Tuesday, October 17, 2006

The Flip Side

A short while I ago, I wrote about the the Delwin Vriend case, and back here, I wrote a bit about the Scott Brockie case - both of these cases are regularly trotted out as examples of how "gay rights" is trampling on "freedom of religion".

I think I've more or less debunked that particular line of reasoning, but today, I see in the news an example of the discrimination being reversed in Berkeley, Califoria. I've argued before that if you are going to engage in discrimination against GLBT citizens because of your religion, you may well find some turnabout coming back sooner or later.

What was striking was the following bit of the article:

Even so, the California supreme court said in March, local governments are under no obligation to extend benefits to organizations that discriminate. Berkeley, home of free speech protests since the 1960s, adopted a nondiscrimination policy on the use of its marina in 1997 and revoked the Sea Scouts' subsidy a year later.

The Sea Scouts is a branch of the Boy Scouts that teaches sailing, carpentry, and plumbing. City officials had told the group that it could retain its berthing subsidy if it broke ties with the Boy Scouts or disavowed the policy against gays and atheists, but the Sea Scouts refused.

I thought that this was very interesting, because it strongly mirrors a key aspect of the factual scenario in Vriend:

On February 20, 1990, in response to an inquiry by the President of the College, Vriend disclosed that he was homosexual. In early January 1991, the Board of Governors of the College adopted a position statement on homosexuality, and shortly thereafter, the President of the College requested Vriend’s resignation. He declined to resign, and on January 28, 1991, Vriend’s employment was terminated by the College. The sole reason given for his termination was his non‑compliance with the policy of the College on homosexual practice.

Please note the similarities here - in both cases, a policy contrary to the aggrieved party was adopted. When compliance was refused, outstanding agreements between the policy making organization and the other party were terminated.

The Berkeley situation gains a similarity to the Brockie case in that the municipality appears to have engaged in a "denial of service" discrimination against the Sea Scouts - based largely upon the Sea Scouts statements of faith. (Please note that the Sea Scouts were not prohibited from using the berth, but had a long standing subsidy removed)

Before I dive into trying to map this into Canadian Constitutional scenarios, I'm going to point out that the US court system has upheld the right of the Boy Scouts of America to discriminate against gays. (I was unaware of their policies with regards to atheism, but I'm going to assume that they are very similar) - so in some ways, this scenario is the logical counterpoint to the original rulings in support of the Scouts.

Of course, Canada's legal framework is substantially different from our American friends, so what follows is my speculation of how this same case would ultimately play out in the Canadian system.

The first thing I'll point out is that any decent lawyer is probably going to drag up the cases of Vriend, Brockie and the Knights of Columbus (see my previous linkage) when raising a complaint about having their subsidy revoked as a human rights issue. The irony is almost humorous here - given the screaming that those cases normally incite from the religious wing.

Principle #1: Individual Rights and Protections can, and are often extended to organizations.

This is clearly the case in the Brockie and Knights of Columbus rulings.

Principle #2: Non-Discrimination

The split decision in the Knights of Columbus case is intriguing here. On one hand, the KofC was censured for breaking a contract after the fact, but they were explicitly told that they were perfectly free to not rent their facilities to same-gender couples celebrating a marriage as long as the policy was explicit up front.

This is an interesting blend of the Brockie ruling which concluded that:

12 There are organizations so imbued with the identity or character of their membership, or so clearly representative of a group that is identified by a prohibited ground under the Code, that they cannot be separated from their membership and the organization itself takes on the protected characteristic. The Archives are such an organization.

... and the support of the Section 2 of the Charter of Rights and Freedoms.

Principle #3 Freedom of Religion

I will point out that in neither the KofC nor Vriend cases does it appear that the "corporate entity" is compelled to alter their policy. As far as I know King's College in Edmonton still has an "anti-homosexuality" policy, and I do not believe that the Knights of Columbus have been obliged to alter their policy, merely make it explicit.

So, returning to the hypothetical case that the Berkeley Sea Scouts scenario were to unfold in Canada, we would likely find the following:

(1) The municipality would be in breach not just of contract, but of the Scouting organization's charter supported rights. (Uniquely, using the same logic that was applied in Vriend, Brockie and KofC.) They would likely find themselves penalized, ordered to restore services, and ordered to drop or substantially alter the offending policies.

(2) If Scouts Canada were to engage in the same policy as their US cousins, they would likely find it necessary to make that policy explicit, and possibly would also need to define themselves as a "religious" organization as well.

(Note: Scouts Canada does not make any "faith statement", nor do they engage in explicit discrimination as a result of such a statement, so this second aspect is pure conjecture)

This is precisely why the suggestion that Canada needs a "Defense of Religions Act" is such an utter logical farce.


valiantmauz said...

Hello Grog -

Just wanted to let you know I am appreciating your analysis of DORA issues. It has provided me with factual ammunition in more than one debate, though I am not as eloquent or even-handed as you are.

- v

Grog said...

I'm glad you're enjoying my attempts at reasoned writing.