A talk by C. Gwendolyn Landolt
National Vice President
REAL Women of Canada
There is a collision of rights under the Charter and the Human Rights Acts that has arisen between religious freedom and homosexual rights.
The Charter of Rights
The Charter provides for the protection of religious freedom in two sections: S.2 and S.15. One might assume, therefore, that this double protection strengthens religious freedoms in Canada. This is not the case. The guarantees for religious freedom in the Charter have, in fact, most often been used to restrict or narrow religious freedom rather than expand it, especially when it has come in conflict with the “equality” rights of homosexuals. The latters’ rights, by the way, were “written into” the Charter by the Supreme Court of Canada in 1995 in the case of Egan v. Canada, which decision overruled the decision of the Joint Committee of the Senate and House of Commons in 1980-1981, which deliberately excluded sexual orientation from the Charter by a 22 to 2 vote. To correct this “error”, the court “read-in” protection for homosexuals stating that “sexual orientation” was analogous to the other protected groups listed in S.15 of the Charter. Once this provision for protection on the ground of sexual orientation was written into the Charter by the courts, the way was opened for escalating demands by homosexual activists.
The Courts
The Supreme Court of Canada decision M v H in 1999, which held that family benefits should be extended to homosexual partners, was a groundbreaking decision since it recognized the legitimacy and equality of same-sex relationships with heterosexual relationships. M v H set the stage for the subsequent court decisions in favour of same-sex marriage.
Thus, even though religious freedom is written precisely and clearly into two sections of the Charter, it has been squared off against homosexual rights, which were manufactured and written into the Charter by the courts.
Courts’ Attempts to Balance Competing Rights
In its effort to provide a supposed “balance” between religious freedom and homosexual rights, the Supreme Court of Canada has decided that religious rights should be divided into two distinct and separate parts, i.e., one part being the right to hold a religious belief, and the other part being the right to act on those religious beliefs. The court concluded that the right to hold a religious belief had constitutional protection, but that acts based on one’s religious beliefs in the public square did not have constitutional protection.
It is obvious, however, that religious belief by its very nature forms a central part of a person’s essential being – his/her inner self, and determines how that person relates to the world, directly influencing his behaviour. Consequently, this court-imposed balance or accommodating of religious rights by separating religious rights from religious actions has an air of unreality about it and is merely an artificial construct that provides no balance at all. To separate religious belief from religious acts indicates the judiciary’s failure to recognize the social and cultural dimensions of religion, its tremendous contribution to society by upholding moral standards and social order, and by providing invaluable social services.
The practical result of the separation of religious belief from religious action is that a believer’s beliefs cannot restrict or regulate the rights of homosexuals and their values in the public square, but that homosexuals and their values prohibit and restrict believers in the public square.
Religious Belief and Public Policy
The rights of religious believers have been trampled on in the public square based on the dubious argument that religious doctrine is irrelevant in determining secular laws and human rights and, therefore, must be excluded from legislative and judicial debates. Why should this be? Why can’t religious belief contribute to the public debate, especially since most Canadians do have a religious belief? Fairness would require such an inclusion in public and judicial debates.
Chief Justice Beverley McLachlin, however, in discussing the tension between the rule of law and religious freedom states that the rule of law is all encompassing, and sweeps everything into its orbit. She believes the ultimate victor in the tension between religion and homosexual rights has been decided, and the only issue is how best the rule of law can placate claims of religious freedom. The peculiar separation of religious beliefs from religious action is the court’s answer to placating religious believers. This solution is both unacceptable and unreasonable.
Maintaining a Just Society
Why is “toleration” only a one-way street? Why are limitations justified on religious belief or practice when similar limitations are not placed on non-religious beliefs and practices? Such a position contradicts the court’s own position that there is no hierarchy of rights under the Charter, i.e. that one right cannot trump another right.
A just society has a responsibility, within reason, to protect the freedoms of those who hold traditional religious beliefs, just as it now protects homosexual rights.
It is essential, therefore, that all beliefs systems (homosexual and religious) be permitted to operate freely and be accommodated in the public square on a “live and let live” basis. This would provide true equality under Canadian law that is not currently present.
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