BLOGTwo Courts, Two Rulings, and Why Liberty Has to Take a Long Shot

By Alan Sears Posted on: | August 04, 2016

The challenges of litigating on behalf of our clients would be daunting enough if the only judges we faced were in a legal courtroom.  Unfortunately, defending religious freedom in our fast-changing culture means taking a stand in other “dockets” at least as far reaching as – and often far more high-profile than – those governed by black robes and gavels.

Compare two current courts, for instance, on cases related to steadily-mounting fallout from the still-ongoing sexual revolution. In Nova Scotia, Alliance Defending Freedom allied attorneys have spent much of the last year-and-a-half supporting Trinity Western University (TWU), a law school founded on biblical beliefs about appropriate sexual behavior.

TWU persists in endorsing and enforcing those beliefs, encouraging students, faculty, and staff to refrain from having premarital sex or engaging in sex outside of a marriage relationship between one man and one woman.

Unfortunately, those beliefs have been deemed anathema by the Barristers’ Societies of three Canadian provinces – these societies being the equivalent of U.S. state bar associations – whose members voted to deny TWU accreditation until such time as school officials renounce their Christian convictions and embrace the more malleable modern sexual mores.

Since that kind of blackballing would significantly curtail the careers of its law school graduates, TWU felt obliged to file suits against each of the three Barrister Societies, defending its freedom to operate based on its own faith convictions.

Those lawsuits have been proceeding apace in British Columbia, Upper Canada-Ontario, and Nova Scotia, with varying results. In Nova Scotia, a trial court ruled that that province’s Barrister Society had no authority to direct the moral standards of a law school. Late last month, the Nova Scotia Court of Appeals upheld that ruling, siding with TWU.

“As the court recognized, the Barristers’ Society clearly overstepped its bounds,” explains ADF Senior Counsel Brett Harvey. “The society’s job is to accredit based on competency, not on their collective distaste for Christian beliefs about human sexuality. No Canadian law gives an accreditation body the power to discriminate on that basis.”

This is a crucial victory for religious freedom in Canada … but not one calculated to make the evening news, there or in the U.S. They do make room on the evening news for the rulings of another court – the basketball court. The latest NBA stats are big news, and, of course, a lot more people follow the standings of their latest team than do the decisions of a Nova Scotia judge.

So, when the NBA pulled next year’s All-Star Game from Charlotte, North Carolina, in protest against that state’s new privacy law that protects women and girls from being forced to share locker rooms and showers with men – that action gets a great deal of attention in the court of public opinion.

Even a cursory glance at the league’s position shows that the NBA, like the NSBS, has overstepped its bounds. Why the league should feel the need to insert itself into this discussion of North Carolina’s common sense law is an interesting question – and one whose implications the NBA itself doesn’t seem to have thought through especially clearly.

As ADF Legal Counsel Kellie Fiedorek points out:

“If the NBA actually believed that there is no difference between men and women, it would merge its two leagues. Twenty years ago, the NBA recognized the innate and obvious biological differences between men and women when it created the WNBA. Today, the NBA hopes no one notices that it properly maintains separate leagues for men and women while it opposes the common sense law that simply protects the dignity interests and privacy rights of North Carolinians.”

Fiedorek goes on to point out that New Orleans – the city frequently mentioned as having the inside track for inheriting the All-Star Game now that Charlotte has been blackballed – has its own local ordinances that allow for “separate bathroom, restroom, shower, or similar facilities for males and females.” Indeed, the majority of other states allow businesses to maintain sex-specific restrooms, showers, locker rooms, and other such facilities.

The NBA, in trying to win the latest trophy for political correctness, is running afoul of common sense, missing the point of why people watch basketball (hint: it’s not for political guidance), and generally proving itself to be out of its league.

But for those more interested in the latest point spread than they are in the fate of constitutionally protected freedoms, a ruling in the court of public opinion scores higher than any legal tribunal. Persuading them of the dangers of that can be a long shot – but one any friend of liberty has to take. 


Alan Sears


Alan Sears serves as founder of Alliance Defending Freedom, building on his experience as longtime leader of the organization to strengthen alliances, forge new relationships, and develop ADF resources.

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