Tuesday, June 21, 2005

The Bishop, the Taxman and the Separation of Church and State

In the exchange that follows, from the Parliamentary Committee Hearings on Bill C-38, one of the quickest minds amongst Canadian politicians, Conservative M.P. Jason Kenney, takes up a point made by Bishop Fred Henry of Calgary who had testified that an official of Revenue Canada had phoned him. First, however, it would be a good idea to set out what Bishop Henry had said in his direct remarks.

Here is a selection of testimony from Bishop Henry:

I want to point to a growing spirit of intolerance in Canada and an inability to think critically.

First, on June 15, 2004, I received a harassing telephone call from Terry De March from Revenue Canada. His telephone number is 941-1647. He called as a result of a complaint lodged by someone objecting to another pastoral letter in which I attempted to clear up some moral confusion engendered by the Prime Minister. In much of the secular media, Mr. Martin was portrayed as a devout Catholic, even though his clarified positions re abortion and same-sex unions constituted a scandal within the Catholic community and reflected a fundamental moral incoherence.

Second, in my response to my January 2005 pastoral letter on the subject of same-sex unions, which was printed in the secular press, I received a number of messages that I would classify as hate mail. I'll give you one example, from Billy, who said, “You are a sick, narrow-minded, disgusting excuse for a human being. Child molesters like you deserve to die.”

Third, two individuals have recently filed a complaint against the Roman Catholic Diocese of Calgary and me on the grounds of sexual orientation discrimination in the area of services refused, in terms of goods and services, and in the area of publication notices, signs, and statements, based on my January 2005 pastoral letter in which I refuted the standard arguments used to support same-sex unions as the equivalent of traditional marriage.

These complaints are an attempt to intimidate and to silence me and are without any foundation in fact. As a matter of fact, the lodging of these complaints constitutes a violation of my rights of freedom of expression and freedom of religion guaranteed by the Charter of Rights and Freedoms.

The recent Supreme Court decision bows in the direction of religious freedom. However, it adds a disturbing qualifier to its decision, namely, the statement that, “Absent unique circumstances with respect to which the Court will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials...”.

When you read this carefully, you don't have to be a lawyer to recognize an open door. Particular circumstances might lead to some future court legitimately trying to force religious officials to perform these ceremonies against their conscience, though the justice system declined to speculate on what those circumstances might be. It's disquieting that the court would even raise the possibility.

Bill C-38 not only does not close the door; as a matter of fact, it fails in a number of particular ways to support religious freedom.

One, it fails to recognize, protect, and reaffirm marriage as the union of a man and a woman, which the Supreme Court of Canada did not suggest was contrary to the Charter of Rights and Freedoms, nor did it suggest that a redefinition of marriage was necessary to conform to the charter.

Two, it fails to affirm cooperation with the provincial and territorial governments to enact the necessary legislation and regulations to ensure full protection for freedom of conscience and religion so Canadians are not compelled to act contrary to their conscience and religion.

Three, it fails to affirm cooperation with the provincial and territorial governments to ensure all leaders and members of faith groups are free everywhere in Canada to teach and preach on marriage and also on homosexuality, as is consistent with their conscience and religion.

Four, it fails to affirm cooperation with provincial and territorial governments to ensure that in addition to sacred places, all facilities owned or rented by an organization that is identified with a particular faith group are protected from compulsory use and preparations for or celebrations related to marriage ceremonies contrary to that faith.

Five, it fails to affirm cooperation with provincial and territorial governments to ensure all civil as well as religious officials who witness marriages in Canada in every province and territory are protected from being compelled to assist when these are contrary to their conscience and religion.

Six, it fails to safeguard faith groups that do not accept the proposed redefinition of marriage from being penalized with respect to their charitable status.

In response, Bishop Henry was asked questions by various M.P.’s and, as already stated, one was fellow Albertan, the young and bright Jason Kenney. Here is that exchange.

Mr. Jason Kenney: Okay. I'd like to pass to Bishop Henry.
Bishop, you mentioned in your submission that you had received a call from a certain Terry De March from the Canada Customs and Revenue Agency. I believe that was in June of last year.

Most Rev. Fred Henry: Yes, it was.

Mr. Jason Kenney: Could you please describe for us that call and what preceded it?

Most Rev. Fred Henry: First of all, when you get a call from Revenue Canada, you start to shake in your boots, so it was one of those things that went to the top of the pile really quickly. I phoned him back the same day, I believe it was June 15, and he reminded me very forcefully from the beginning that I wasn't to engage in partisan politics, pointing out that my actions were in contravention of the Canada Elections Act and implying that my actions jeopardized my charitable tax status.

I pointed out to him that if he'd read the pastoral letter very carefully, I hadn't told anyone how to vote, that my letter was a pastoral one to the people of my diocese and was inserted in bulletins and read from the pulpit. It happened to be picked up by the media and reprinted, but I had simply been writing to clear up the moral confusion that was generated by the Prime Minister and the media. I asked him if pastoral letters were now outlawed; he refused to answer that particular question.

He then talked about perception and said that some people may perceive.... I said, I can't control the perceptions of all people in Canada, but I have to assume that they can think, and can think critically and evaluate, and surely to God they can understand that I'm not telling anybody how to vote here.

Then he said, well, are you going to take down the pastoral letter from your website? I said, no, why should I take it down from my website? He didn't answer that either. Then he said, are you planning on doing anything else? I said, I find that question very strange, but no, I'm not contemplating doing anything else. Then he said, I'm going to write a report for my superior; you may hear back from us again in the short term.

That was the end of the conversation. I assume that things didn't go the way he wanted. My interpretation was that he thought that Revenue Canada coming down and calling me to task would mean that I would beat my breast and say I was sorry and fold my tent and go away. When he found out that I wouldn't, and the conversation didn't go the way he wanted, he was upset. However, I think he felt that his purpose was served: I was warned, I was threatened. But since that time, I have heard nothing directly from him.

Mr. Jason Kenney: For the record, Bishop, you said you felt threatened by this call. How so?

Most Rev. Fred Henry: Yes, I did. Well, I think in the first instance it was clearly implied to me, and he suggested, that I had done something wrong, that I had contravened the Elections Act. I was familiar with the precepts and the content of that law, and I felt I was fully within my right as a bishop to teach my people and to clear up moral confusion.

Mr. Jason Kenney: Do you think he was implying that the charitable status of your diocese depended potentially on your conforming your religious expression to his interpretation of the charities act?

Most Rev. Fred Henry: Yes, is the short answer.

Mr. Jason Kenney: Bishop, clearly you're not somebody to fold your tent. If you were just a pastor of a small independent, perhaps a protestant, church and you received a similar call for something you had expressed to your congregation, and the financial stability of your church depended on that tax status, do you think you might have felt even more pressure in that kind of situation than you did as bishop of a large and fairly prosperous diocese?

Most Rev. Fred Henry: No question; several ministers have told me precisely that.

Mr. Jason Kenney: Do you know others who have received similar calls?

Most Rev. Fred Henry: No. Most of them have been intimidated. Based on what has happened to me and it becoming public, most of them are a little bit gun shy right now.

Following Mr. Kenney, M.P. Real Menard addressed the Bishop. Here is that exchange.

The Chair: We'll now go to Mr. Ménard for the Bloc Québécois.

Mr. Réal Ménard: Thank you.
I'm going to speak in French.
I'd like to begin by directing my comments to Monsignor Henry. I've heard a great deal about you. It's a pleasure to be able to discuss this bill in person with you. You have many staunch supporters among committee members. However, you would be wrong to count me among them.

Deep down, do you believe that Canada has a State religion? Earlier, you had some harsh words for the Prime Minister and for the Minister of Foreign Affairs. You're entitled, just like all Canadians are, regardless of their religious affiliation, to your opinions and to your views on men and women in public office. However, the debate on same-sex marriage and the position taken by Catholics demands at the outset that you state whether or not you believe Canada has a State religion and if so, whether you think some believers should enjoy a favoured position with the nation's lawmakers.

Most Rev. Fred Henry: Thank you. That's a good question.

Obviously, I don't think there is a state religion. Nor am I in favour of a theocracy, like they have in Iran. However, what has happened right now is that we have gone to the opposite pole. There is a stream of anti-religious bias within, I'm afraid, the halls of Parliament and in society in general. We don't exclude a Freudian psychiatrist and tell him to leave his Freudian traits outside when he enters into public debate. You don't tell a trade unionist to leave out his thinking. You don't tell a CIBC bank manager. I don't want to be told I can't participate because I happen to be a religious believer.

You'll notice that I have yet to quote sacred scripture in anything I've said today. I have been talking from the vantage point of a citizen who also happens to be a believer. I want to talk about reason. I want to talk about the state of affairs in our country. I want to talk about the nature of marriage. I'm quite prepared to bracket a religious text and teaching of the church for the purposes of discussion.

Mr. Réal Ménard: I have a second question, if you have no objections.

You realize full well that the bill now before us has nothing to do with religious marriage; it came about as a result of a consultative ruling which did not, admittedly, bind the government to a Supreme Court reference. It has nothing whatsoever to do with religious marriage.
Canada does not have an official State religion. For the sake of equality, do all governments not have an obligation to uphold equality by eliminating discrimination?

I have to admit that I'm having a bit of trouble following your argument this evening. You agree that there is no State religion in this country. However, if the government grants homosexuals the right to get married, this would, in your view, violate religious principles.
I can't quite get a handle on some aspects of your argument, because we're talking here about civil marriages, not religious marriages. No member of any specific religious community in Canada will be forced to marry homosexuals in a religious ceremony.

With all due respect, your argument smacks a little of religious interventionism. Are you not trying to impose your views on the lay community and on politicians? Politics cannot be driven by religious opinion or by some particular view of the world. Equality must be the primary consideration, as entrenched by various charters and human rights codes.

Putting it another way, if you consider marriage to be a civil right—and civil rights is the issue here—are you not appealing through your arguments to an audience that holds somewhat extreme views?

Most Rev. Fred Henry: No, I don't think I'm being excessive. If it makes you any more comfortable, I'll take my collar off. I'm just going to talk about marriage. I don't believe that religious and civil marriage are in opposition. What we're talking about is one fundamental reality, marriage as we know it, which pre-dates this country, this Constitution, and all of us. It's irrelevant whether or not I happen to be a religious person. All I want to talk about is marriage itself.

Now, I happen to be both a minister of the state, in terms of having a civil licence to perform marriages, and a religious minister. I'm quite prepared to reflect upon the nature of marriage itself. I don't have to keep talking about marriage as a sacrament. I'm a citizen here. As a citizen, I object to an attempt to reinvent a fundamental social institution of society in the manner in which we're proceeding right now.

Mr. Réal Ménard: If you're prepared to remove your collar, I'll remove my tie.

Most Rev. Fred Henry: We'll exchange. I'll give you my collar.

Mr. Réal Ménard: No, no. You don't understand.

Some hon. members: Oh, oh!

Most Rev. Fred Henry: No, it's interesting. You wouldn't take mine, but I'll take yours. I like your tie.

Mr. Réal Ménard: I am a secularist, don't forget.
Seriously though, you talk about the sanctity of marriage and about preserving and upholding the current interpretation of the institution of marriage.

Most Rev. Fred Henry: I haven't talked about that here.

Mr. Réal Ménard: However, you refer to marriage as a social institution, whereas that is not the case. Your position as a Catholic is not necessarily shared by other religions. You value marriage not as a social institution, but for its religious nature. If marriage is a social, and therefore lay, institution which must conform to the principle of equality, then it's our role to ensure that marriage is accessible to everyone. What connection do you draw between the religious nature and the social nature of marriage?

Most Rev. Fred Henry: Well, I think it's a natural fit. First of all, we're starting with nature and natural law. We're talking about a fundamental institution that serves two purposes. One, it involves the gender complementarity of the participants in this union. Second, there's a procreative dimension or an openness to new life. That I understand to be fundamental, and so far, I haven't used any religious terminology whatsoever.

As a religious person, I would add an overlay to that particular reality and call it a sacramental union in virtue of it being a situation, any bond, that is sanctified by God himself. But for the purposes of this table, I don't have to do that. Let's just talk about the institution itself. That's all I'm prepared to do.

When I use all my arguments that I brought forth and the six or seven weaknesses with respect to Bill C-38, I'm doing so because supposedly everybody keeps saying, oh, yes, but we're guaranteeing that you will not have to perform, as a Roman Catholic, same-sex marriages. I'm saying I don't care what the government has to do there; I'm not going to do it, period, even if it means surrendering my civil licence. I'm prepared to go that far.

However, for someone simply to say that you shouldn't have anything to say with respect to the nature of marriage because you happen to be religious, I'm going to say, excuse me, this is a false understanding of the separation of church and state that the foreign minister, unfortunately, didn't take a course in when he was doing his course in political science. I venture to say there are probably a few others in the halls of Parliament who haven't passed Political Science 020. I say that as a former university professor.

The Bishop could have pointed out, but did not, that the “separation of Church and State” is best understood as a valid jurisdictional distinction important to both but that it is neither here nor there with respect to the cooperation of Church and State nor is the Separation of Church and State another way of saying, as it often is, “remove religions from the State.” These two points are important and need to be understood against the secularistic arguments of people like Real Menard.

All in all it would seem that Real Menard, were he a bowler in cricket - -got hit for six; and CRA (aka Revenue Canada)? Time will tell about it……but it is high time that it had its nails clipped.

Iain T. Benson©