TWU does not mandate any affirmative action or belief with respect to homosexual conduct or gay marriage. It requires only that its students not engage in the sort of conduct that gives so many American university fraternities (and football players) such a bad reputation. And, in any event, what effect would such a student code of conduct have on the ability of TWU graduates to practice law?
None, according to the Supreme Court of Nova Scotia in a 139-page opinion issued 28 January. Justice Campbell's judgment begins with the straightforward (but frequently overlooked) observation that "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. Orthodoxies, secular or religious, can provide the comfort of certainty." In other words, the position of the opponents of TWU is equally the result of moral convictions as TWU's. The question is not one of morality but of whose morality trumps. Will TWU be free to adopt rules consistent with its moral judgment or must it be subject to the minuscule voting majority of the Nova Scotia Bar Society?
A few pages later the opinion again lays out the problem in terms of dueling moralities and the power of the members who espouse one moral judgment to impose it on a private institution in another province over 3000 miles away:
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. Counsel for the NSBS described TWU’s proposed law school as a “rogue” law school. It would be so only 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. 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.It is noteworthy that the Court concluded that the possibility that members of the LGBT community might be offended by TWU's code of conduct was immaterial: "People are not protected from being offended or suffering minority stress by the exercise of another person’s freedoms, even if that expression is objectively offensive."
Reading the full judgment would disclose a finely crafted, thoughtful, and nuanced opinion. It is exceptionally well-written and it give persuasive evidence that Justice Campbell is far better read than most judges south of the border.
I have the judgment in a .pdf file and don't know if it's yet publicly available on the internet. In any event, I would be pleased to share it with anyone who asks.