Saturday, June 18, 2016

Where Rights Collide? State Support of Religious Education

If there is no attack on religion in New Brunswick and if the "free tuition" problem confronted by Crandall University is -- at least in good measure -- a problem of its own making, can Crandall still make a claim that the policy should apply to its students? In other words, even if the analysis of where the problem comes from is wrong, could the proposed solution -- to extend the policy to Crandall students -- be correct? There are those who will immediately say "yes" and those who will immediately say "no." The "no" side argues that the state should not be in the business of funding religious education, particularly if it is is exclusionary and discriminatory. If Crandall (or, any other institution) wants to offer courses, that is its business, but the state should not support institutions that deny the basic rights enshrined in the Canadian constitution. Those who say "yes" are equally vehement. Crandall offers an educational choice. Why should the state impose its values (the merits of at least some of which they question and suggest might not be as widely held as some people think) on particular institutions? Does it not impose a religious means test on the institutions of our society (those who don't conform to particular state-sanctioned views, don't get funded) and contravene freedom of conscience?

What I want to suggest is that both views have merits and don't. The issue is more complex than quick answers and the quick answers that the proponents of either side offer miss important issues that should be considered. My goal in this blog is to address these issues. I don't think that by so doing I will actually bring clarity to this matter. In fact, I might confuse it more. But, confusing it more might be what is actually needed. What are the complications?

First, the distinction -- as I tried to indicate in a previous post -- between Crandall and other institutions is not as great as one might think. For one reason or another, both the proponents and opponents of Crandall paint it as different, out of step with the rest of the province in terms of post-secondary education. I cannot speak to how different subjects are taught at Crandall but in terms of its relationship with the state, the distinctions are often more matters of degree than kind. Crandall, for instance, can and has benefited from state grants. It does not obtain regular operating financing from the state -- which, again, is its choice -- but over the years its obtained grants in lieu of taxes from the municipal government and infrastructure grants from the federal government. There may be others but those are the two that I am aware of. Its students can also take advantage of tax credits in the same manner as students at any other university, there is a process to transfer credits, its BEd students become teachers in the province so there don't seem to be any problems with certification at the provincial level, and its benefactors can also take advantage of tax credits as Crandall is a registered charitable institution. This, too, of course, is similar to so-called "public institutions."

If we put all this together, in other words, the sharp distinctions that paint Crandall as unique in *not* benefiting from state programmes needs to be qualified. I am not saying Crandall gets as much money as Mount A but that is not, of course, the point (since as I keep saying, Crandall has chosen to define itself differently). What I am saying is this: the idea that it derives no benefits from the state (or, is even under attack by the state) is inaccurate. One can make of this what one will, but the distinction seems to me to be more one of degree than kind, at least in this regard. And, this could be interpreted as support for either those in favour of extending "free tuition" to Crandall students or not. One could argue (a) Crandall already derives benefits from the state and so it is now asking for more -- to be treated the same as Mount
A, say, without wanting to be the same. One might continue to say that no one is saying that these benefits should change but this is the line that is in place and if people at Crandall want to change this line, they are welcome to but that involves a different relationship with the state. Conversely, (b) one could argue that since there is already a practice of state support for Crandall, why would one choose now to impose an artificial limit on that support that penalizes students for the choices that they make when we do not know why they the chose to attend Crandall. To continue: extending free tuition does not give the stamp of approval to Crandall but instead supports students who may or may not have other post-secondary educational options or who may even argue against Crandall's exclusionary policies? Is it fair to harm them particularly when the state has a history of supporting Crandall?

Second, the issue of equality under the law is clearly one that is important. I gather that some folks who support Crandall are considering suing the provincial on the grounds that its new "free tuition" policy is discriminatory in that it precisely limits its provenance to those who attend secularized institutions. This is is not a slam dunk argument, as I've now said many times, because the folks who run Crandall have chosen -- for their own reasons -- to, in some ways, be different. Hence, the issue is not necessarily state policy. But, the Canadian constitution does not simply guarantee equality before the law; it also guarantees equal benefit of the law.

This is an important concept. What does it mean? This: the law cannot actively discriminate or perpetuate discrimination by maintaining policy that produces material harm to identifiable groups of people. As an example, consider one of the original defenses of the old Marriage Act that discriminated against gays and lesbians. One of the defenses of this act was that it did not, in fact, discriminate. Gays and Lesbians were free to marry if they so chose. They just had to marry someone of the opposite sex ... like everyone else! I kid you not. People actually made this argument.

This is where the idea of equal benefit of the law comes in. In this case, the operation of the law worked in a way that discriminated against a specific and definable group of people. They were not deriving the same benefit of the law as were straight people. In fact, the law stopped them from deriving the same benefit. Hence, the issue is not just "does this law treat everyone the same?" but does it discriminate against a specific group of people that we can identify.

In some ways, the "free tuition" law does. It the example I've been pursuing across a number of blogs, it discriminates against poorer students who attend Crandall. Is that sufficient to make the law unconstitutional?

The short answer is this: I don't know. In my view, the law -- as I have said -- does not threaten freedom of conscience. It does not impose any restrictions on Crandall in terms of what it can teach. It does not limit the voices of people at Crandall in terms of their ability to make their case. It does not close down any churches or websites or stop any sermons. I don't see a law suit, therefore, that is launched on the basis that the "free tuition" programme contravenes freedom of religion as likely to succeed. The principle of equal benefit of the law is more problematic, however, and I think there might, in fact, be a case here.

Why do I say that? Well, for the reasons that I've just outlined. We may have problems with some of Crandall's policies and regulations. I do. I've said before I find them scripturally problematic and I am not at all convinced that the types of prohibitions maintained by institutions like Crandall do anything to advance Christianity. At best, they set up parallel institutions that interact poorly with the rest of society. But, even while I have objections to what Crandall does, I find it more difficult to extend -- as I was suggesting above -- that criticism to the students who attend that institution simply because I don't know their views.

At this point in the discussion, someone usually rightly asks "should taxpayers' dollars go to support institutions with which they have problems?" I've tried to explain before that that question is not as simple to answer as it seems. After all, I am required to pay my taxes (and rightly) whether or not I agree with the policies of the state ... and a great deal of the time I don't. So, the issue it seems to me is not like or dislike the policies. The issue is whether or not the state has fulfilled its obligations to equal benefit of the law through its other policies of which Crandall students can take advantage.

At this point, I should also say that I am, partly, confused by this vehemence with which some people put this issue, on either side. I do understand that LGBTQ Canadians have suffered -- and continue to suffer -- a great deal of abuse, violence, and discrimination. They do not feel that institutions that support discrimination should be funded and they have a case. This is something I don't think the people who run Crandall fully realize or have considered as fully and deeply and as sympathetically as they should. We are not dealing with people who are challenges to your religious views in the LGBTQ community, but people who are challenging the old line "God has said that this is a sin, abomination, etc." We have very long history in Canada of using God to justify this-worldly prejudices and I personally believe that this one should be challenged as well. If we look back into Canadian history, we discover that people believed God wanted residential schools or supported racism or opposed admitting Jewish refugees or sanctioned violence against women. Said differently, there are many things that Canadians have believed in the past for which we can find very little scriptural evidence and discrimination against LGBTQ people is exactly the same.

What confuses me about this issue is many things. I'm confused that it has become an issue. I don't understand why some Christians feel that they are under attack when they are so manifestly not (and, if anyone has lived in a place where their religion is actually under attack, they would know the difference between that and modern NB). I don't understand why some Christians have made sexuality "the hill do die on." I've said this before but my "hill to die on" is love God and your neighbour. Likewise, I don't quite get the pursuit of Crandall by its opponents, excepting those people who fall into the category that I just noted in my previous paragraph. Crandall is a small institution with less than 800 students. We are not talking about UoT or UNB or even Mount A.

I began this series of blogs - -which, someone might say "mercifully" -- I now end by saying that if Crandall did not exist, its opponents and its proponents would need to create it.  That might have been an overstatement. The reason this issue -- free tuition for Crandall students -- is important is because it touches fundamental issues in Canadian society that end up not being about education. The key issue, from what I can tell, really is this: is the freedom of religion also the freedom to discriminate? And, if so, how far does that right go? In the US, some people have tried to argue that it extends into society, to the point where I can deny service someone by virtue of their sexual orientation if I deem it offends my religious values.

I don't think we are talking about that in Canada but that is the issue: is the freedom of religion, the freedom to discriminate. As as Christian, I don't think it is. In fact, I am horrified that Christianity is associated with bigotry. I work hard to be open and to be caring and to promote inclusiveness because I think those are the things that are more important to Christianity. I'd be worried, I think, about a society that made that equation (freedom is the freedom to discriminate) easily. It would not be the type of society or the type of religion that is true to my heart and my conception of Canada.
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