On January 28, 2015, Justice Jamie Campbell exposed a blind spot of Canada's legal academics when he held that the Nova Scotia Barristers' Society (NSBS) had no authority to reject Trinity Western University's (TWU) law degree. Almost every common-law faculty had expressed reservations about TWU's admission to Canada's law school fraternity. They found it unfathomable that a religious university operating a law school could legitimately hold the traditional view of marriage as a part of its admission criteria.
The equality norm has become so comprehensive in legal analysis at Canada's law schools that it allows little room for religious practice. The professors of law (and the NSBS) mistook the advancement of equality rights under the Charter in recent years as positive proof that religious freedom must now take a back seat, despite the long-held constitutional doctrine that there is no hierarchy of rights. Religion is viewed by many in the legal profession as antiquated — or so it would seem. Religion has been described as the nemesis of equality by Queen's University law professor Beverley Baines, who is also head of its Women's Studies program.
The hierarchical view is expressed explicitly by former Supreme Court of Canada Justice Claire L'Heureux-Dubé, who stated: "I don't believe that a fundamental right can be reasonable if it's not compatible with the notion of equality." The trump of equality rights at the expense of religious freedom is thus the blind spot that was exposed, and soundly rejected, by Justice Campbell's ruling.
TWU is a private Christian university located in Langley, B.C., that applied to the Federation of Canadian Law Societies for recognition of its degree. The Federation gave approval in December 2013, but a controversy arose over TWU's admission requirement that students sign a Community Covenant stating, in part, "In keeping with Biblical and TWU ideals, community members voluntarily abstain from… sexual intimacy that violates the sacredness of marriage between a man and a woman."
So far, three law societies — in British Columbia, Ontario and Nova Scotia — have refused to accept the TWU law degree because of the Community Covenant. New Brunswick's law society was only one vote away from refusing recognition.
On April 25, 2014, the NSBS refused approval unless TWU either exempted law students from signing the Community Covenant or amended it for law students in a way that would cease to be discriminatory.
TWU applied to the Court for a judicial review, claiming NSBS did not have the authority to make such a decision and that it violated TWU's religious freedom, as guaranteed by the Charter. The hearing was held in December 2014 in Halifax.
TWU was described by the Law Society in the December hearing as a "rogue" law school. Justice Campbell objected to this characterization. The school could only be so considered "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." However, he noted, "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."
Justice Campbell recognized that Canadians "have the right to attend a religious university that imposes a religiously based code of conduct," even if that code excludes or offends "others who will not or cannot comply…. 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." To demand that right be sacrificed for State recognition of professional education is an infringement of religious freedom that cannot be justified.
Justice Campbell was also rigorous in his assessment of the NSBS's error in refusing to recognize TWU's law school and its degree. He rejected the position that the Community Covenant was unlawful discrimination. "It may be offensive to many," Justice Campbell stated, "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." He noted that TWU was not "in breach of any human rights legislation that applies to it."
What Justice Campbell's decision laid bare for all to see is the moral judgment against religion by the legal profession. It is a blind spot that sees religion and religious views as having absolutely no place outside of the churches, mosques and synagogues of the nation. There is a misapprehension to what religious belief and practice means to the believer. It attempts to bifurcate religious practice into a "public" and a "private" sphere. TWU's application for recognition of its law school has been characterized as moving into the public sphere. Jeremy Webber, dean of the University of Victoria Law School, argued in a Vancouver Sun article in April 2014 that a private institution cannot "escape scot-free, especially if they want to enjoy public recognition." However, that position fails to understand that religion permeates every aspect of a believer's life, with a long history of legal protection. TWU provides academic education in an institution that is Christian in character. That, as Justice Campbell noted, is not an insignificant part of who Evangelical Christians are. "Going to such an institution is an expression of their religious faith. That is a sincerely held believe [sic] and it is not for the court or for the NSBS to tell them that it just isn't that important."
Given the stark contrast between Justice Campbell's decision and the public pronouncements of the legal profession — particularly the legal academics — it makes one wonder whether the profession was taken aback by the decision. Perhaps this is the result of the academic assumption that religion will become less of a force as society becomes more secular. This secularization theory has permeated a number of fields of study, including law.
Sociologists such as Peter L. Berger now recognize that the theory does not stand up to current reality. Despite the secularization of society, there are many vibrant religious communities that have successfully resisted secular influence. However, this fact has not yet been picked up by certain segments of society. In The De-Secularization of the World, Berger writes:
"There exists an international subculture composed of people with Western-type higher education, especially in the humanities and social sciences, that is indeed secularized. This subculture is the principle 'carrier' of progressive, enlightened beliefs and values. While its members are relatively thin on the ground, they are very influential, as they control the institutions that provide the 'official' definitions of reality, notably the educational system, the media of mass communication and the higher reaches of the legal system."
In his paper "The Attack on Western Religions by Western Law," legal scholar Iain T. Benson suggests that "what this means is that when we are dealing with the law and the media, we must recognize that these sectors are heavily overrepresented by those, such as many Western journalists, judges and lawyers, who have little time for religion at best and actively wish to attack it at worst."
The Canadian Council of Christian Charities stated in its brief to the Nova Scotia Supreme Court that the decision of the NSBS "amounts to nothing less than a rejection of Canada's religious heritage. It strikes a devastating blow to the very heart of religious civil society and has the effect of reducing the rich tapestry of Canadian society. The long-term preservation of freedom, diversity, integrity and Canada's social capital requires the law to be willing to accept differences of belief and practice on such controversial issues as marriage."
Lawyers for the NSBS took umbrage at that characterization, stating at an oral hearing at the Nova Scotia Supreme Court:
"Needless to say all of those words are very strong words, all of those words are very negative words, and all of those words are about an institution that has regulated the legal profession in this province for more than two hundred years. So how did it come to be that the Nova Scotia Barristers' Society, a statutory entity charged with regulating the public interest and upholding the public interest in the practice of law — how did it come to be that the Society stands here today on the receiving end of a judicial review application where it is alleged that it has done nothing less than reduce the rich tapestry of Canadian society and rejected Canada's rich religious heritage?"
—Marjorie Hickey, QC
The answer, I propose, is as blunt as it is simple: professional arrogance. As legal professionals, we all suffer from this same occupational hazard from time to time. It would be arrogant, as Justice Campbell said, to suggest that British Columbia "has a less genuine respect for human rights values than Nova Scotia" when you consider the 50 years that TWU has been offering degrees and has never been found in violation of British Columbia's human rights legislation. He reiterated the fact that TWU is a private university to which the Charter does not apply. "TWU is not engaging in unlawful discrimination," he noted, and "the fact that the NSBS and the Nova Scotia Human Rights Commission do not like it does not make it unlawful."
Arrogance may also be seen in the manner in which the Nova Scotia Barristers' Society refused to be governed by the Supreme Court of Canada's 2001 decision involving the British Columbia College of Teachers' (BCCT) decision not to accredit TWU's education program because of its code of conduct. The Supreme Court ordered the BCCT to provide accreditation because there was no evidence that TWU students would discriminate against LGBT students in the public school system.
In Nova Scotia, the NSBS argued that the 2001 decision was no longer good law or at least not applicable to the facts before it. In one sense, we might not want to be too harsh on the NSBS for taking that position, for two reasons. First, they were buttressed by academic opinion that the 2001 decision did not apply; and second, since the Charter especially, there is the opinion that "a good lawyer needs to understand and assist the evolution of the law," according to Jeremy Webber in the Vancouver Sun. However, as Campbell rightly points out in his decision, the argument against the 2001 decision is simply an unacceptable reach.
"On its face, the TWU v. BCCT decision is very much on point," Campbell held. It was on point because, in both cases, the regulatory bodies were required to make a decision about accreditation acting in the public interest; the central concern was about requirements to abstain from behaviour that restricted LGBT students; and there was no evidence that a TWU graduate would act in an intolerant or discriminatory manner. However, Campbell recognized that the NSBS argument was "somewhat more subtle" than the arguments of the College of Teachers in the 2001 case. The NSBS was not saying that TWU graduates would be discriminatory. Rather, they were concerned that "accepting a law degree from the institution would amount to condoning discrimination." It was a matter of public perception.
In a robust manner, Campbell noted that although there has been widespread public acceptance of gay and lesbian rights over the last 14 years, that did not render the 2001 case out of step with current legal thought and social values. The case involved not only gay and lesbian rights but also freedom of religion and conscience. Therefore, he concluded:
"The conversation between equality and freedom of conscience has not become old fashioned or irrelevant over the last 14 years; and the Supreme Court's treatment of it can hardly now be seen as archaic or anachronistic. Equality rights have not jumped the queue to now trump religious freedom. That delineation of rights is still a relevant concept. Religious freedom has not been relegated to a judicial nod to the toleration of cultural eccentricities that don't offend the dominant social consensus."
In the review of the case law since 2001, Justice Campbell concluded "religious rights have not been marginalized or in any way required to give way to a presumption that equality rights will always prevail." There remains in the law significant room for religious freedom and religious expression that offends the secular concerns and equality rights.
Justice Campbell's view is either one of a lone wolf crying in the judicial wilderness or a correct and just interpretation of the law. It is the latter realization that is bound to be disconcerting to all those who have publicly declared that the law of equality has advanced to such a degree that it eclipses the right of a religious university to set an admission criteria in harmony with its creed.
His assessment is bound to raise questions about the settled opinion in the law faculties that are opposed to TWU's law school. Questions about one's position can be an unsettling experience. However, we are not immune from probing questions of our positions. That is what makes our society so great: We question, we critically analyze to determine what is right and what isn't, and we analyze what works and what doesn't. No doubt, there will be a significant amount of questioning of legal positions that have, until now, relegated religion to the back row of rights' talk. Forgotten is the powerful reminder of Chief Justice Brian Dickson in the Big M Drug Mart case: "Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously held beliefs and manifestations and are therefore protected by the Charter."
The Nova Scotia decision on TWU has painted a bright line between the current state of the law, which allows for religious belief and practice on marriage in religious institutions of higher learning, and emerging legal theories such as "deep equality," which suggests that accommodating such religious practices "is a framework that continues unfair and unjust power relations that impede rather than promote the equality of minority groups." Deep equality demands an "assumption of equality, rather than...the notion that one group is entitled to give and another to receive."
How is it that we have arrived at such a predicament? I suggest that legal faculties have been so enamoured by the promise of equality that they saw the law only through the "equality lens." We are witnessing a "group think" phenomena with only one preferred interpretation of the Charter — all other interpretations were deemed passé, save that which promoted equality, as they understood it. (What is left out in much of the analysis is the fact that religion is also an equality right under S. 15 of the Charter.) Surprisingly, even the rule-of-law safeguard was not enough to hold back the passionate opinion that equality trumps religion.
Returning to the closing submissions of the NSBS at the December hearing, the appropriate question is "how did it come to be that the Society stands here today on the receiving end of a judicial review application where it is alleged that it has done nothing less than reduced the rich tapestry of Canadian society and rejected Canada's rich religious heritage?" While appropriate for the NSBS, it is also appropriate for the law faculties and law deans across the land who opposed TWU.
Arrogance is a problem both for the religious as well as the non-religious. It is a fact of our existence. Justice Campbell eloquently described the blinding light of arrogance that flows from the moral judgments that favour religion and equality. One moral matrix makes it possible to say, "Homosexual acts are a sin. That is the word of God. There is nothing to debate here." The other moral matrix makes it possible to say, "A law school that discriminates is just wrong. There is nothing to debate here."
The legal blind spot failed to recognize that tolerance is a process that engages both moral views while accepting the discomfort of views that may be "incomprehensible…contemptible or detestable" to our own.
Ironically, the legal blind spot exposed by Justice Campbell's decision suggests that we need to make more room, not less, for academic inquiry that views the law from different lenses. Therefore, a law school such as that proposed by Trinity Western University would add a fresh counterweight of critical legal analysis than the present legal orthodoxy among Canada's current common-law schools. The overwhelming opinion of the law faculties, at the court of first instance, has been weighed and found wanting. What future appeals reveal is hard to say at this point. It might be that Justice Campbell's view is indeed all alone or it might not. What we can say is that we have at least one judge who disagrees with the opinion of the legal academy on the constitutional protection of religious freedom in a law school at a religious university. This is a significant development. The fact that it was made in such forceful language requires sober second thought.
Once the dust settles on the TWU debate, perhaps, just perhaps, this blind spot of the legal community will be removed and religion will no longer be so maligned and treated with indifference among the halls of our greatest legal philosophers of the land.