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 123.
2
Id., at 117-23. See also G.W. Bowersock, Julian the Apostate (Cambridge, MA: Harvard
University Press, 1978), at 83-85.
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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
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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: <https://twu.ca/studenthandbook/
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
628-29.
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(“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. 3029 (B.C.C.A.)
[hereinafter “TWU v. BCCT”].
9
Id., at para. 35.
10
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. 25.
12
Report on Trinity Western University's Proposed School of Law Program (Ottawa:
Federation of Law Societies of Canada, December 2013), at para. 52.
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Nova Scotia, Ontario, and British Columbia, losing in Ontario13 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 Charter18 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. 11.
16
Id., at para. 15.
17
TWU v. LSBC., supra, note 14, at para. 132.
18
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. 15094 (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
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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.
82.
20
Id., at para. 116.
21
Id., at para. 115.
22
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. 1427 (Ont. C.A.), not all religious
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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, 64-69.
23
Douglas Laycock, “The Rights of Religious Academic Communities” (1993-1994) 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.
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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. 23.
26
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.
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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.29
27
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 <http://ssrn.com/abstract= 2748585>.
29
Id., at 16.
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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 51.
31
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 52.
32
Thomas C. Berg, “Partly acculturated religious activity: A case for accommodating
religious nonprofits” (2016) 91 Notre Dame L. Rev. 1341, at 1343. 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 1359-61). 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.
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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 48.
Id., at 40-41.
36
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: <http://egale.ca/ysps2012/>. 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.
35
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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 160.
39
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.
(2016) 75 S.C.L.R. (2d)
CHRISTIAN EDUCATION
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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.