Last year, the Nova Scotia Barrister’s Society said it would not allow graduates of a planned law school at Trinity Western University to practice law in the province unless TWU dropped its community covenant obliging students to refrain from sexual relations outside of a Scriptural understanding of marriage. The Barrister’s Society said the covenant was discriminatory of homosexual students at TWU.

On January 28, Justice Jamie S. Campbell of the Nova Scotia Supreme Court ruled the Barrister’s Society (NSBS) was acting outside its jurisdiction and violated religious freedom as set out in Canada’s Charter of Rights and Freedoms.

Below are some key citations from Justice Campbell’s ruling, with thanks to Cardus colleague Ray Sawatsky for compiling them.

What are the basic reasons Justice Campbell overturned the NSBS decision on Trinity Western University?

“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.” [P. 3]

“Requiring that TWU amend the Community Covenant in order to have its degrees accepted in Nova Scotia is an infringement of religious freedom and not a trivial matter.” [P. 237]

Don’t provincial law societies have the authority to regulate law degrees? Why couldn’t the NSBS decide that TWU was not offering a legitimate law degree until the school stopped discriminating?

“Deeming it to not be a law degree unless something unrelated to the law degree is changed is perhaps a clever way to extend the reach of the NSBS. But for the NSBS to say that it is just defining a law degree would mean that its definition of law degree would have to be an entirely arbitrary turning on and off of the definition based on considerations entirely unrelated to the definition. That’s not regulating a law degree. It’s using the law degree to get at something else.” [P. 170].

How did Justice Campbell see the NSBS action in light of previous Supreme Court Charter rulings, notably the case between TWU and the BC College of Teachers?

“In both cases a form of document, whether it be a covenant or community standard, required students to abstain from behaviour that amounted to imposing restrictions on LGBT students. In both cases, there was no specific evidence to allow the reasonable inference to be made that a graduate of TWU would act in a way that was intolerant or discriminatory.” [P. 193)

Did Justice Campbell consider it relevant that TWU is an Evangelical Christian institution?

“Religious faith governs every aspect of (Evangelical Christians’) lives. When they study law, whether at a Christian law school or elsewhere, they are studying law first as Christians. Being part of institutions that are defined as Christian in character is not an insignificant part of who they are. Going to such an institution is an expression of their religious faith. That is a sincerely held believe and it is not for the court or for the NSBS to tell them that it just isn’t that important.” [P. 229, 230]

Was Justice Campbell concerned that TWU’s community covenant was characterized as “unlawful” by the NSBS?

“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. 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.” [P. 10]

What did Justice Campbell say about the rights of faith-based educational institutions?

“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 practice. Those institutions already do produce nurses and teachers and grant any number of academic degrees that are widely accepted.” [P. 11]

But wasn’t Justice Campbell concerned about implied endorsement of TWU’s covenant by the State or other secular institutions?

“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.” [P. 15]

How broadly did Justice Campbell define concepts of secularity and pluralism in his decision?

“The State remains neutral on matters of religion. It does not favour one religion over another. And it does not favour either religion or the absence of it. While the society may be largely secular, in the sense that religion has lost its hold on social mores and individual conduct for many people, the State is not secular in the sense that it promotes the process of secularization. It remains neutral. It has not purged religiously informed moral consciences from the public sphere nor does it accord them more weight than others. The society is secular, but the State does not have a secularizing mission.” [P. 19]

For the full decision, click here.