Friday, April 15, 2005

Why Courts Should not be Limiting “Sacred Spaces”

For some time now those concerned with increasing challenges to religious institutions have predicted that same-sex activists would eventually attack the basic right of religious people to determine and practice in accordance with their beliefs as to what conduct is moral or not according to their religious tenets.

These attacks have been underway now in Canada for some years and recent events suggest that they are increasing in aggressiveness.

According to the decision in Big M Drug Mart [1985] 18 D.L.R. (4th) 321, the freedom of religion is a set of public rights to “manifest” “teach” and “disseminate” ones’ beliefs not simply a right (as the Ontario Human Rights Commission lawyers and counsel for EGALE argued in the Brockie case for example) to hold the beliefs in private or in Church.

That Scott Brockie succeeded on this point in his appeal to the Ontario Divisional Court (religious freedom is not simply private) is often overlooked. It should not be.

In general the same-sex activists view their own moral positions as the only right moral positions and their various campaigns and strategies have been to attack those who disagree with them. That is the essence of the debate and why the limitation to the scope of “sacred space” is so important.

In general it is fair to say that many homosexual and lesbians (not to mention bi-sexuals, transsexuals, two-spirited and whatever other categories have been recently added) believe that their own conceptions of morality ought to govern everyone else. For this reason they seek “recognition”, “visibility” and the righting of “historical disadvantage” and “stereotyping.” Nobody ought to criticize any attempt to right genuine cases of injustice against anyone else; gays and lesbians and other citizens included.

It is the way that the sexual revolutionaries seek such things as “recognition” however that makes their claims the enemy of fairness, equality, proper tolerance, freedom and proper democracy. This is because they seek dominance rather than equality. That the claims to achieve inequality use the language of “equality” is just another irony of the times.

That is why, rather than support a genuinely neutral “non-marital civil unions” category that gets the State out of marriage, the mainstream gay and lesbian movement wants to play “king of the castle” and obtain the main definition. Religions can then be “exceptions”, they can be “tolerated” to be discriminators but the grounds of their discriminatory viewpoints will be carefully monitored and relentlessly challenged to ensure that they become increasingly irrelevant.

Sadly, now that it is clear (it is isn’t it?) that maintaining a heterosexual only conception of marriage in the public realm is impossible in Canada (for reasons we have written about elsewhere) many religious people still think they can win a game of “king of the castle.” They cannot. They cannot get a constitutional exemption (the numbers aren’t there) and they cannot get a Section 33 declaration (the political will is not there).

The tactics of the “save marriage” movements have failed and unless they have some new strategy, will continue to fail. Now that the new constitutional norm has, by hook or by crook (mostly by crook) become a “gay marriage inclusive norm” it is simply a question now of staying tuned for the challenge to religious tax exempt status, religiously favourable (traditional religion that is) charitable groups and so on.

I suppose one cannot blame them given that the religious conception dominated the hill for so long but then, the religious conceptions formed most aspects of the culture in which all of us have been raised (healthcare, education and so on were all religiously formed originally). Religions did, eventually, have to learn the proper role for religions in a pluralistic society. There is no sign that the new same-sex fundamentalists have learned the same lessons.

Like any fundamentalists who with their own beliefs to be the norm, same-sex activists have to learn the kind of proper tolerance that must replace the pseudo-tolerance of dominance.

It has long been recognized, for example, that most traditional religions think same-sex conduct anathema (the word in Greek means “a thing accursed”). This does not mean that people who do the thing that is anathema are themselves accursed. Most religions leave judgment up to God in any ultimate sense. The idea of “hating the sin but loving the sinner” is a vast development from burning the sinner at the stake.

Stake lovers are, alas, still with us, even in these vegetarian times, and it is always the task of those who understand the scope of proper rather than pseudo diversity, to educate the less enlightened. What is interesting now is that with the shoe on the other foot, it appears as if the new fundamentalists will be quite ruthless in trying to kick the door shut on the public sphere so as to shut down the places of dissent.

Needless to say, people do not like to think that something they like very much could be considered “accursed.” But we are adults. We do not have to have everyone agree with us since we know that when things hurt our feelings, this is all part of life.

Only infants scream and kick up a fuss about things that hurt their feelings. Sadly, there are many adults masquerading as infants these days. One sign of infancy is to try and force everyone else agree with you when it is clear they do not. The way this works for infants is, when they fail to make another agree, to go and get big brother or Mummy or Daddy to force the other person (usually another infant) to agree.

Nowadays the courts have taken on the role of big brother, Mom and Dad.

For this reason traditional religions have intervened in many court cases - - most recently the same-sex marriage cases, seeking to ensure that they would not be forced to do what they considered “against their religion” by the uber parent that sees itself charged with protecting everybody’s feelings.

In the recent Marriage Reference decision, for example, many religious groups were represented and the Supreme Court addressed their concerns directly. The court, in a very short and unanimous decision (the really difficult cases in Canada get this kind of treatment - - see the Tremblay v. Daigle case which was also unanimous and “by the court” when the Supreme Court of Canada decided that a viable foetus had no status in Canadian law).

After dismissing the concerns of religious communities about the effects a new constitutional norm could have on civil society as merely speculative the Court said this about religious officials refusing to marry same-sex couples:

The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one's choice, the right to declare one's religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336- 337. The performance of religious rites is a fundamental aspect of religious practice. It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.

Reference re Same Sex Marriage, [2004] S.C.J. No. 75 para 57 and 58 (underlining added).

An important fact needs to be considered here however. As the Supreme Court noted, the Federal Government has no constitutional authority to regulate the solemnization of marriage, this is a provincial jurisdiction. Therefore it would be up to the provincial governments to pass legislation that would protect the rights of religious officials to not perform same sex marriages should this be contrary to their beliefs.

The Supreme Court also noted that the provincial human rights commissions should interpret their human rights codes in such a way as to provide protection for religious freedom in this regard. Various religious groups have expressed concern that provincial legislation either does not protect religious communities sufficiently or that such human rights legislation needs to make express recognition of religious freedom in relation to marriage. Recent developments in British Columbia and Alberta suggest that these concerns are warranted.

Recently in BC, a lesbian couple, that were refused use of a Knights of Columbus (Catholic) Hall for their wedding reception, have decided to take the K of C to the Human Rights Commission in that province. In light with what is discussed above, this is an infantile reaction. Instead of realizing that they were, in effect, requiring Jews to eat pork, they should simply have got another hall. They want to treat this refusal like the refusal to serve black people at a diner. Not a good analogy. For the Knights of Columbus, as for any serious Catholics (those who follow the teaching authority of the Catholic Church), a gay marriage is an impossibility and the concept anathema.

What the challenge, and all such challenges, show, however, is that gay and lesbian activists want all citizens and all places to acknowledge their own sex practices.

It is as if Roman Catholics demanded that everyone acknowledge their own teachings about contraception in all places in society. “But their prescribing contraceptives hurts my FEELINGS they would wail…. wah, wah, wah.”

What used to be private (sexuality) is now a matter of public “pride.” Didn’t people realize this with the “Gay Pride Parades?” They will see it in future.

More recently, EGALE, the most sophisticated gay rights activist group in Canada (a look at their website shows how extensive is their work), filed a complaint against the Roman Catholic Bishop of Calgary for suggesting, in a Pastoral letter, that homosexuality posed a threat to marriage (along with, divorce and adultery by the way).

The question is: will Human Rights Commissions and Tribunals and the courts give a broad or narrow reading to “sacred spaces”? This depends on whether Human Rights and Courts view society as a nursery school playground or a place for adults.

Are we free to disagree respectfully as adults or are we going to have a tantrum and kick up a fuss at every disagreement? Time will tell but it does not look promising.

Iain T. Benson©