Freedom of Religion

Lately, there has been a great deal of hand-wringing on the part of the religious communities over the impact of Bill C-38 on Freedom of Religion.

After reading Bishop Henry's latest missive on the subject, as published in the Calgary Sun, I thought I'd do a little exploration of the topic of religious freedom and what it means in a country like Canada.

I once read a quip from an American commentator about freedoms: "Your right to swing your fist ends at my nose".

It's not a very complex statement, but it does point out a couple things about individual rights and freedoms - they are bounded by the rights and freedoms of others. For example, a neo-Nazi in Canada is perfectly free to believe that there is a zionist conspiracy to take control of the world's financial structures. Nobody can stop that person from bearing that belief. They may even claim that their beliefs are protected under Section 2(a) of the Charter since they belong to one of the "Aryan Churches".

Up to this point, I see no problem with any of this. Our hypothetical character has done nothing beyond belonging to a particular faith, and adopting the beliefs of that faith. However, should this person begin to agitate that Jewish people should be treated differently under the law because of this person's religious beliefs, we run smack into several chunks of foundation law in Canada.

First, we run into section 15(1) of the Charter, which reads:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In other words, our hypothetical Neo-Nazi's faith is bounded by this equality clause, which not only guarantees him the right to his beliefs, but also guarantees the rights of the minority group he wishes to suppress.

Ah, but Judaism is a recognized faith, and further Jewish peoples are a recognizable and relatively visible ethnic group you say. Therefore, my argument is spurious relative to Bishop Henry's objections to Same-Gender-Marriage (SGM) and Bill C-38.

Not quite. Take a close look at the sentence structure used in section 15(1). This sets out a key boundary relative to other aspects of the legal rights and freedoms - that of individual equality, especially with regards to the law. Please note that the wording around the non-discrimination list is quite broad, leaving it open to reading in societal groups not explicitly listed. Once again, homosexuals or other "invisible" minorities can be read into the protection inclusively. There is considerable legal precedent for doing so in a number of significant cases in Canada that have forced governments to change laws as a result.

Having established the fact that freedom of religion is inherently bound with the individual, how does a church protect itself before the courts? First of all, the rights of the individual clergy are clearly protected under the bindings of section 2 of the charter. There is no clear way that I can see that a member of the clergy (or anyone else) can be compelled in law to solemnize a same-gender-union if they do not wish to. (Inevitably, there will be a few lawsuits on this matter, I'm sure - but they will be doomed to failure) This leaves the matter of a church organization being forced to allow what they believe to be a profane act to take place on sanctified premises. (Assuming, of course, that the couple can find an agreeable member of the clergy to perform the ceremony)

There are two reasons I do not think this is a real problem. First, is the fact that nobody has successfully challenged the Roman Catholic Church's position with respect to the ordination of women. The position taken has been that this is a matter of church doctrine, and therefore protected. Second, are the protections granted under the notion of 'freedom of association'. If one views a church as a social group - an association for legal purposes, it would be difficult indeed to make a compelling argument that this group should be forced to allow a profane act on their premises. (Again, it is likely that legal challenges of this nature will arise, I am asserting that such a challenge is doomed to failure)

Fundamentally, there is nothing about bill C-38 that actually attacks either freedom of religion, freedom of association or freedom of expression. It opens the probability of a few short-lived lawsuits, but that's about it. What Bishop Henry and other religious leaders need to wrap their allegedly rational minds around is that the issue for them is not around same-gender-marriage, but rather the question of just how far their right to spout misinformed positions about sexual minorities goes.

There is a repeated claim that legalizing same-gender-marriage will "harm society". Granted, this argument is trotted out every time society begins to grant rights to previously marginalized minorities. The question that Bishop Henry and others like him have failed to answer is "what is the nature of the harm?". I invite them to draw from the wellspring of history and show by example what kind of harm they foresee.