Tuesday, February 22, 2005

Canada: Love it or Leave it!

I’ve been wondering around southern Ontario this past week. First, some lectures at Wilfred Laurier University (on “secularism”) and then meetings with various folks in Toronto. What is interesting is that amongst the lawyers I have known - - some of them for over 20 years, there is a deepening anxiety about what we could call the legal culture of Canada. This concern is shared from coast to coast in Canada.

Most of my friends no longer believe that the law is functioning as the law should. They believe that the law has ambitions beyond itself. Law is becoming the means of bringing about the just society. The smarter the lawyer, the more they recognize this as something well beyond what the law should do or seek to be.

Judges in recent years, and their back-up singers, the academics and lawyers who maintain the plausibility structure of the existing system, have said that the relationship between the courts and the legislature is a “dialogue.” Fine then; they must support Section 33 - - the notwithstanding clause - - which allows a government to overrule (for a limited time) the decisions of the courts.

For only this would maintain a “dialogue” of “back and forth.”

Surprise! Many of those who view law as the means of maintaining social ordering and bringing about “the just society” do not want “dialogue” - - they want a monologue and the court shall tell us what should be.

Canada. Love it or leave it; or, better yet, try and change it.

Iain T. Benson ©

Separation of Church and State

The so-called “wall of separation” between the State and religions is one of the most misunderstood metaphors in recent history.

Recently I received an email from the American based Alliance Defence Fund - - a legal fund-raising and strategy group involved in religious liberty cases. The email quoted an Attorney affiliated with the ADF in relation to a case involving the freedom of religion. The case had been victorious. My concern wasn’t with the result of the case - - favourable for religious people, but with the comments of the Attorney.

He is quoted as saying “…. we celebrate the removal of yet another brick in the wall of separation between Church and State.” Really? Should there be no wall between the two?

I think there should be a wall - - but one with clearly marked and regularly used doorways in it. Cooperation between Religion and the State is essential; strict separation - - meaning “no cooperation” is simply anti-religion by another name.

The separation of Church and State, properly understood, is a good and necessary thing.

Wrongly understood, the “separation” amounts to a secularistic attack on religion since it hides an agenda to remove religion from any public relevance. That kind of “separation” is unjust and a thing to be resisted by every possible means.

Rightly understood, however, the separation of Church and State should be embraced. The key, therefore, is to understand what is a proper understanding.

Basically it is this: the State should not run religions and religions should not run the State. That is all that the Separation of Church and State should mean.

The legal beagle above, however, shows the worrying tendency to use the State to advance the purposes of religions - - just like Calvin’s Geneva, the Taliban and the Catholic Church before it wised-up and developed a deeper understanding of the proper relationship between Caesar and God.

In a coin toss between Caesar and God who gets to shout “heads?”

That is the question. But the answer is certainly not any simplistic abolition of a wall that is necessary but needs to be properly “understood.”

Iain T. Benson ©

Wednesday, February 09, 2005

Continuing Significance of Ash Wednesday

Today is Ash Wednesday. This is the day that, from about the 4th Century, has been recognized as the beginning of the forty days of fasting and privations that Christians refer to as Lent. This leads up to Passion Week (you've seen the movie now read the book) and Easter. The whole period is still of deep significance for many Christians.

Fasting, the voluntary cutting off or reduction of food, for the sake of spiritual benefit, is part of the cycle of feast and fast that undergirds the historical understanding of Christianity. Easter, the celebration to which Lent builds, is about the Resurrection of Jesus Christ and is, essentially, a celebration of triumph (God's and ours through Christ) over sin. But that is later.

Ash Wednesday in the liturgy (the daily and seasonal order of Church services) of the Catholic, Anglican and Eastern Churches (and a few Protestant Churches keep to a liturgical ritual as well) involves the "imposition of ashes" and reflection upon ones' sins.

During the Mass for Ash Wednesday the congregation goes forward and has the sign of the cross made in ashes on the forehead while the Priest calls us to consider the fragility of our lives and the need to acknowledge our sins. In the beautiful Latin the Priest would say: memento homo quia pulvis es et in pulverem reverteris ("remember Man that thou art dust and unto dust thou shalt return"). This, of course, recalls the words of the funeral service itself: "ashes to ashes, dust to dust."

The ashes for the Ash Wednesday service come from the Palms of Palm Sunday before Easter where we recall the welcome of Jesus into Jerusalem and the crowds placing palms beneath him while they acclaimed him. Shortly thereafter, of course, the acclaim turned to denunciation and crucifixion so the burnt palms becoming the ashes for Ash Wednesday are, themselves, full of meaning.

There is no more beautiful set of interlocked understandings of the cycle of human life, longing, failure, suffering and redemption than are captured in the Christian liturgy. This is part of the reason why so much great art (painting, music, sculpture, poetry, literature) have been and continue to be inspired by these cycles and the stories they contain.

When we have lost the stories of this Christian cycle we have lost much of the deepest and most meaningful aspects of our own history. Watching young people examining paintings in major art galleries where they can no longer identify the most basic of Christian stories (such as the beheading of John the Baptist) shows how much is lost by what is not learnt because it is no longer told. There is much to be gained in the contemplation of all aspects of these ceremonies, by all ages of people no matter what their condition of mind or heart.

Some years ago, at Queens, one of my finest Professors, A.C. Hamilton, told me that one of the great problems with students (and this was almost twenty five years ago) was that they "no longer knew the bible." It was inconceivable to him that one could understand the great works of Western literature without the bible as background.

As a digression, that has nothing to do with the overall theme of this short piece, but is marginally related to it, I'd like to relate an incident that happened a few years ago, when we were in Lourdes, France. One of our young children, at the end of the Mass for Ash Wednesday, looked up and asked "Daddy, why do black people get white ashes and white people get black ashes." In all the years of attending Masses on this day I had never noticed what to this five year old was as obvious as it now is to me. We sometimes don't see things the way we later come to see them.

I remember, years before my wife and I were received into the Roman Catholic Church, how a few people would show up suddenly at the office one day after lunch with smudges on their foreheads. I knew then that it was vaguely connected with something at their Church. When the smudge was pointed out to them, they would quietly say it was connected with Ash Wednesday or even, on occasion, reach up a tentative hand to rub off the offending stain they had forgotten to remove on leaving the Church.

Thinking about this day and its significance today, however, it seems that another aspect of the passing of general social awareness of Christianity, is important to note. Many Christians have lost a sense of their own history - Ash Wednesday being a part of that. For all these things were aids to living out the Christian faith. Lent, sacrifice and fasting, urged us, along with confession, to see ourselves truly - - to do what is still called "an examination of conscience" and then move ahead, with God's help, to lead improved lives. The question is this.

What is the replacement offered by the contemporary world to these Christian insights? Other religions, of course, maintain their own feasts and fasts and conceptions of sin and wrongdoing and how to overcome them. But what of the brave new world we inhabit?

The 1970's gave us a film, starring Ali McGraw and Ryan O?Neal - - "Love Story", which became a kind of motif for a generation. One of the lines of that film, which has itself become famous, is "love means never having to say you are sorry." This is, of course, about as wrong as anything could be. Our generations have not only lost the richest stories, we have, all too often, replaced them with erroneous confusions.

Ash Wednesday, and the deepest meaning of it, recognizes that love is all about "saying sorry" so that we can learn, in fact, what love is. We can never properly feast if we do not learn how to fast and it is good that there are days set aside for reflections upon ashes.

Iain T. Benson ©

Thursday, February 03, 2005

Section 33 Dangerous to Charter?
Letter to the Editor, National Post

Dear Sir/Madam:

So Andrew Coyne sees Section 33 as dangerous to the Charter? Far from being "a constitutional hypocrisy, a perpetual invitation to mischief, a dagger pointed at the Charter's heart" it is the only thing that will preserve the very democracy and rule of law that Section 1 of the Charter sees as fundamental to Canada. With no check on the all too clear social engineering ambitions of this current Court (and the law professors who support the current approaches) the Charter and the rights within it are endangered more by rampant judicial activism than they ever would be by misuse of Section 33.

That Section allows for civil debate and puts a government of the day on the electoral chopping block since any declaration is time-limited. But it also serves as the only check on an over-weaning judiciary.

"Who governs?" is a key question and getting rid of Section 33 puts power ultimately only into the hands of unelected and largely unaccountable judges. I'd rather have messy public debate in relation to Section 33 declarations than the smug silence accompanying judicial fiat.


Iain T. Benson
Barrister & Solicitor, Executive Director, Centre for Cultural Renewal, Ottawa

Iain T. Benson ©

Wednesday, February 02, 2005

Charter Section 33 and the Law Professors

For those who are not aware of it, a rather interesting exchange occurred this past week in the pages of that opinion leading journal of the hermetically sealed echo chamber of Canadian journalism (the words are Conrad Black’s) - - the Globe and Mail.

It took the form of a letter signed by about a hundred law professors (they go around in large schools called Universities) telling Stephen Harper that his approach to the marriage issue was wrong - - dangerously wrong.

Their beef (for none of them are really vegetarians) was that Mr. Harper’s plan to go ahead and actually pass a law saying that marriage should be between a man and a woman (and only one of each) was unconstitutional unless he used Section 33 along with it! They said he was playing politics with the Court if he forced a barefaced heterosexual marriage law back to them for determination without that Section 33 declaration. Just what was all this about? A bit of history might be helpful to unravel this.

The Supreme Court of Canada, it will be recalled, refused to answer the fourth question in the Marriage Reference. That was the question about whether a heterosexual definition of marriage could be constitutional. This question was added to the Marriage Reference by Prime Minister Martin after he and his new Justice Minister, Irwin Cotler, took over the controls when the outgoing Prime Minister and his Minister of Justice had vacated them.

The outgoing Prime Minister was content not to ask whether heterosexual marriage could be constitutional and sought the Court’s opinion on a narrower range of questions. Basically the other three questions boiled down to one question on marriage itself: is same-sex marriage constitutionally valid?

By not asking any other questions, the original “Reference” basically sought to get the Court to give its good judge-keeping seal of approval to same-sex marriage. It was all very cute and well packaged. Too cute by half.

So, in a show of actually seeking judicial analysis, Martin/Cotler added a question. The proverbs then hit the fan. “How dare they?” shouted the activists and their lawyers and their several hundred law professor supporters. “How dare they ask about heterosexual marriage when WE know that such a concept makes dodos look lively?”

In any case, the question went ahead.

The Supreme Court, meanwhile, decided that it did not want to answer this question. Why not? Ah, there you have it.

They decided they did not want to answer the question because the Federal Government had said that it planned to go ahead and introduce same-sex marriage legislation “regardless of what the Court said anyway”.

Sorry? Wasn’t the Federal Government asking the Court the question about whether heterosexual marriage was constitutionally valid? You bet they were.

So, if they (the Feds) knew they were not going to pay attention to what the Court said about heterosexual marriage, why did they even ask the question? Here one needs to consult an Ouija board for proper and full analysis. Failing that, perhaps there is a more obvious answer. Optics. They wanted it to appear as if they cared about what the Court said about heterosexual marriage without actually caring.

Well, now we get to the nub of the matter. The Supreme Court decided that it did not want to answer that fourth question and, for whatever reason, did not do so.

So. The Supreme Court of Canada, though asked to give its opinion on whether a heterosexual marriage only definition of marriage could be constitutional did not give its opinion.

Now there are two kinds of politicians: those who have ideas and want to stand by them and those who have ideas and want to do everything possible not to be seen to have them. This second kind of politician, sadly, outnumbers the other kind several times to one.

The Federal government bravely refused to appeal lower court decisions in British Columbia and Ontario that had determined that the common law recognition of marriage as between one man and one woman (and one only) were unconstitutional. When one says “bravely” here one says it with heavy irony. For it exhibited bravery like cowardice, like common sense resembles stupidity or like responsible government resembles loony anarchy.

In short, the Federal Department of Justice and the Federal government have been playing games with the Canadian people to ensure the bringing about of same-sex marriage no matter what. But soft: they had to do it while appearing to be responsible governors. Hence the dropping of appeals, the stating of “cooked” and inadequate questions, the posing of questions while at the same time stating that the answers to the questions were irrelevant and so on.

One needs a 3D map to follow the duplicity of the current regime.

This brings us to the law professors’ letter in the Globe and Mail.

These law Professors are no fans of the notwithstanding clause. They are huge fans of the court and its new role of social planner. Their motto is this: “Every day in every way Canada is getting fairer and fairer and it is the role of the Court to make it happen.” That is the mantra of what Professor Morton and Professor Knopff call “The Court Party”.

They view, after all, the Court as an unelected but dominant “party” that can, in fact, rule the roost. Section 33, which allows a determination of Parliament to stand “notwithstanding” a ruling of the Court, is a major worry to the Court Party because it makes Court decisions susceptible to, horrors, the demos! Those dirty uneducated, bigoted and foul people we are surrounded by……they, THEY, have the capacity to thwart the Great Move Forward, the march towards peace order and good government represented not by government but by what the Court decides and the elite supports.

Into all this, Stephen Harper comes along with the suggestion, like that of the small boy who once commented upon an Emperor’s nakedness and says “the Court has not ruled on heterosexual marriage”. Silence.

It is true. But in their wildest dreams the Court and the Government and the Law Profs, did not think that anyone would DARE to go ahead with heterosexual marriage without declaring a Section 33 over-ride. Let me explain.

The Court Party dislikes Section 33 because it gives the hated masses the chance to disagree. It gives to the political process the chance to say to judges “butt out, this is a question for democracy”. Because, when one comes down to it, the new rights theorists are elitist and anti-democratic. They fear the tyranny of the majority so much that they want to institute a tyranny of the minority.

People who dislike Section 33 would like to blame it for anything they disagree with. They want an opportunity to deflect the analysis from an issue. They want to blame Section 33 as being the reason that same-sex marriage is not going ahead. They do not want, they positively fear, the Court being put in a position to say that heterosexual marriage is unconstitutional. Why?

Because they (the Law Profs, the pundits, certain kinds of politicians and judges) have been quite happy playing a vast game of “hide the issue under the Charter”. Most of the things that have been hidden in the Charter simply are not there. The Charter is used as a plausible rationale for the changes they wish to bring about. It is a matter of appearances.

The Charter says nothing about “sexual orientation”. It was added by judicial fiat in the mid 1990’s (after being expressly excluded when the Charter was formed in the early 1980’s). The whole “same-sex marriage” issue is based upon this basic sleight of gavel.

What Harper’s plan would do would be to propose a law without the Section 33 declaration thereby forcing the judges to bare-facedly declare that heterosexual marriage is unconstitutional and that they do not want to do. Why?

Because they want to appear to be finding rights in the Charter and they do not want to be seen to be barefacedly ruling that heterosexual marriage is as dead as a Dodo, they want to be able to hide behind Section 33 so that, in a sense, it can take the blame. That is why those who don’t like Section 33, such as Andrew Coyne of the National Post, say that it poses a threat to the Charter. Nonsense.

If the Harper proposal of bringing in a heterosexual marriage law without a Section 33 declaration goes ahead, then the Court will be declaring that heterosexual marriage is unconstitutional. This will create a major public backlash and the credibility of the Court will be damaged. This is what the “Court party” fears. The whole legitimacy of using law as social engineering may be imperilled. That is what is at issue and why the law professors, all 100 or so of them, squawked in such startling and poetical unison.

Section 33 gives a chance to keep the majority on its toes. It gives the populace a chance to debate things that some unelected judges and their activist backers would like to see decided under the guise of law in ways that cannot be changed.

That is why, at the end of the day, Section 33 is one of the best things that ever happened in Canada for the legitimacy of the Charter of Rights and Freedoms; why it is one of the best things that ever happened to Canadian social debates and why, the elitists who, in reality, hate and fear democracy want to see it abolished.

Watch for it. Increasingly in the next months and years we will all witness growing vehemence against Section 33. It is not an exaggeration to say that the future of Canadian freedom depends upon the ability of Canadians to maintain that Section against those who would give complete control of the country to some unelected and unaccountable judges. When law returns to the rails of the rule of law from the wilderness of the rule by law, then, and only then would Section 33 be unnecessary, but in the current climate, it is absolutely essential.

Iain T. Benson ©

A Jew defends the cross

[NOTE: Occasionally, we come across a piece of such excellent good sense and importance that we seek permission to include it with our own materials. We thank the author for his permission to republish this article here. IB]

Here is a description of the seal of Los Angeles County.

There are six small panels, three going up and down each side of the seal's central figure.
Top left: engineering instruments.
Middle left: a Spanish galleon.
Bottom left: a tuna representing the fishing industry.
Top right: oil derricks.
Middle right: the Hollywood Bowl, along with two stars representing the movie industry and one small cross.
Bottom right: a prize cow.
The central figure, the largest object on the seal: Pomona, the Roman goddess of gardens and fruit trees.

Anything disturb you enough to demand that the seal be redesigned?

Probably not. For the overwhelming majority of millions of citizens of Los Angeles County over the past 50 years, this seal has aroused no opposition. But a few months ago, someone with a magnifying glass at the American Civil Liberties Union discovered that the smallest item on the seal was a cross. And in its aim to expunge any trace of Christianity and God from American public life, the ACLU brought this fact to the attention of the five Los Angeles County supervisors. The three liberals on the board were equally horrified, and voted within days to erase the cross and redesign the seal, which now depicts a building with no Christian symbol in place of the cross.

When I learned of the impending vote of the county supervisors, I asked Los Angeles listeners to my national radio show to join me in a protest at this rewriting of Los Angeles County history. Which is what it was -- in the official words of the county, the cross represented "the influence of the church and the missions of California." Los Angeles was founded by Catholics who also gave the county its Christian name.

About 2,000 people showed up on a workday morning, many of them non-Christians, including atheists, Buddhists, and a fair number of Jews, including non-Orthodox Jews and Orthodox Jews wearing yarmulkes. It was probably the first time in history that Jews have banded to protect the Christian cross. It is an achievement of which the ACLU should be proud. Its devotion to secularizing what has always been a Judeo-Christian society is helping to unite Judeo and Christian as nothing ever before has.

The ACLU and its three allies -- Supervisors Gloria Molina, Yvonne Brathwaite Burke, and Zev Yaroslavsky -- probably did not know what a whirlwind they would stir among the majority of people living in Los Angeles County, whatever their race, ethnicity or religion. Like most people on the Left, they dismissed opposition to erasing God and Christianity from the public square as the work of a fanatical fringe of Christians. Perhaps the recent presidential election is beginning to make them aware that at least statistically speaking, it is they, the aggressively secular, who are the fringe group.

I am asked why, as a Jew, I have led this fight to keep the cross on the county seal.

I have three responses.

First, I fear those who rewrite history.

As I noted in a previous column on this subject, when I was a graduate student at Columbia University's Russian Institute, I learned that a major characteristic of totalitarian regimes is their rewriting of history. As a famous Soviet dissident joke put it: "In the Soviet Union, the future is known; it's the past which is always changing." Given the relationship between changing the past and totalitarianism, those who love liberty ought to be frightened by the ACLU and the Board of Supervisors.

Second, I fear intolerance. And the move to expunge the singular Christian contribution to an American county and city is intolerant to the point of bigotry. No religious Christians, despite their deep opposition to paganism, ever objected to the pagan goddess that is many times larger than the cross. I have found over and over that most Christians who preach faith are more tolerant than most leftists who preach tolerance.

Third, and most important, I fear the removal of the Judeo-Christian foundation of our society. This is the real battle of our time, indeed the civil war of our time. The Left wants America to become secular like Western Europe, not remain the Judeo-Christian country it has always been. But unlike the Left, I do not admire France and Belgium and Sweden. And that is what the battle over the seal of America's most populous county is ultimately about. It is not about separation of church and state. It is about separation of a county from its history. And it is about separation of America from its moral foundations.

In 1834, 99 years before Adolf Hitler and the Nazis came to power, the great German poet Heinrich Heine, a secular Jew, predicted what would happen if Christianity ever weakened in Germany:

A drama will be enacted in Germany compared to which the French Revolution will seem like a harmless walk in the park. Christianity restrained the marshal ardor of the Germans for a time, but it did not destroy it; once the restraining guard is shattered, savagery will rise again . . . the mad fury of the berserk of which Nordic poets sing and speak.

That is what this American, this Jew, and millions of others believe is at stake in the Left's attempt to impose a redesign of the Los Angeles County seal and thereby redesign America.


Dennis Prager ©
Originally Published November 16, 2004.
Reprinted with permission.