So then, brethren, stand firm and hold to the traditions which you were taught by us, either by word of mouth or by letter (2 Thess. 2:15). Guard what has been entrusted to you. Avoid the godless chatter and contradictions of what is falsely called knowledge, for by professing it some have missed the mark as regards faith (1 Tim. 6:21-22).

Friday, January 30, 2015

Supreme Court of Nova Scotia gets it right: TWU vs NSBS

Trinity Western University - 1; Nova Scotia Barrister's Society - 0.
H/T to FF for the link to the court's well reasoned decision!

Citation: Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25
Date: 20150128
Docket: Hfx. No. 427840
Registry: Halifax

Between: Trinity Western University and Brayden Volkenant [Applicants] 
v. Nova Scotia Barristers’ Society [Respondent]

Justice Centre for Constitutional Freedoms
The Association for Reformed Political Action
The Evangelical Fellowship of Canada and Christian Higher Education Canada
The Attorney General of Canada
The Catholic Civil Rights League and Faith and Freedom Alliance
The Christian Legal Fellowship
The Canadian Council of Christian Charities
The Nova Scotia Human Rights Commission
By the Court:

[1] What one person sees as having the strength of moral convictions is just sanctimonious intolerance to another. As with a lot of things, it depends on perspective (Perspectives can be informed or misinformed, conformed to reality or configured to an interpretation of reality that is highly conditioned by an irrational agenda.). Orthodoxies, secular or religious, can provide the comfort of certainty. (Afflict the comfortable and comfort the afflicted. The question is: Which people are the comfortable and which are the afflicted?)
[2] The Nova Scotia Barristers’ Society (the “NSBS”) has said that it will recognize law degrees to be granted by the proposed law school at Trinity Western University (“TWU”) only if the institution changes its policy on student conduct. That policy now prohibits sexual intimacy for students outside traditionally defined marriage. The NSBS sees it as a matter of equality. TWU sees it as a matter of religious freedom. 
1. Summary 
[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. (Pluralism and diversity includes people of faith.)
[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. (Excellent reasoning.)
[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.
- - - 
[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.
- - -
[271] For many people in a secular society religious freedom is worse than inconsequential. It actually gets in the way. It’s the dead hand of the superstitious past reaching out to restrain more important secular values like equality from becoming real equality. A more progressive society, on that view, would not permit any incursions by religion into public life or would at least limit those incursions to those by religions that have belief systems and practices that are more consonant with mainstream morality. The discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and multicultural society. The law protects them and must carve out a place not only where they can exist but flourish.
[272] The NSBS position speaks on one level about equality as a value. It is a reflection of a moral matrix that privileges that value. It speaks in the language of that value. And it makes it entirely possible to say, “A law school that discriminates is just wrong. There is nothing to debate here.”
[273] The other moral matrix speaks in the language of sanctity and privileges that value. It makes it entirely possible to say, “Homosexual acts are a sin. That is the word of God. There is nothing to debate here.”
[274] Both are moral judgments. It has been said that morality binds groups together. It also blinds. (Not exactly. Faulty application of a concept or the application of a distortion of morality blinds, not morality per se.) The values of the other are easily seen as merely prejudices.
[275] Tolerance, the ambiguous and paradoxical concept that it is, acts not so much as a boundary as the synthesis of the dialectic of competing values referenced by Chief Justice McLachlin. Unless tolerance engages the incomprehensible, the contemptible or the detestable, it is nothing much more than indifference. It isn’t a line. It’s a process. And it’s one that invites and almost requires a level of discomfort. (And,... tolerance of intolerance?)
[276] If the parties are unable to agree on costs I will hear them on that matter.
An interesting comment can be found regarding the action involving the BC College of Teachers and TWU.
[187] The Court said that the potential conflict should be resolved through the proper delineation of the rights and values involved. Neither freedom of religion nor the guarantee against discrimination is absolute. One right is not privileged at the expense of another. There is no hierarchy of rights.
With regards to the last statement concerning a hierarchy of rights in the moral order, one might do well to recall that rights such as freedom of speech are not protected and guaranteed if the first and fundamental right to life is not protected. In other words, all rights are contingent upon the first and foremost right, the right to life. It is not surprising that a court in our country, oriented as most are to relativistic thinking, would comment from that perspective. If the prevailing opinion corresponds to and correlates with the objective moral order which can be affirmed by means of reason illuminated by faith, then sound judgements will be made which flow out of and protect the fundamental right to life. The necessary nuance, though apparently not an obvious nuance, is often missed. Furthermore, that understanding, of course, puts Christians and all people of goodwill at odds with a society that contradicts itself by arbitrarily assigning rights on the basis of power that excludes (authentic diversity) versus the actual merit of an argument.

No comments:

Post a Comment

"A multitude of wise men is the salvation of the world(.)—Wisdom 6:24. Readers are welcome to make rational and responsible comments. Any comment that 1) offends human dignity and/or 2) which constitutes an irrational attack on the Catholic Faith will not go unchallenged. If deemed completely stupid, such a comment will most assuredly not see the light of day. Them's the rules. Don't like 'em? Move on.

Related Posts Plugin for WordPress, Blogger...