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Trinity Western Loses 7-2

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13 minutes ago, providence said:

I don't think the LSBC or LSO would want to say no if they don't have the covenant. They would have won at that point. This has always been about the covenant, not the fact they're "Christian" as TWU tried to say, because the covenant is indefensible. If the result of the decision is to water down the covenant, great! Not sure about giving preference to their undergrads - if they want to be taken seriously as a law school won't they need to consider LSAT and GPA first like all the other law schools? If it's just a back door way to get their undergrads into law school, I'm not sure that works. 

Of course they'd want to say no, the covenant was always a smoke screen. No one who would actually want to go to TWU and get a "Christian' legal education would object to the covenant.  

13 minutes ago, providence said:

Zealots don't think tactically.... :)

There is a lot TWU could have done better, in my humble opinion. Remember when we read the submissions and some of the pro-TWU ones were surprisingly weak? 

They had competent counsel, but I agree, they could have handled it better.  Should have hired me! :)

 

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On 2018-06-16 at 11:46 AM, Coolname said:

I find it humorous that in a sense twu was trying to make one big "safe space" for their students. To ensure there students were not exposed to sinful activity. But we have liberals arguing against the concept of a safe space on a university and against a university being able to choose what views there students may be exposed to, and conservatives arguing for the university being allowed to be one big safe space. 

I'm very liberal in my views. I am opposed to Trinity Western University having a law school, a teacher's college, and probably, a University (if I thought about it long enough). I'm definitely the opposition you're imagining with your statement.

That said, I'm also against safe spaces, particularly in the University setting, but probably in general too. While I certainly believe people should be free from discrimination or harassment, I believe that the free exchange of ideas, information, and debate, is essential to the education and enlightenment of our youth (and arguably, society at large). There is no right to be free from exposure to ideas that differ from yours; the freedom of conscience cannot be extended that far.

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7 minutes ago, Pyke said:

I'm very liberal in my views. I am opposed to Trinity Western University having a law school, a teacher's college, and probably, a University (if I thought about it long enough). I'm definitely the opposition you're imagining with your statement.

That said, I'm also against safe spaces, particularly in the University setting, but probably in general too. While I certainly believe people should be free from discrimination or harassment, I believe that the free exchange of ideas, information, and debate, is essential to the education and enlightenment of our youth (and arguably, society at large). There is no right to be free from exposure to ideas that differ from yours; the freedom of conscience cannot be extended that far.

Strictly speaking, there is a right to be free from exposure to ideas that differ from yours - you, after all, have a right to live as a hermit, or to only live with people exactly like you (a common enough experience, for example, for some religious communities - think Mennonites or certain sects of ultra-conservative Jews).   That's an intrinsic part of freedom of association. 

So, insofar as "safe space" simply means allowing people to congregate in private associations of persons with common identities, experiences, ideas, whatever, it's not really all that offensive - it's an intrinsic part of freedom of association and goes to the core of the liberal (small "L") concept of freedom.  That is one meaning of "safe space" that you see encapsulated in say, a woman's center, or a "rainbow room" or, perhaps, an Afrocentric dorm (common enough in the US).  The ACLU had a very good discussion of this conception of "space space" in a research paper on free speech at universities last year (or the year before) which, I have to say, won me over to that concept of "safe space".  

What one doesn't have a right to is to be free from exposure to ideas that differ from yours in the public sphere.  So when the claim to "safe space" is expanded to shutting down (often shouting down) speakers in the public sphere, it's a profoundly illiberal and antithetical to a free society.   I think the problem is that many proponents of "safe space" start with the first concept, which is inoffensive, and try to extent it to the second concept while hoping that no one will notice that the rationale and basis is completely different, and less supportable.  

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1 hour ago, maximumbob said:

[...] Your commentary would likely be more compelling if you were familiar with the issues - notably that TWU's covenant does not run afoul of provincial human rights legislation in BC (or, if it applied, Ontario) both of which expressly exclude from the application of human rights law various organizations that serve particular religious or community groups. [...[

And yours if you were familiar with the law on reasonableness.

The human rights legislation does not exclude religious organizations period. That exception has qualifications. I would argue that the exclusion shouldn't apply because there isn't a rational connection between the preference and TWU's purpose.

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14 minutes ago, PredictablyDarwin said:

And yours if you were familiar with the law on reasonableness.

The human rights legislation does not exclude religious organizations period. That exception has qualifications. I would argue that the exclusion shouldn't apply because there isn't a rational connection between the preference and TWU's purpose.

I think we're on the same "side" insofar as there are "sides" in this discussion. However, I'm pretty sure that Trinity Western University is excluded in respect of the British Columbia Human Rights Code with respect to religious practices such as the Community Covenant. I recall looking this up (even though I don't practice law in British Columbia) when this matter was before the British Columbia Court of Appeal. Whether Trinity Western University is or isn't excluded from the application of the British Columbia Human Rights Code had no relevance in the decision, since it's clear that the Law Society of British Columbia and the Law Society of Ontario are not excluded from their respective provincial human rights codes in the administration of their statutory powers.

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9 minutes ago, PredictablyDarwin said:

And yours if you were familiar with the law on reasonableness.

The human rights legislation does not exclude religious organizations period. That exception has qualifications. I would argue that the exclusion shouldn't apply because there isn't a rational connection between the preference and TWU's purpose.

In the dissent paragraph 324:

"...Indeed, the TWU Covenant is protected by British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210, s. 41(1)....".

Granted, it's the dissent. But if the covenant wasn't protected by the BC HRC, wouldn't the majority have said so? Or shouldn't they have? Which, given the lack of coherence of their reasons is maybe too much to expect (again, I'm criticizing the clarity and guidance given by the reasons, not the result per se; McLachlin was far more compelling).

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6 minutes ago, epeeist said:

In the dissent paragraph 324:

"...Indeed, the TWU Covenant is protected by British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210, s. 41(1)....".

Granted, it's the dissent. But if the covenant wasn't protected by the BC HRC, wouldn't the majority have said so? Or shouldn't they have? Which, given the lack of coherence of their reasons is maybe too much to expect (again, I'm criticizing the clarity and guidance given by the reasons, not the result per se; McLachlin was far more compelling).

It wouldn't surprise me if all justices thought the covenant was exempt from the HRC, but then they all -- even the majority, imo -- gave far too much to the argument that the covenant is intrinsically linked with the evangelical Christian religious principles espoused by TWU and its members. 

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33 minutes ago, PredictablyDarwin said:

And yours if you were familiar with the law on reasonableness.

The human rights legislation does not exclude religious organizations period. That exception has qualifications. I would argue that the exclusion shouldn't apply because there isn't a rational connection between the preference and TWU's purpose.

Have you read the legislation?  There's no doubt that it covers TWU, which is why TWU has been able to operate with the same (or similar) community covenant for decades, despite the existence of the human rights legislation.  The majority in TWU 2001 expressly recognized that TWU was exempt under the BC Human Rights Code, and expressly considered that in ruling in favour of TWU.  

 

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3 minutes ago, PredictablyDarwin said:

It wouldn't surprise me if all justices thought the covenant was exempt from the HRC, but then they all -- even the majority, imo -- gave far too much to the argument that the covenant is intrinsically linked with the evangelical Christian religious principles espoused by TWU and its members. 

Para 32 of TWU v BCCT pretty explicitly acknowledges that TWU is exempt:

”Therefore, although the BCCT was right to evaluate the impact of TWU’s admission policy on the public school environment, it should have considered more. The Human Rights Code [] specifically provides for exceptions in the case of religious institutions, and the legislature gave recognition to TWU as an institution affiliated to a particular Church...”

So yeah, I have no idea on what basis you’re arguing they run afoul of the law, but two successive SCC cases have suggested that they do not. 

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22 minutes ago, Pyke said:

Whether Trinity Western University is or isn't excluded from the application of the British Columbia Human Rights Code had no relevance in the decision, since it's clear that the Law Society of British Columbia and the Law Society of Ontario are not excluded from their respective provincial human rights codes in the administration of their statutory powers.

Surely it's of some relevance, if the Law Societies are required to regulate in favour of the public interest, no?  That legislatures have expressly provided that the activities of the sort engaged in by TWU are worthy of protection, suggests that creatures of those legislatures (e.g., the law societies) shouldn't be able to assert that those activities are contrary to the public interest. Isn't unreasonable to interpret the law societies statutory powers as enabling them to sanction conduct that that the legislature expressly protected?   That's not determnitative, sure, but surely should be given some weight (as it was by the SCC in TWU 2001).   

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11 minutes ago, BlockedQuebecois said:

Para 32 of TWU v BCCT pretty explicitly acknowledges that TWU is exempt:

”Therefore, although the BCCT was right to evaluate the impact of TWU’s admission policy on the public school environment, it should have considered more. The Human Rights Code [] specifically provides for exceptions in the case of religious institutions, and the legislature gave recognition to TWU as an institution affiliated to a particular Church...”

So yeah, I have no idea on what basis you’re arguing they run afoul of the law, but two successive SCC cases have suggested that they do not. 

I don't disagree with the fact that the SCC has ruled in a particular way on the exemption provision. My point is that its analyses (see Brossard re analysis to undertake when dealing with group rights provisions) give far too much credit to absurd ideas that aren't even that consistent with or necessary for the religious organization to run effectively for its purpose. La Forest hit the nail in Gould, dealing with a similar exemption, when he said that the discrimination must be of a kind necessary to the furtherance of the fundamental objects of the organization. If the exemption in this case does pass that part of the test for the SCC, then I think they give far too much leeway to this backwards religious institutions...

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17 minutes ago, maximumbob said:

Surely it's of some relevance, if the Law Societies are required to regulate in favour of the public interest, no?  That legislatures have expressly provided that the activities of the sort engaged in by TWU are worthy of protection, suggests that creatures of those legislatures (e.g., the law societies) shouldn't be able to assert that those activities are contrary to the public interest. Isn't unreasonable to interpret the law societies statutory powers as enabling them to sanction conduct that that the legislature expressly protected?   That's not determnitative, sure, but surely should be given some weight (as it was by the SCC in TWU 2001).   

I don't agree. If that was the intended application, the legislature surely would have also included the law societies from the human rights codes. Moreover, as a practical matter, relief for one set of purposes should not (and cannot) be read as the intent to grant to religious universities absolute rights to discriminate and be entitled to all public benefits in all capacities.

Also, TWU 2001 was arguably wrongly decided.

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1 minute ago, Pyke said:

I don't agree. If that was the intended application, the legislature surely would have also included the law societies from the human rights codes. Moreover, as a practical matter, relief for one set of purposes should not (and cannot) be read as the intent to grant to religious universities absolute rights to discriminate and be entitled to all public benefits in all capacities.

Also, TWU 2001 was arguably wrongly decided.

I grant you, we agree that the SCC has made some terrible decisions and badly misapplied the law vis-a-vis TWU. Though I think we disagree which decision does that.  

No one argues - or ever argued -that exception from human rights law grants religious universities an absolute right to discriminate AND be entitled to all public benefits. It does, however, create a strong presumption that the mere fact of its discrimination is not contrary to the public interest. In any event, I'm not even making that argument, I'm simply saying that it's of SOME relevance to the decision, even if it isn't determinative.  

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On 6/16/2018 at 8:50 PM, bamalam said:

I guess the benchers debated privately between the referendum results coming in on October 30 and their meeting October 31? Because it doesn't appear that they debated at all during their meeting.

(I seem to recall reading the meeting transcripts years ago, but I can't seem to find them now...)

Actually, this appears to be the minutes.  What was missed in the minutes is hours of debate- completed prior to this.  Every single Bencher had their say.  It was live streamed.  The supporting documentation including legal briefs from different sides where around 650 pages plus thousands of supporting documents ( I admit to only having read the 650).  I watched all of the debates.  I then voted in the referendum having done my best to come up with the proper balance.  - Turns out I was right- did I mention that earlier?  If I didn't I was.

The vast majority of the lawyers I know, took this referendum very seriously, did much as I did - although there were some who may not have read all 650 pages.  I know a lot that just read the two main competing briefs (TWU's was very persuasive I might add).  Ultimately, the benchers could have ignored the referendum and voted as they wished if they so choose (as one or more did).  

 

Edited by Rumpy
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17 minutes ago, PredictablyDarwin said:

I don't disagree with the fact that the SCC has ruled in a particular way on the exemption provision. My point is that its analyses (see Brossard re analysis to undertake when dealing with group rights provisions) give far too much credit to absurd ideas that aren't even that consistent with or necessary for the religious organization to run effectively for its purpose. La Forest hit the nail in Gould, dealing with a similar exemption, when he said that the discrimination must be of a kind necessary to the furtherance of the fundamental objects of the organization. If the exemption in this case does pass that part of the test for the SCC, then I think they give far too much leeway to this backwards religious institutions...

There's a US ecclesiastical abstention doctrine, which I had thought from Wall was where SCC jurisprudence was heading (all of this especially US discussion is from memory, not legal advice, don't rely, etc.).

The doctrine is that courts won't deal with religious matters and religious decision-making. So for instance if a rabbi or priest or imam is fired because they allegedly didn't uphold the tenets of their religion as required for rabbis/priests/imams, the courts have to accept that. Or church ownership or property issues, etc. Now, I have problems with how far the doctrine goes in the US (I also disagree with the political question and state secrets doctrines, at least how far they go), I can understand the principle.

I mean, if the reason Trinity Western lost was because the majority wasn't persuaded that their covenant was truly necessary, then that means that in future, every time there's something religious, the administrative body will have to be deluged with expert witnesses on religion and the meaning of religion, you'll have theological debates up the wazoo, and then non-expert panelists deciding what is religious truth?! That's ridiculous, and wrong, a waste of time and money, and so on. Will humanist groups intervene in every case to deny the existence of God and therefore argue that the religious belief is unjustified? Etc. And if that's something administrative bodies do, why not courts also? Forget about balancing rights to wear a burka or other face covering, the tribunal or court can find, hey, we've found this Islamic scholar who says it's unnecessary, therefore it's not a religious right at all. Or Judaism, we prefer the reform approach, so no more kosher meals for prisoners. Or wahtever. That's crazy. Balance or delineate limits as necessary, but don't deny someone's belief that it's important to them.

Or if one is denying such, then many cases including the Wall decision from a few weeks ago are wrong or subject to being overruled, because hey, the courts should decide what's reasonable and not within the religion? I'm sure there's scope for analysis of problems reconciling Wall and TWU, not to mention all the other recent jurisprudence where the SCC has recognized religious rights (ironically, it seems that religious rights affecting education of children is accepted far more than those involving consenting adults?).

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11 hours ago, PredictablyDarwin said:

The denial of TWU’s proposed law school with the mandatory covenant is itself good: (i) The covenant likely runs afoul of provincial human rights legislation; (ii) the covenant itself is unnecessary and ridiculous, (not convinced by the concurring or dissenting reasons to the contrary); and (iii) a ruling that TWU Law with the Covenant could go ahead would, however reasoned, reflect poorly on the legal profession because much of the general public wouldn’t appreciate the rationale behind such a decision.

(i) - Covered by others.

(ii) - If the dissent didn't convince you on this point I probably won't be able to either. I'll say this though, for all the talk of deference to expert decision makers the majority didn't show very much deference to the religious group when it comes to their own religious beliefs and practices. 

(iii) - If public approval is a hurdle to religious freedom the right becomes absolutely meaningless. The court's job is to apply the law rationally, not to make decisions based on essentially political bases. I think this is exactly what happened (both at the decision maker level and at the SCC), and that's a problem.

Edited by Maurice Levy
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18 minutes ago, Rumpy said:

 Turns out I was right- did I mention that earlier?  If I didn't I was.

Well, since according to the Benchers (or at least their lawyers after the fact) either decision was reasonable, you didn't have much of a bar to get over. ;)

Quote

Ultimately, the benchers could have ignored the referendum and voted as they wished if they so choose (as one or more did).  

They said before the referendum that they would be bound by the referendum. The fact that one or more of them thought that wasn't appropriate (rightly so in my opinion) doesn't change that the group as a whole took this position. I agree that they could have gone against the referendum, but clearly they had no intention of ever doing that.

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12 minutes ago, Maurice Levy said:

(i) - Covered by others.

(ii) - If the dissent didn't convince you on this point I probably won't be able to either. I'll say this though, for all the talk of deference to expert decision makers the majority didn't show very much deference to the religious group when it comes to their own religious beliefs and practices. 

(iii) - If public approval is a hurdle to religious freedom the right becomes absolutely meaningless. The court's job is to apply the law rationally, not to make decisions based on essentially political bases. It think this is exactly what happened (both at the decision maker level and at the SCC), and that's a problem.

Why would a religious institution be entitled to deference on religious matters? Simply because it's religious? We're talking about two very different levels of deference, if any, I hope you'd agree.

And I agree with your third point, actually, and when you earlier said the majority reasoned backwards, but only because you missed my point or I didn't express it well enough. I wasn't saying anything about the reasoning, but about the outcome in itself.

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I was going to post this in the Lindsay Shepherd thread because people there are discussing TWU, but I try to avoid thread drift when there's another active thread!

My recollection is that in the US ABA accreditation means that law schools at religious universities with codes of conduct re LGBT etc. are exempted (that is, e.g. a student at University X might be bound, but not if they're in the law school at university X?). That is, law students are special...

Along those lines, let's say that TWU decides, okay, we'll open a law school, and we'll say, just as Jesus was tested by lawyers asking impertinent questions, so too have we been tested by lawyers but didn't answer as well as Jesus did... So if you're a law student, you're bound by everything in the covenant except sex within a same-sex relationship that is legally recognized by the Province of British Columbia will not be deemed to be a violation of the covenant. Is that enough? I mean, I would think a LGBT student who was nervous about TWU wouldn't exactly be happy about this, but wouldn't it be technically compliant? But then what if LSBC or LSO says, wait, attending a university where others are bound by the covenant is anti-LGBT, or restricting it to marriage is a problem, or whatever. And then votes against accreditation again, or puts it to membership vote, or whatever. From the SCC decision, did they give enough guidance that one has any idea what the result should be?

And again, except for McLachlin, didn't deal with TWU 2001, so who knows if it's law students only, or professionals only, or schools generally, or whatever, that's covered? If it's schools generally, only full access for adults, and not for children taught in religious separate or private schools?!

But, let's take Detroit Mercy, where many Windsor students who get admitted in Ontario will have gone (only for joint degree, or others?):

"The University of Detroit Mercy is committed to fostering ethical and moral values that are consistent with Jesuit and Mercy traditions. Among the core values of the university is the inherent dignity of every individual as well as the right of each person to hold and to express his or her viewpoint. When these views conflict, it is the obligation of members of the community to respect other perspectives. In keeping with these values, and the recognition of the cultural diversity of the university community, the University will not tolerate discriminatory or hate motivated conduct, behavior, or harassment based on race, ethnicity, gender, religion, age, disability, sexual orientation or political affiliation with the intention to intimidate or injure an individual(s) physically, mentally, or emotionally.

..."

http://online.udmercy.edu/students/policy-01.php

Now, sexual orientation and being in a sexual relationship aren't the same - as was discussed in some TWU submissions - but, let's say that the Detroit Mercy had exactly the same code of conduct that they do, but was silent as to discriminatory conduct (didn't mention sexual orientation). Would that be problematic because they refer to "Jesuit and Mercy traditions"? Or is "Jesuit" okay because they don't say "Catholic"? What if they talked about Catholic Christian morality generally, no specifics? Might not an LGBT student in a same-sex relationship fear attending? Or is the vagueness their friend? Or is it because there's no signing that it's okay? And, along those lines, let's say the TWU covenant was revised to say something about sexual morality consistent with Biblical understanding of marriage. That's it. Would that be vague enough to be defensible, or would they have to explicitly say SSM is acceptable, even if they don't believe so, as the price for a law school? Something like what I suggested above (thinking of Alberta and legislation to implement Vriend was not particularly gracious in its title...).

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7 minutes ago, PredictablyDarwin said:

Why would a religious institution be entitled to deference on religious matters? Simply because it's religious? We're talking about two very different levels of deference, if any, I hope you'd agree.

And I agree with your third point, actually, and when you earlier said the majority reasoned backwards, but only because you missed my point or I didn't express it well enough. I wasn't saying anything about the reasoning, but about the outcome in itself.

From Wall:

"[8]                              An initial hearing was held to determine whether the Court of Queen’s Bench had jurisdiction. The chambers judge found that the court did have jurisdiction as Mr. Wall’s civil rights might have been affected by the Judicial Committee’s decision: File No. 1401-10225, April 16, 2015. The judge also noted that expert evidence could be heard regarding the interpretation by Jehovah’s Witnesses of Christian scripture as to what is sinful and the scriptural criteria used by elders to determine whether someone said to have sinned has sufficiently repented." [emphasis added]

This is a specific example of what I was getting to above, do you really want, every time there's a religious matter, expert evidence, and then a secular court making decisions?! Hey, from the one expert's interpretation of Maimonedes' commentary on the Talmudic prohibition against X, the rabbi who ate bacon while handling the torah and used lard made from pork to lubricate the hinges of the ark shouldn't have been fired, even though the other expert pointed to the Bible itself, we'll prefer the opinion of the first expert and therefore hold that the dismissal of the rabbi for blasphemic conduct was actually not sinful according to Orthodox Judaism?

Another paragraph:

"[29]                          Moreover, mere membership in a religious organization, where no civil or property right is formally granted by virtue of membership, should remain outside the scope of the Lakeside Colony criteria. Otherwise, it would be devoid of its meaning and purpose. In fact, members of a congregation may not think of themselves as entering into a legally enforceable contract by merely adhering to a religious organization, since “[a] religious contract is based on norms that are often faith-based and deeply held”: R. Moon, “Bruker v. Marcovitz: Divorce and the Marriage of Law and Religion” (2008), 42 S.C.L.R. (2d) 37, at p. 45. Where one party alleges that a contract exists, they would have to show that there was an intention to form contractual relations. While this may be more difficult to show in the religious context, the general principles of contract law would apply."

Let's say TWU says, the covenant, in respect of sexual behaviour between consenting married adults, is moral exhortation and commandment, it is not grounds to discipline or expel someone for being in a legal same-sex relationship that we consider wrong - is that okay? Or is the problem, as many suspect, that TWU has to say that they think that religiously SSM is okay? Even if they don't believe it is? That is, is the requirement tolerance - which may include SSM students - or do they have to say they agree?

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