The (Im)possibility of Christian Education

Transcription

1 The (Im)possibility of Christian Education Victor M. Muñiz-Fraticelli * I affirm by the gods that I do not wish the Galilaeans to be either put to death or unjustly beaten, or to suffer any other injury; but nevertheless I do assert absolutely that the god-fearing must be preferred to them. For through the folly of the Galilaeans almost everything has been overturned, whereas through the grace of the gods are we all preserved. Julian, Emperor of Rome, Letter to Atarbius (362 CE) 1 In June of the year 362, Julian, the last pagan Emperor of Rome, issued an edict to restrict the use of classical texts Homer and Hesiod and the rest of the Hellenic canon in the teaching of rhetoric, grammar and philosophy. Christian teachers, he argued, taught from these texts while believing them to be guilty of impiety, folly and error and thus betrayed their hypocrisy and dishonesty. They were to be offered a choice, then: to cease teaching from the classical canon, or to renounce their claim that the Hellenic writers were wrong in their opinion of the gods. 2 The choice, of course, was an impossible one, and Julian knew it. The Hellenic authors were the only source of instruction in the Empire, and knowledge of their work was the only way to attain public offices and positions. A student educated by a Christian teacher was ineligible for advancement, or at least found promotion much more difficult. The effect of the edict would have been the elimination of Christian instruction in the * Victor M. Muñiz-Fraticelli is Associate Professor of Law and Political Science at McGill University. I want to thank Anastasia Berwald and Arielle Corobow for invaluable research assistance, and the participants of the workshop on religious education organized by Andrée-Anne Cormier and François Bouchard for their comments. Work on this article was supported by an Insight Development Grant from the Social Sciences and Humanities Research Council. 1 Julian, Works of the Emperor Julian, W. C. Wright, trans. (London: William Heinemann, 1923), at Id., at See also G.W. Bowersock, Julian the Apostate (Cambridge, MA: Harvard University Press, 1978), at

2 210 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) empire. Julian intended this, which is why he made provision for secular and religious (that is, pagan) teachers to accept all students regardless of their faith and lead them on the right path. The purpose of the edict was to render a Christian education impossible under the guise of stamping out hypocrisy, to ensure that only perfect congruence in the imperial ethos would have a place in the army and the court. The Emperor Julian did not outlaw Christianity, like his predecessors had done, nor did he prohibit Christians to teach, as long as they kept completely to themselves. He required instead that every Christian teacher take a side: for the Church or for the Empire, with no space in between. If Christian teachers would teach the Hellene classics, they had to affirm their words as true. If they denied their truth, they had to withdraw. Partial acculturation was not an option; it was all or nothing, in or out. A Christian education was an oxymoron by imperial design. It could only be pursued if the Christian element was purged and the Christian teacher taught as if he were a pagan. On one model of legal education, Julian s demand still resonates today. Opponents of traditionalist religious law schools do not seek to prohibit these schools outright, nor do they seek to exclude individual candidates who hold traditionalist beliefs from becoming lawyers. Their effort, rather, is to give these schools the option to compromise on their religious identity, or to have students lose access to the most direct routes into the legal profession. This choice inhibits the establishment of traditionalist religious law schools by increasing the cost of maintaining a distinct institutional religious identity. When the alternative is to hold fast to religion but retreat from the task of producing lawyers, or play religion down and enter the legal market without any difference from secular institutions, the result is always the elimination of distinctly religious institutions from the educational landscape. Is there an alternative that allows for the possibility of institutional diversity? I. THE TRINITY TRIALS Trinity Western ( TWU ) is a private Christian university in British Columbia. It was founded in 1962 by the Evangelical Free Church of Canada, a congregational denomination that emerges out of the Scandinavian Lutheran tradition, and still describes itself as an arm of the Church. The university began as a junior college but grew to encompass an ambitious undergraduate curriculum and more than a dozen graduate and

3 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 211 professional programs. It is one of only a handful of private religious universities in a country where higher education is almost exclusively the domain of public, secular institutions. In keeping with its understanding of its Evangelical Christian mission, TWU understands its role not only as an academic institution or a provider of educational services, but also (and perhaps primarily) as a religiously inspired community organized under Biblical principles regarded as authoritative and divinely inspired. It therefore requires that members of its community administrators, faculty, staff and students adhere to a Community Covenant Agreement ( CCA ) which directs them to embody attitudes and to practise actions identified in the Bible as virtues, and to avoid those portrayed as destructive. 3 Many of the attitudes and actions mentioned are uncontroversial, such as the cultivation of honesty, civility, truthfulness, generosity and integrity. 4 Others perhaps sit less comfortably with contemporary mores, and certainly rest on a traditionalist moral code that respects authority, values modesty and purity, and privileges marriage; or condemn activities that are otherwise legal, such as consumption of pornography, alcohol and tobacco, and presumably subjects those who indulge in them, even outside of school functions, to disciplinary action. But one clause of the CCA in particular has been subject to extensive scrutiny, the mandate for community members [to] voluntarily abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman. 5 Later in the document, as an area for careful discernment and sensitivity, it is repeated that according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God s intention that it be enjoyed as a means for marital intimacy and procreation. 6 Moreover, as critics have noted, the university s employment policies do not include sexual orientation (or, as might be expected, religion) as prohibited grounds for discrimination in hiring. 7 The CCA has come before the courts before, when the University was denied accreditation from the British Columbia College of Teachers 3 TWU Community Covenant Agreement ( CCA ), online: < twu-community-covenant-agreement.pdf>, at 1. 4 Id., at 2. 5 Id., at 3. 6 Id., at 4 (biblical citations omitted). 7 Elaine Craig, TWU Law: A Reply to Proponents of Approval (2014) 37 Dal. L.J. 621, at

4 212 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) ( BCCT ) for its teacher-training program. 8 The Supreme Court of Canada ruled that the BCCT could legitimately assess the discriminatory effect of the CCA which, at the time, expressed its disapproval of LGBTQ conduct in much harsher terms both on the formation of future educators and the public school environment, and on present and future LGBTQ students in the program. But ultimately the Court found that, given the facts of the case and the competing rights at stake, neither was sufficient to deny accreditation to the program. 9 On the first ground, there was no evidence that TWU students exhibited intolerant behaviour after graduating from the program. 10 On the other, the Court agreed that a homosexual student would not be tempted to apply for admission [to TWU], and could only sign the so-called student contract at a considerable personal cost. But this was not sufficient to establish a constitutional violation, since the voluntary adoption of a code of conduct based on a person s own religious beliefs, in a private institution was protected by freedom of conscience and religion. 11 The Court managed to differentiate the right of TWU qua religious organization to impose rules of conduct on its members, from its obligation qua educator to produce teachers who would comply with the values and standards of the profession. In 2013, TWU received approval from the British Columbia Ministry for Advanced Education to open a Law School. This followed the preliminary approval of the program by the Federation of Law Societies of Canada. The Federation, nonetheless, expressed concerns that the CCA may pose problems for the acquisition of competencies in Ethics and Professional Responsibility and Public Law. 12 The following year, the Law Societies of Alberta, New Brunswick, Prince Edward Island, Saskatchewan, and Yukon accredited the program; New Brunswick would do so the following year. Ontario and Nova Scotia reject accreditation. The Benchers of the Law Society of British Columbia initially accredit the school, but the decision is reversed in a referendum. TWU brought suit in 8 Trinity Western University v. British Columbia College of Teachers, [2001] S.C.J. No. 32, 2001 SCC 31, [2001] 1 S.C.R. 772 (S.C.C.), affg [1998] B.C.J. No (B.C.C.A.) [hereinafter TWU v. BCCT ]. 9 Id., at para TWU had been running a teacher-training program in cooperation with Simon Fraser University, which had been accredited by the provincial government, but had sought to take full control of it to have the full program reflect the Christian world view of TWU. TWU v. BCCT, supra, note 8, at para. 2. It was the inhouse program that was presented to the newly created BCCT for accreditation. 11 Id., at para Report on Trinity Western University's Proposed School of Law Program (Ottawa: Federation of Law Societies of Canada, December 2013), at para. 52.

5 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 213 Nova Scotia, Ontario, and British Columbia, losing in Ontario 13 but winning the other two. 14 The Nova Scotia Court insisted on the right to attend a private religious university that imposes a religiously based code of conduct even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. 15 It noted the distinction between recognizing the degree and expressing approval of the moral, religious, or other positions of the institution, dismissing the concern that the accrediting agency would be complicit in discrimination if it approved a discriminatory program. 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. 16 The British Columbia court also noted the religious affiliation of the University, mandated to teach from a Christian perspective in at least five bills of the British Columbia legislature, 17 and went on to decide, on narrower procedural grounds, that the B.C. Law Society had not adequately considered the Charter 18 right of freedom of religion when it rescinded approval of the TWU law school. The Ontario Divisional Court, by contrast, placed little weight on the institutional religious rights of the TWU or the Evangelical Free Church of Canada, and recent constitutional developments that would seem to favour such collective interests were only reluctantly acknowledged. 19 The 13 Trinity Western University v. Law Society of Upper Canada, [2015] O.J. No. 3492, 2015 ONSC 4250 (Ont. Div. Ct.), affd [2016] O.J. No. 3472, 2016 ONCA 518 (Ont. C.A.) [hereinafter TWU v. LSUC ]. 14 Trinity Western University v. The Law Society of British Columbia, [2015] B.C.J. No. 513, 2015 BCSC 2326 (B.C.S.C.) [hereinafter TWU v. LSBC ]; Trinity Western University v. Nova Scotia. Barrister s Society, [2015] N.S.J. No. 32, 2015 NSSC 25 (N.S.S.C.) [hereinafter TWU v. NSBS ]. All three cases are now in appeal. 15 TWU v. NSBS, supra, note 14, at para Id., at para TWU v. LSBC., supra, note 14, at para Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter ]. 19 Note the qualifications and conditional language when explaining Loyola High School v. Quebec (Attorney General), [2015] S.C.J. No. 12, 2015 SCC 12, [2015] 2 S.C.R. 613 (S.C.C.), revg [2012] Q.J. No (Que. C.A.) [hereinafter Loyola ]: In that regard, we refer first and foremost to the decision in Loyola that appears to place a somewhat more expansive interpretation on freedom

6 214 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) only interest the court considered relevant was the ability of an evangelical Christian to gain a legal education at any school, not the desire to obtain this education at an Evangelical institution. The court read the mandate of the Law Society of Upper Canada widely to advance the cause of justice, to maintain the rule of law, and to act in the public interest 20 and saw no space between accreditation and moral approval of TWU s policy. Accreditation amounted to collusion, and in approving TWU s degree, the Law Society would lend its tacit approval to the institutional discrimination that is inherent in the manner in which TWU is choosing to operate its law school. 21 II. DISCRIMINATION BY ANY OTHER NAME The argument about discrimination in Canadian legal education has not only been raised by the law societies. TWU also argued that its desire to set up an Evangelical law school was intended to remedy the disadvantage faced by Evangelical law students. But it is hard to see how this argument was either substantiated or necessary. As the Ontario court observed, it is not clear that Evangelical students face systemic obstacles when seeking a legal education in Canada. If they were discriminated against in secular schools admissions, or if their views were routinely ridiculed or declared unwelcome then it would be an important indictment of Canadian legal education, but one best resolved by reasoned debate and tolerant engagement in the ordinary academic setting. But the evidence for this seems, at best, anecdotal. And, in any case, it is wrong to regard discrete religious institutions as only or even primarily justifiable as a remedial measure to correct injustice or exclusion. The permissibility of separate religious educational establishments should not require that the religious group have been the object of prior discrimination. If religious education is available in a pluralist society and it is so in Canada then it should be available to any group, whether in the majority or the minority. While the constitutional provisions for religious education in the Constitution Act, 1867 secure that right for (some) religious minorities, 22 this provision only makes sense against the of religion than may have been reflected in Big M Drug Mart. TWU v. LSUC, supra, note 13, at para Id., at para Id., at para Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 93. As made clear in Adler v. Ontario, [1996] S.C.J. No. 110, [1996] 3 S.C.R. 609 (S.C.C.), affg [1994] O.J. No (Ont. C.A.), not all religious

7 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 215 backdrop of a majority culture that the minority deems incompatible with its creed and practices. And besides, minority and majority statuses change with demographics and social mores. It is enough to say that Christians want to build communities animated by a common faith and organized around shared norms, especially when those norms diverge from those of the larger society. As Douglas Laycock has written on the subject of religiously affiliated academic communities, most serious believers believe that the religious aspects of their lives cannot be segregated or isolated from the other aspects of their lives. The combined effect of the commitment to religious communities and the commitment to integrate religion with all aspects of life is that some of the religious individuals in academia will be attracted to religiously affiliated institutions of higher education. 23 This seems to capture Dwight Newman s more nuanced view that religious universities have the potential to increase the accessibility of legal education to students who may not be well served by existing, secular law schools. 24 The argument here is not mainly that secular universities discriminate or maintain an unwelcome atmosphere towards Evangelicals, but rather that secular legal topics may be approached and discussed differently in an environment that acknowledges and even encourages religious faith. This claim is independent of any history of discrimination. The Ontario court (and the critics of TWU) was also right in concluding that the CCA discriminates against LGBTQ students. TWU has sometimes denied or avoided this conclusion, suggesting that the relevant clause of the CCA only regulates sexual conduct, not sexual identity, and that the disciplinary policies contemplated in the CCA are not, in practice, used to deny admission to or expel LGBTQ students from the school. Yet the CCA and the student accountability regulations contemplate dismissal as a possibility. And the distinction between conduct and identity is a judicial minorities may constitutionally avail themselves of state-funded religious education. It is generally assumed, however, that they are all allowed to set up schools at their own cost, although the Supreme Court has not made clear whether this is a constitutional or statutory right. Cf. Loyola, supra, note 19, paras. 54, Douglas Laycock, The Rights of Religious Academic Communities ( ) 20 J.C. & U.L. 15, at 16. Laycock gives several examples of religious academics ill at ease with the secular environment in which they teach, and hoping that they could move to a more welcoming institution, but he does not consider this malaise discriminatory. 24 Dwight Newman, On The Trinity Western University Controversy: An Argument for a Christian Law School in Canada (2013) 22:3 Const.Forum Const. 1, at 2.

8 216 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) non-starter. 25 The only form of sexual intimacy deemed legitimate by TWU is one attractive only to straight persons, and the choice left to those not drawn by this form of union is compelled abstinence. It is disingenuous to pretend otherwise. But to put any weight on the distinction is also counterproductive to TWU s own claims about Evangelical identity. Thomas Berg pointedly observes that, both same-sex couples and religious objectors argue that certain conduct is fundamental to their identity, and that they should be able to engage in it free from unnecessary state interference or discouragement. For same-sex couples, the conduct in question is to join personal commitment and fidelity to sexual expression a multi-faceted intimate relation in a way consistent with one's sexual orientation. For religious believers, the conduct is to live and act consistently with the demands made by the being that made us and holds the whole world together. 26 Religious identity demands continuity between belief and conduct, which compels religious believers to orient their association with others in light of their beliefs; and this applies to all aspects of their lives, from sexual union in marriage to the creation and maintenance of academic communities. But the same continuity between identity and conduct is claimed by those who take exception to the distinction between LGBTQ identity and conduct. Whatever moral value TWU wishes to attach to LGBTQ identity in the end, it should recognize that the structure of religious and LGBTQ claims is the same: identity and conduct are continuous. If so, the CCA is discriminatory against LGBTQ people, and would be prohibited in all secular settings, although Evangelical Christians might feel that discrimination is religiously justified within their institutions in the service of preserving a religious community. 25 Courts have thus recognized that there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself. Saskatchewan (Human Rights Commission) v. Whatcott, [2013] S.C.J. No. 11, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 124 (S.C.C.), varg [2010] S.J. No. 108 (Sask. C.A.). See also TWU v. BCCT, supra, note 8, at para Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common (2010) 5 Nw. J.L. & Soc. Pol y. 206, at 212.

9 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 217 III. THE PURPOSES OF ANTIDISCRIMINATION LAW Opposition to TWU s program is grounded on its discriminatory policy towards LGBTQ students. But this may be understood in two ways. Either the problem is the effect that the CCA will have on LGBTQ students access to the market for legal education in Canada, or it is the offensiveness of the policy itself. These two alternatives map well onto two different theories of what antidiscrimination law is supposed to achieve. Nathan Oman, in a recent article, contrasts two theories of the market that have different implications for the reach of antidiscrimination law. Now, a theory of the market has obvious limitations in the case of access to legal education. Law schools occupy a different place than business firms in the structure of society, and legal education is a very special kind of good. Lawyers are obliged to follow a strict ethical code and are entrusted with the highest fiduciary duties. And whether TWU can fulfil these functions may be subject to evidence. Still, there is a limited number of spots in Canadian law schools and there is competition for admission to top schools and for acceptance of the best students, so the market analogy, with all the caveats, is apt. The account of the market that aspires to congruence Oman calls the public theory. 27 The public theory of the market, he explains, takes the relationship between the state and citizens in a well functioning liberal democracy as the model for structuring the market. 28 This theory analogizes all asymmetries of power to those of the political realm, and seeks to render the relationship between private actors congruent with robust democratic or republican principles. For proponents of antidiscrimination laws, the market is a public space in which all are entitled to equal respect regardless of their race, religion, or sexual orientation. The evil of discrimination lies in the act of discrimination itself, independent of the question of how pervasive the discrimination might be The distinction between public and private should be understood by analogy with public and private law, and not by analogy to the discredited public/private distinction. All theories of the market are public in the latter sense, but the justifications they invoke are either analogous with substantive state norms or with procedural capacity for consent. I thank Ivana Isailovic for pointing out this difficulty. 28 Nathan B. Oman, Doux Commerce, Religion, and the Limits of Antidiscrimination Law (2016) 92 Ind. L.J. (forthcoming), 14. Available online: SSRN < >. 29 Id., at 16.

10 218 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) The public theory demands congruence between the values of public accrediting bodies and the private values of religious institutions that provide public goods in the public sphere. The core idea of congruence writes Jacob T. Levy, is that associations, groups, and intermediate bodies ought to be normatively constrained to be democratic, constitutional, and rights-respecting. 30 What s more, this demand for congruence is imported into those activities that step outside the narrow cloister of the church and employ, engage, or serve members of the larger society. 31 This is especially burdensome for those groups that Berg identifies as partially acculturated religious entities, whose religious motivation compels them to provide valuable social services to the broader society, but also structures and constrains the provision of these services in ways that sharply clash with the dominant secular values in their relevant sphere. 32 By contrast, the private theory of the market distinguishes between the norms that obtain in interactions among citizens or between citizens and the state and those that apply to commercial behaviour. Yet, while the private theory grounds the legitimacy of the market on consent, and therefore admits many contracts and agreements that would be unacceptable in the context of citizenship, it uses that same principle to justify public policies against discrimination. Yet it is not the error of discrimination that concerns the public theory, but rather that discrimination is so systemic that its victims are unable to fully participate in commerce. 33 The judgment of whether this is the case is necessarily contextual. It was clearly the case in the American South during the Jim Crow era (and in much of the North as well), where African-Americans did not face individual acts of discrimination, but a market so infested with institutions and practices based on white supremacy that it denied 30 Jacob. T. Levy, Rationalism, Pluralism, and Freedom (Oxford: Oxford University Press, 2014), at Levy explains that [t]he congruence theory sometimes justifies importing the moral constraints on state action into the associational sphere by noting the need for the state to enforce the private agreements and rules of the latter sphere in case of conflicts. Levy, id., at Thomas C. Berg, Partly acculturated religious activity: A case for accommodating religious nonprofits (2016) 91 Notre Dame L. Rev. 1341, at Another difficulty in accommodating partially acculturated groups and what frustrates those who insist that they be congruent with secular values when providing public goods is that the very countercultural demands for commitment that distinguish these groups seem to be the ones that generate motivation in members. This confirms that, absent the CCA, there would simply not be a TWU Law School, since the motivation to set one up is to have a separate space distinct from that provided by secular society (at ). Berg here follows Dean Kelley s famous argument about the vigor of conservative churches and the decline of mainstream religious groups. 33 Oman, supra, note 28, at 31.

11 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 219 African-Americans meaningful economic opportunity. 34 And it is still the case in many communities where pervasive discrimination against gay customers may pose significant limits on the ability of gay citizens to participate in commercial life. 35 What is, then, the objection to a religiously motivated policy that discriminates against LGBTQ students? On the private theory of the market the objection would be that TWU contributes to the systemic denial of access to a legal education, and subsequent entry to legal practice, for LGBTQ students. But this is patently not the case. The widespread objection to TWU law school is the best proof that the community of Canadian law schools, and the Canadian legal profession in general, is welcoming of LGBTQ students and attorneys, and that there is no systemic denial of access to legal education or the legal profession. 36 TWU is an outlier in a Canadian legal academic culture that has publicly embraced antidiscrimination norms and taken affirmative (if perhaps insufficient) steps to guarantee admission and retention of LGBTQ students. Of course, access to that culture is limited by the low number of places in Canadian law schools, and this magnifies the impact of TWU s policy by contrast to similar policies in the United States because prospective Canadian law students have fewer options. But would those options increase if the TWU Law School was not accredited? This is the test demanded by the private theory. Given how fundamental the biblical conception of marriage is to TWU s identity, the alternative to TWU Law School with the discriminatory CCA is not TWU Law School without the CCA. The alternative is no TWU Law School at all, and thus no additional places for straight or LGBTQ, religious or secular students. 37 The university is founded on a religious mission however objectionable some part of it may be to the mainstream of Canadian society. It is a branch of the church. From TWU s perspective, it would be incoherent to claim a Christian identity but not enforce norms 34 Id., at Id., at This is not to say that there is presently no discrimination remaining against LGBTQ persons, and especially youth, in Canadian society, or that this discrimination does not have serious impacts on LGBTQ persons. That is patently not the case. See D. Ryan Dyck, LGBTQ Suicide Prevention Summit 2012: Report on Outcomes and Recommendations (Toronto: Egale Canada Human Rights Trust, 2012), available online: < It is only to point out that, in the legal academy and profession, discrimination is not systemic, is countered by explicit antidiscriminatory norms, and does not present a barrier to access. 37 Perhaps even fewer, since some Evangelical students eligible for a spot at some other law school may choose to attend TWU and thus free up a place in that school.

12 220 SUPREME COURT LAW REVIEW (2016) 75 S.C.L.R. (2d) that ensure that TWU remains a Christian space, and not merely as a school substantively identical to all others that is merely administered by Evangelicals. The criticism of the CCA that is grounded on the public theory does not depend on empirical harm, but rather on the inherent wrongness of the discriminatory policy. Even before the TWU Law School opens, it is presumed to be not a learning environment capable of developing an adequate understanding of the ethical duty not to discriminate 38 by reason of the incongruence between its values and those of the law societies. Error as the old Papal adage went has no rights. The demand for congruence also requires zealous purity from accrediting agencies, by rendering every administrative decision a full endorsement or rejection of the plan or project being considered. This is the complicity argument that the Ontario court advances. 39 But if every accrediting decision implies complicity with the values of the program that is licensed, then there is no possibility for diversity of values in any field that requires state approval. Religious education, for instance, would be permitted only when religious doctrine is perfectly congruent with the ethos of the state. Religious education would only be permitted when the religious element makes no difference to the climate of a school, when a perfectly secular alternative aligned with majority values would do as good a job. Congruence would admit religion only when religion is redundant, and shut it out of the public sphere when adherence to a religious ethos would actually make a difference. 40 If this is the intent of advocates of congruence, then they should bite the bullet and license only good churches to set up educational institutions, or just prohibit religious education altogether. The private theory of the market avoids this conflict by permitting religious associations to act in the world while maintaining institutional spaces that conform to their principles. This is especially opportune in the present legal and political climate, in which the most salient struggles for 38 Elaine Craig, The Case for the Federation of Law Societies Rejecting Trinity Western University s Proposed Law Degree Program (2013) 25 C.J.W.L. 148, at The Nova Scotia court s opinion, by contrast, denies the need for congruence: private religious institutions do not need to fully embrace public values in order to provide credentialed public services, and the credentialing agencies are under no obligation to ensure that all public providers embrace these values, only that the service is available through some public provider without undue burden. 40 I have made similar arguments against models of associative democracy, which encourage the provision of public goods by voluntary associations, but only if their aims and means conform to what the democratic state deems acceptable. Associations are thus conscripted into the state s own projects, not allowed to develop their own. V.M. Muñiz-Fraticelli, The Structure of Pluralism (Oxford: Oxford University Press, 2014), Chapter 4.

13 (2016) 75 S.C.L.R. (2d) CHRISTIAN EDUCATION 221 legal recognition of LGBTQ rights have been won and public opinion has shifted in a remarkably brief period of time to favour equality and inclusion. Whatever ultimate policy preferences may be harboured by traditionalist religious adherents, their demands have largely moved away from public enforcement of religious morality and towards associational protections that might enable them to reconcile their faith and their civic life. The private theory allows these groups to provide goods like legal education which are not provided by secular institutions to a sufficient degree, but eagerly supplied by religious adherents. And it conditions the regulation of these institutions to demonstrable, contextual analysis of the effect that they would have on access to said goods. This seems like a far more workable alternative than an appeal to congruence that denies religious organizations the opportunity to provide valuable public goods to the general society an opportunity which they enthusiastically embrace, by virtue of their faith, often at little cost to the public purse unless they conform to majoritarian mores.

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