Friday, May 28, 2004

Soldiers and Societal Morals

Yesterday the “Culture” channel of French radio had a discussion about the recent events concerning photos of American soldiers and captured Iraqis. The learned and articulate guests quoted extensively from Michael Moore and Susan Sontag. Several wanted to discuss the latter’s comments somewhere to the effect that the Iraq photos were really about pornography and that this pornography was a part of mainstream American culture.

I think that Sontag is correct to look for the deeper moral malaise that undergirds the kind of horror that we now see unfolding from within the armed forces of so-called “civilized” countries.

What has caused revulsion in many quarters around the world is pornographic which accounts not only for its production (why else would soldiers have involved women holding men by what looked like a dog-leash in direct mimicry of sado-masochistic sexual poses) but its wide viewing audience.

Some Iraqi militants, for their part, created another real-life “snuff film” which has been watched by millions of Americans on the internet. These are largely the kind of thing one ought to expect from cultures steeped, as all our countries are thanks to both Hollywood and the internet, in pornography not only of image but also of action. I want to explore this a bit further below.

First, however, let us consider the credibility of our outrage not the mere fact that we are outraged. What counts about outrage are the reasons for it not the mere passion of it.

What makes outrage meaningful is that it has a meaning - - or can have a meaning. Ours, in fact, for the most part, doesn’t go very far because we have, in great measure, lost what could be called the credibility of morally coherent positions and the moral credibility that comes from the holding of such positions.

Consider how strange it is that people get morally outraged about sex between soldiers and the way that those soldiers (male and female) treat their captured enemies but not about the fact that their cultures have become generally sexually saturated and that images that degrade men and women are sent out to people’s emails free every day.

But it isn’t just about sex and photos that our outrage rings hollow. Consider the hollowness of our concern about the “dignity” of the captured soldiers. I am not, here, thinking of those soldiers who are kept in breach of international law at special prisons, I am thinking of what happens to our neighbours, our friends and our daughters.

We tolerate the abortions of our young women and their being the abandoned playthings of young men. We tolerate no-fault divorce and non-marriage. We tolerate the selection of handicapped children for abortion before birth and increasingly for infanticide after birth. Euphemisms abound in this world of distraction from reality.

We do “amnio” to sort out the ones who are worthy from the ones who should be killed and announce, as did a legal acquaintance of mine years ago, that we are “pregnant” only after the amnio results as if the fact of a healthy fetus was more important than the fact of pregnancy itself.

We “selectively reduce” those fertilized in excess of “needs.” We do “pre-implant genetic diagnosis” again, to select out the best and dispose of the rest. All of it, or most of it anyway, tolerated by a medical ethics community that is confident that it can deal with future developments in some meaningful way when it has already lost the ability to deal with current developments in a meaningful way.

This kind of “moral” avoidance of debates about morals or, more accurately, the attempt to have a “moral stance” in one area when it is abandoned in others, is in virtually every area of our lives together today.

Now we are intolerant if we do not welcome same-sex marriages and virtually anything else that the same-sex lobby wants and are considered equivalent to racists if we point out that the many attacks against religions made by those activist groups are lacking in fairness or are the beginning of an illiberal movement in society.

We are increasingly not allowed to draw a line between respecting a person while rejecting that person’s conduct - - that is, unless the conduct is still (somehow?) in the diminishing category of acts that most of us consider wrong. But with the new “ethics” what was once wrong, as we all know, soon becomes private choice then a “right” and then, to oppose it, becomes wrong.

The State having no place in the bedrooms of the nation (so as to allow homosexual acts in the 1970’s) soon becomes “the State has a direct role in furthering the visibility of gays and lesbians” (in the 21st Century). Soon, no doubt, it will be criminal conduct to respect gays and lesbians but suggest that their sexual conduct is unacceptable. How things change.

We really should ask how can a society that pooh-poohs morality have any credibility when it develops sudden outrage about what soldiers do? The hit and miss “values” of my own generation - - summed up by “save a tree” and “free choice on abortion” is getting, if not what it deserves (for who can deserve this kind of nightmare?) but what was predicted a long time ago by many writers who saw all this coming.

R.H. Benson (Lord of the World), Martin D’Arcy (Christian Morals), C.S. Lewis (The Abolition of Man & That Hideous Strength), Aldous Huxley (Brave New World) and George Orwell (Nineteen Eighty-Four) all wrote books about this kind of thing and no doubt many others have as well. In our own time, Walker Percy (The Thanatos Syndrome) and the Canadian writer Michael O’Brien (Father Elijah, Strangers and Sojourners, The Plague Journal) have added to the dystopic visions of a world gone very wrong.

What masquerades as ethics nowadays is largely bankrupt; what goes about voicing outrage is simply selective and is lost in the general din of what Leonard Cohen termed “party time.”

So don’t give me your outrage about the behaviour of soldiers until you have developed a morality of warfare. Don’t give me a morality of warfare until you have some meaningful standard of the dignity of the human person (and all human persons) and don’t even think about spouting a morality of the dignity of the human person until you have started criticizing the societies that have already made a medical, legal and political art of reducing human beings to steak tartar in the garbage under the language of “choice” “equality” and “freedom.”

As for “sex” don’t be outraged unless you have some concept of what kind of sex is acceptable, for what reasons, and in what settings.

In making sexual videos and pictures the soldiers are just doing what everyone else does, just in a different setting. It is a question of degree. They are doing as well - - or as well as they think they can do it given the training they got and the societies in which they got it - -as societies that systematically devalue, degrade and extinguish human life and make a very public spectacle of human sexuality.

If we think what they did is wrong we ought to have some clear idea why some things are moral and some things aren’t and then we really ought to look at the other things that make our “moral” positions so weak today. Since our “values” do not support a moral analysis about the dignity of human persons it ought not to be such a great surprise when our conduct is outrageous.

What is outrageous is that so much is not outrageous.

Iain T. Benson©

Tuesday, May 18, 2004

The Cost of Defending Rights

A recent court decision shows that it is possible in Canada for a person, while defending the exercise of his rights, and partially winning, to be hit, on appeal of an award of costs in his favour, with costs later on.

In this case the person involved was fighting the Spirit of the Age - - pushing an unpopular cause and, in fact, challenging the wrong side of a politically correct issue. He won a significant victory as a matter of fact - - a victory that many people would like to downplay. The cost award against him makes this even clearer.

The case is one that has been watched widely in Canada for some years and one that we have already written about at the Centre (see our “LexView” review of the Brockie case at and

Before discussing the latest wrinkle in this corrugated litigation, I must state my personal involvement in the Brockie case. I was co-counsel on Mr. Brockie’s appeal to the Ontario Divisional Court after he had been fined and ordered by an Inquiry Panel of the Ontario Human Rights Commission to print whatever materials gay and lesbian groups brought to him in the future.

He had refused to publish materials that group wanted published. I had nothing to do with the original hearing before the Ontario Human Rights Commission and was only retained for the appeal after the decision of the OHRC came out against him.

I also had nothing to do with the costs hearing after his victory at the Ontario Divisional Court.

To backup for a moment, it should be recalled that on the first appeal, Mr. Brockie appealed both findings (the OHRC remedy and the $5,000 fine awarded against him). He won on remedy and lost on the fine. But he also won in relation to another extremely important point - - that of whether his religious beliefs had any public dimension or whether he could only hold these beliefs (as had been argued against him) in his home and church.

The Gay and Lesbian Alliance, on the other hand, won the right to have its ordinary business papers published - - cards and letterhead. That’s it. The more controversial materials Mr. Brockie and others like him were concerned they would have to publish he is entitled to refuse to print. That was the major issue in the case and everyone in the courtroom knew it. Somehow this got lost before the Court of Appeal.

At that original appeal, he was awarded, by the Ontario Divisional Court, as befits this divided result, costs in the region of $25,000 dollars against the parties that opposed him. The original fine of $5,000 was left in place for reasons that always seemed elusive.

So much for background. This brings us to the cost award being appealed by the head of the Gay and Lesbian Archives (one Mr. Brillinger), the Archives itself and the State’s own agent, the Ontario Human Rights Commission.

The OHRC, judging by their arguments in court and various self-serving but erroneous press pronouncements, one of which prompted us as lawyers to write to the National Post about, (they published it) is made up of many people who wish religion simply minded its own business and stayed in the closet. Meanwhile they are arguing that homosexuality and lesbianism need the State to encourage “visibility.” Such is the climate today.

In what can only be described as a bizarre reading of the Ontario Divisional Court decision (the one largely upholding Mr. Brockie’s rights), the Ontario Court of Appeal (Justices S.T. Goudge, J.C. MacPherson and G.D. Lane) held that: “…. the slight change in the tribunal's order by the Divisional Court had no impact on the respondents' legal rights. At most, the respondents' success was minuscule compared to the appellants' success on all the other issues in the appeal” (emphasis added).

I give their names for the historical record and quote their words for anyone who wishes to actually look at the original decision and then compare it to what the learned Justices of Appeal concluded.

Somehow holding that he had not won anything of substance, and that GALA had, the Ontario Court of Appeal reversed the Divisional Court (who, after all, had heard the entire appeal and made the costs award in light of the merits and who won what) and ordered costs against Mr. Brockie. Letterhead? Business cards? Wow-ee!

Mr. Brockie estimates that the costs against him will be in the region of $40,000 when all the dust settles.

Should ordinary citizens be concerned about what the Ontario Court of Appeal Justices have done? Yes, and here is why.

When the Ontario Human Rights Commission has a major aspect of its Order struck down by the Divisional Court, it cannot be considered, on any fair reading, “a slight change” or “miniscule.” The remedy of the manifestly inferior tribunal was overbroad and was struck down. End of story. The Ontario Court of Appeal panel’s one page endorsement on costs is strange to say the least - - some might say perverse.

What did GALA and the other parties win? The right to have “ordinary business materials” printed. Yawn. The reason that the result of Mr. Brockie’s original victory was not splattered all over the front pages of the newspapers was that the same-sex advocates lost at the Divisional Court on what all of us in the courtroom knew to be the major issues.

So how did the Ontario Court of Appeal somehow find that GALA had won the most significant aspects of the decision? Your guess is as good as mine.

Quite beyond the logic and legal validity of the Ontario Court decision is the wider question of whether such an award of costs as this is just? First of all, in this case Mr. Brockie did not have the benefit of the Court Challenge Program funding his litigation (as do many of those who seek, in the rhetoric of the day “to advance equality cases”).

Religious believers in the courts today are, in case after case, fighting well-funded individuals or associations - - well funded that is, by the Federal Government’s “Court Challenges Program.” As such, religious people or groups, who do not get funding for their defenses when challenged, are disadvantaged - - fighting what UBC Professor Graham Good in his important book Humanism Betrayed (McGill/Queens, 2001) has called “the new sectarianism” of race, gender and sexual orientation.

The new sectarianism, however, has control of funding and the rhetoric of its own skewed concept of equality (one based upon “trump rights”) in Canada today so what happens with costs is of great interest to those who wish to resist the massive intellectual (and sometimes legally assisted) frog-marching that is underway from coast to coast in this country.

Despite winning the most important aspects of the case (striking down the aspect of the remedy of most concern to citizens - - that he publish “any other materials” that GALA or groups like it bring to his print-shop) and getting established that his religious rights are public rights not just for the private or in Church, both of which he won in this case, Mr. Brockie gets costs awarded against him.

This is the new sectarianism of “sexual orientation” cases. Having had partial success and vindication the courts when they do this sort of thing punish the litigants by awarding costs that could be crippling and chill the future exercises by politically incorrect citizens in defense of their legal rights.

The use and abuse of awards of legal costs is significant because it can punish those who are least able to afford them and reward those (the Ontario Human Rights Commission, the Lesbian and Gay Archives) who are institutionally much more capable of covering the costs much less being rewarded for their acts - - acts which went well beyond the acceptable jurisdiction of the tribunal and called for judicial restriction on appeal.

This all raises another point of interest. Does the Court take into account (or even know) whether the Court Challenges Program is funding a particular case? Since the Fund gives even the skimpiest of legal clothing “deep pockets” perhaps it would be only fair if the court were going to make a sensible judgment in cases of this sort, for that information to be presented to the courts as part of the submissions as to costs? That would only seem fair.

We at the Centre see it as an important aspect for our society as a whole when an unfair award of costs against personal litigants poses a danger to our society.
When, as the saying goes, success is divided and some merit to the case has been established, there should not be costs awarded for or against the personal litigants since they have been justified in going to law even if their victories were not total.

Where, as in the Brockie decision, the Court narrows an overbroad remedy, the individual litigant should, as a matter of course, get redress from the State actor. To have a significant legal victory diminished by the Court of Appeal in a blatant mis-description of what the lower court actually said is a bizarre result quite apart from the cost implications.

We are told that Mr. Brockie has established a Defence Fund in an effort to raise funds to pay the costs that have been awarded against him. Many people will wish him well as he continues to challenge the Zeitgeist against the odds.

Iain T. Benson©

Monday, May 10, 2004

Dalai Lama and “Secular Ethics”

The Dalai Lama came to Vancouver recently with a few other famous people (April 18 – 20th, 2004) to receive doctorates, give a spiritual teaching and participate in a Dialogue about the head and the heart. He was lauded, celebrated, feted and, in some cases, or so it appeared, worshipped. The occasional journalist who did not “get it” even gently criticized him.

What was there to “get” about the Dalai Lama? Anglican Bishop Desmond Tutu, also there to receive honorary doctorates from Simon Fraser University and the University of British Columbia, in his introduction to the Sunday afternoon presentation on “Universal Responsibility,” likened the Dalai Lama to Mother Teresa and said that, like her, the reason for their appeal was that they are “good.” Apparently the two Nobel Laureates like each other very much and their mutual regard and good will appeared genuine and joyful. At one point, the Dalai Lama referred to Bishop Tutu as his “spiritual teacher” and their regard for each other was heart-warming and produced many good-hearted exchanges during the afternoon.

Only a hardened cynic or the religious zealots outside the Pacific Coliseum could have rejected the honest openness that was clearly on display on stage. One jarring note was a couple of loud-mouthed people outside the event who claimed to be Christians but whose profession of certain knowledge that the Dalai Lama was going to hell and that Buddha is already in Hell, rather cast doubt on everything else they yelled. If it is true that “you will know they are Christians by their love” then perhaps they represented something else entirely. One can hope.

Thankfully, inside the Coliseum, Bishop Tutu did not share their certain, and purportedly “Divine” judgments, and used his presence on both occasions to be a shining example of the Love of God in which he believes. He seems to operate by the motto: “have sermons, will travel.”

At both of the events I attended, the afternoon discussion about “Universal Responsibility” (at the Pacific Coliseum) and the Round Table Dialogue, two days later at the University of British Columbia, called “Balancing Educating the Mind with Educating the Heart” there was the same aura of goodwill and even happiness and, at both events, Bishop Tutu preached. What he said was a sharp counterblast to the Dalai Lama’s atheistic Aristotelianism.

Goldie Hawn (the celebrity Hollywood figure) was there at both events as well and the press in attendance took many photos of her. Also in evidence were the former Chief Justice of British Columbia and many leading academics and civic leaders. Tickets for all the events sold out faster than even those for the Rolling Stones’ concerts that periodically entertain Vancouverites.

The Dalai Lama speaks of compassion and the longing that human beings have for happiness. He also speaks of the need for wisdom and a fully reflective human life. Much of what he says, simple though it seems to be, is needed in today’s world and his obvious popularity speaks to a longing in contemporary societies and the receptiveness some people have to the message of love and compassion when it is delivered free from much of the religious trappings that have alienated so many from contemporary religions.

There was one area, however, in which his theories seem to betray the hope he has to create a better world. At both events I attended, His Holiness indicated that “because religions do not agree” we need to develop what he called “secular ethics.”

Obviously, this is a serious error. Whether it is rooted in the Dalai Lama’s translating from the Tibetan (he has an excellent translator but perhaps they have not yet figured out that to use the word “secular,” after excluding religions, guarantees that anti-religion will dominate his “secular ethics”) or in something else, I cannot say. Neither could several of the organizers with whom I spoke. His call for “secular” ethics, will never work until he includes religions in the important task of finding a “shared” or “common” ethics.

To exclude preemptively “religions” from the task of developing “shared ethics” for the modern world is like trying to develop the art of skydiving by starting off banning parachutes. Many could miss the gravity of the situation and it leads to a grave result.

Religions provide the stuff of ethics for most people since ethics are based on the way we understand “right” and “wrong.” While it is true that certain religions disagree about this or that aspect of right and wrong, a reading of many works in this area (such as C.S. Lewis’ The Abolition of Man) would give him a better grasp of why religions in fact contribute in basic ways to the development of the very ethics he supports and the fact that, on many key areas, they agree. “Secular ethics” just don’t cut it and his continual references to the term undermine his own project.

He plays into the hands of the deliberate theory of “secularism” and seems not to be aware of this.

For example, how could Christians participate in furthering “compassion” in the world if they are to jettison their religious understanding of the root of compassion in Jesus Christ? How are Jews to participate if their central religious understandings are excluded at the outset? They cannot and the Dalai Lama’s theory is fatally flawed when he himself attempts to do so. Only by finding common principles within human belief systems (including the religions) can humans move towards the principles that can guide our lives together.

The relationship of suffering to wisdom and enlightenment is important to the Dalai Lama: it is also key to the understanding of religions and if the quest for “secular ethics” is to exclude what for many people is best understood in terms of their religious faiths, they will not be able to participate. If they cannot participate, and religious people make up the vast majority of the world’s population, then there is no possibility of moving towards a Universal Ethic or Universal Compassion or a Universal anything that is worthwhile.

The fact of the Dalai Lama’s rather surprising anti-religious views, might explain why, at the Roundtable, speaking after the Dalai Lama, Bishop Tutu chose to give a retelling about the Prodigal Son and ended with the plea that “God loves us all and is pleading with us to come back to Him…. to come back to His Love.”

As a side point it is curious to note that no Roman Catholics were invited to be part of the program - - a program which, after all, involved a female Professor who is a native Indian, a female Muslim Judge from Iran (another Nobel Prize-winner), a Jewish Rabbi, the Dalai Lama and Bishop Tutu but which was chaired by another local Anglican Bishop (one who, unlike the Dalai Lama as a matter of fact, accepts same-sex conduct as religiously valid).

In the final analysis the other round-table participants, and most notably, Bishop Tutu, paid no attention to a religiously exclusive “secular ethics” and neither should we, except to beware of its emergence, reject it and work towards something better and richer in the future.

Iain T. Benson©