penalty on the TWU graduate. The Community Covenant is
\n\ta nonacademic policy subject to the British Columbia regulatory regime and \u201cis unrelated to, irrelevant to and extraneous to the practice of law in Nova
\n\tScotia.\u201d24<\/p>\n
\n\tDespite the resounding loss, the Nova Scotia Barristers\u2019 Society has decided to appeal. In its announcement of the appeal the society gave as justification
\n\tfor its appeal the following rationale: \u201cIf left unchallenged, this ruling may significantly restrict the scope of the society\u2019s authority to uphold and
\n\tprotect the public interest in regulating the legal profession. It may also prohibit the society from continuing to take on a wider role in the promotion
\n\tof equality in all aspects of its work, including in the administration of justice.\u201d25<\/p>\n
\n\tThat statement speaks volumes of what is motivating the society.<\/p>\n
\n\tThey claim Campbell\u2019s ruling would restrict the scope of the society\u2019s authority. Justice Campbell made it very clear that the society has absolutely no
\n\tlegal authority to regulate law schools—especially those in another province. Even if it did, it was unreasonable in its lack of concern for the religious
\n\tfreedom issues. However, the society does not want to be limited by the current state of the law—it has much grander plans.<\/p>\n
\n\tNSBS is wanting \u201ca wider role in the promotion of equality in all aspects of its work, including in the administration of justice.\u201d That remarkable
\n\tstatement helps us to see more clearly what Canadian society—and the religious community in particular—is up against. The issue is no longer about the
\n\tlaw—it is well beyond that point. The NSBS has unapologetically proclaimed in its rationalization that it is an advocate for taking on \u201ca wider role in the
\n\tpromotion of equality in all aspects of its work.\u201d That is an incredible statement of admission. A law society has now deemed its public interest to be the
\n\t\u201cadvocate in chief\u201d (my words) in promoting equality (as it understands equality) at the expense of religious freedom. We are indeed entering a very scary
\n\ttime when, under the guise of a Charter \u201cfreedom,\u201d the Charter is now being used as \u201ca blueprint for moral conformity.\u201d<\/p>\n
\n\tThis statement of the NSBS not only reveals Justice Campbell\u2019s wisdom in upholding the rule of law and rejecting the NSBS\u2019s overreach, but also shows his
\n\tprescience about how far NSBS\u2019s radical ideas would go in trampling other Charter freedoms. The very radical nature of the NSBS agenda has been laid bare.
\n\tReligious freedom of a religious university is clearly in the crosshairs of the Nova Scotia Barrister\u2019s Society as it takes on \u201ca wider role\u201d to promote
\n\tequality.<\/p>\n
\n\tIn other words, \u201cStep aside! Mere religious freedom will not stop in our attempt to make Trinity Western University free!\u201d Have we arrived at the point
\n\twhere our law societies can flagrantly disregard the law to push their own agendas forward? This isn\u2019t as far-fetched as it seems. After all, a bencher of
\n\tthe Law Society of British Columbia was clear about his perspective on the law when he said, \u201cWe are the law!\u201d26 This is a no-holds-barred attempt at the
\n\tvery moral conformity Campbell warned against.<\/p>\n
\n\tJustice Campbell stated that the NSBS decision against TWU \u201camounts to a quota system by which TWU graduates who are more likely to be Evangelical
\n\tChristians are discouraged from applying so that the proportion of LGBT lawyers is raised. A more direct approach would be to directly limit the number of
\n\theterosexual articled clerks to reduce the disparity. That is every bit as strange as it sounds. That is not how social progress is achieved in a liberal
\n\tdemocracy.\u201d27<\/p>\n
\n\tIt is strange—more than strange—for a law society to be so willing to take on the role of promoting one right (equality) over another (freedom of
\n\treligion).<\/p>\n
\n\tThe rule of law is society\u2019s protection against exactly what NSBS is now doing. The rule of law carries within itself recognition that the law has its
\n\tlimits. The law was never meant to interfere with civil society and destroy the organizations and communities that make a liberal democracy a place where
\n\twe can mutually live lives in accordance with our deep moral and ethical commitments. Without the rule of law, those in power will inevitably use the
\n\trubric of \u201claw\u201d to do whatever they want—including the forceful interference in our religious and personal space.<\/p>\n
\n\tAt one point the secularists said, in effect, \u201cAs long as religionists stay to themselves we will leave them alone.\u201d28 The religious community that founded
\n\tTWU tried to do that—establish its own religious university as permitted by law and guaranteed by the Charter. Such universities are not new—they have been
\n\taround for about 1,500 years.29 Now, unfortunately, the tables have turned—the law is being disregarded by those who claim to operate in the \u201cpublic
\n\tinterest\u201d as they seek \u201ca wider role;\u201d ensuring those universities are not left alone despite the fact that they follow the law and want to be left alone.<\/p>\n","protected":false},"excerpt":{"rendered":"
A law school seemed like the \u201cnatural next step\u201d1 in the evolution of programs offered at Trinity Western University (TWU), a private Christian university in Langley, British Columbia, Canada aims to be a tolerant, multicultural society that celebrates diversity. A Christian law school could serve to broaden and enrich Canada\u2019s diversity. However, this turned out<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[308],"tags":[140],"class_list":["post-6320","post","type-post","status-publish","format-standard","hentry","category-september-october-2015","tag-september-october-2015"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6320","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6320"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6320\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6320"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6320"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6320"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}