In support of the Whatcott Decision: My response to Jonathan Kay

“The complication is that millions of Canadians do see homosexual behaviour in exactly those fire-and-brimstone terms, even if the rest of us (myself included) do not. They include not only many religious Christians such as Mr. Whatcott, but also many religious Muslims and Jews. And there is no sugar-coating the fact that — despite its claim to be “balancing” the rights of all concerned — the Court effectively has privileged the protection of gay Canadians over the right of religious Christians to promote what they view as the established, Biblical take on homosexuality.

Moreover, the Court wrongly chose to wipe away any distinction between hating acts associated with homosexuality, and hating homosexuals as people. That distinction may be meaningless for most Canadians. But it is an important distinction in Christian doctrine. Whatcott himself specifically invites gays to “repent” their ways and attain salvation — which suggests, crucially, that he does not regard any person as permanently stained by sin.

Political correctness may not be running amok among Canada’s highest jurists. But it certainly is serving to suppress the views of strict religious conservatives. And it is a shame that the Supreme Court did not use this opportunity to afford citizens such as Mr. Whatcott the same free-speech rights enjoyed by secular Canadians.”

  • Jonathan Kay: Try as it might, the Supreme Court can’t sugar-coat anti-Christian censorship, by Jonathan Kay, Last Updated: Feb 27, 2013 7:20 PM ET


I have read a number of articles which have argued that the Whatcott decision was wrong. They were authored by Rex Murphy, Andrew Coyne, Michael Plaxton and Jonathan Kay. As I read each one, I had the same reaction: I put my head in my hands. For, those pieces missed the mark and the point of the decision.

However, it was after reading Mr. Kay’s piece that I started writing and found myself having two threads of thought: a political one and a religious one. As an agnostic or lapsed Anglican, I remembered a phrase that I heard in Church: “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s”. Those are biblical sentiments which I was reminded of constantly. Those words remind all Christians that faith is not related to a particular society or a particular government or a particular time. Our faith is a “particular path”; a path which has greater purpose and many difficulties. Therefore, as in Roman times, there is a difference between our faith and the laws of a country. With that being said, as Christians, our faith drives us to follow the law to the best of our abilities in any country in which they find themselves. This has been the way of the Christian faith for more than 2,000 years.

However, those sentiments are not shared by Christians alone. One could argue that the main tenants of the Judea-Christian-Islamic World are based on the acceptance of political leadership, either secular or not, where possible. Sometimes, this has meant that populations have moved. Mormons left the US West to try to maintain their polygamy. Pilgrims, Mennonites, Doukhobors, Amish and Mennonites are just a few of the sects that moved to the new World to ensure their values were maintained. With that being said, much of the religious world chooses to update their values, when faced with challenges of a spiritual nature. After all, in most of the world, a woman is no longer stoned to death for the act of adultery, homosexuality is no longer a capital offense and women are not considered to be unclean just for having a period. Over time, the religious sanctions found in the Bible, the Torah or the Qu’ran have been modified to deal with the realities of the modern world.

In that same way, Canada has never tolerated the austere adherence to “strict religious conservatism”. For example, since the Guibord case in 1874, Civil Courts in Canada have had the right to resolve disputes between members of a church and the church organization. The basis for the ruling was that churches are required to comply with their own internal rules and laws. While members of the church have the right to be treated in accordance with those internal rules and Church law, it is also true that Courts have a right to solve societal disputes that involve the Church, its members and society.

In 1955, the Supreme Court of Canada ruled in Chaput v. Romain that all religions have equal rights, based upon tradition and the rule of law. However, the Court also ruled in 2009 that the State can override the wishes of a Family’s religious beliefs to provide lifesaving treatment. (Girl’s forced blood transfusion didn’t violate rights: top court, Last Updated: June 26, 2009, CBC News) In fact, the B.C. Supreme Court in 2009 went so far as to uphold Canadian polygamy laws, thereby violating the religious beliefs of a number of Mormons in the town of Bountiful BC. (Canada’s polygamy legislation, CBC News, Posted: Jan 21, 2009 6:12 PM ET, Last Updated: Nov 23, 2011 1:48 PM ET). Canadian Jurisprudence in regards to religions and religious institutions has always been complex but it has always been fair and evenhanded. It has started from a point of respect, acceptance, and inclusion. It has been a hard process to balance the interests of various stakeholders and has led on-going challenges but we have moved toward greater inclusion as a society, even if only at a snail’s pace.

This is also why Premier McGuinty, in 2005, made a bold move. Instead of allowing Sharia Law to be a source of marital law for Conservative Muslims – as had been done from very Conservative Christians and Jews – Premier McGuinty abolished the practice and moved to a secular system for all. This is the religious reality in Canada: public space and fair treatment for all.

That fair treatment has and continues to extend to all Christians; for, Canada is a Christian Nation. Simple stats tell us this. In 1901, 98% of Canadians were either Protestant or Catholic. In 1981, 90% of Canadians were either Protestant or Catholic. In 1991, it was 83%. In 2001, the Canadian Census said that 77% of Canadians claim to be Christian. What is more stunning is that 72% of Canadians, in 2001, claimed to be either Protestant or Catholic. So while, the rate has been decreasing, an overwhelming amount of Canadians are either Protestant or Catholic. Therefore, it is difficult to understand why a responsible limit could be declared as a trampling of our freedom to worship or freedom to speak.

For, what we are talking about are responsible limits. Mr. Whatcott does have a right to speak his mind. In fact, as a citizen, it is his obligation. However, that right, that obligation, does come with some responsibility. For example, no Canadian can yell fire in a theatre because the resulting chaos would likely result in death. Equally so, Mr. Whatcott has to ensure that he is not endangering society by using his words. Or changing context, just as Canadians have a right to drive a car; we also have an obligation to ensure that our car is registered, that our driver’s license is valid and that we are not speeding or driving dangerously.

In that same way, it will be argued here that Religious Belief should succumb or defer in part to Canadian Law. In the extreme case, most Canadians would agree that we don’t want a religion to perform a human sacrifice to attain their goals. Additionally, over time, Canadians have spoken out against “female circumcision” (also known as female genital mutilation), against the use of Burkas and the practice of polygamy. While the proponents of each of those practices have argued their essential religious value, Canadians have rejected their use or application in Canadian Society. In that way, we have said that Canadian Law should supersede some practices.

If that was not the case, a severely conservative Christian could have spoken poorly of Buddhists, Hindu or Muslim; for the letter of Christian belief is simple: those who do not follow the Christian faith will not be redeemed in the afterlife. From a severely Christian point of view, those who do not follow “the way of the Lord” are “sinners”. My hope is that free speech advocates are not arguing that the two percent of Canadians who are Buddhists should be accosted for not believing in a Hell. My hope is that free speech advocates would not be in favour of mocking Hindus – which make up one percent of the Canadian Population – for their belief in a multi-deity universe. Nor, should Canadians minimize Muslims – who also make-up one percent of the countries’ population – for their belief that Mohammed is the last prophet in a long line of prophets that include Moses, Abraham, John the Baptist and Jesus. For, this would be the logical outcome of allowing extremely devout Christians to attack an identifiable social group. That group could be practitioners of Islam or those who are members of the LBGT community. Or it could be a group which is similar to my own heritage. Allowing Mr. Whatcott to attack the LBGT community because they do not fit his social morality would be like allowing Mr. Whatcott to attack a set of people because they eat food which is kosher/halal or allowing people to attack others based on the way they dress, on their marital status or on their skin colour. While this type of argument might be harsh, it is truthful.

It is my belief that Canadians should respect each other. Generally, this means allowing for others to be different. Where this allowance on an individual basis is not enough though, serious questions must be asked. Serious solutions must be found. For attacking individuals could lead to the attacking of groups. History is full of such circumstances and we should always remember that. As a man of Caribbean History, I know this all too well. More importantly, given that more than 70% of Canadians are Christians, if society is to be inclusive, it must remember all peoples. This includes the 6.4% of religious non-Christian Canadians and the 16.5% of Canadians have no religious affiliation at all. Their rights too must be balanced.

In Canada, we have traditionally taken the viewpoint that all people should be allowed to practice their religion as long as it does not harm them or others. However, as noted earlier, there are times when someone must step in and stop harmful practices. At some point, individuals need to be protected. As such, Mr. Kay is wrong when he says “that the Supreme Court did not use this opportunity to afford citizens such as Mr. Whatcott the same free-speech rights enjoyed by secular Canadians”. In this case, as in many others, someone needs to protect the right of someone to be absent of religious practices just as much as someone needs to protect the right of people to practice their religion.

Mr. Kay argues that Religious Freedom is paramount but our way of dealing with Churches indicates the problems with his point of view. Just look at the construction of churches, synagogues, temples or places of worship. Churches have to get building permits to erect buildings. Or put differently, Churches have to conform to modern construction methods and not the cubits and other measurements found in the Bible. It is not shocking to say that Churches, for quite some time, have bowed to modern architecture and design practices. In that same way, religious institutions obey tax law so that they can keep their charitable status. Given that Churches voluntarily follow the law, the question is not should the State interfere in the Church but when.

Generally speaking, Canadian Law does not tell religions how to practice, worship or what is said in mass. For example, Christian Churches have not been required to adhere to the recent changes in secular marriage law. No Church has been mandated by the Canadian State to marry a same-sex couple. This is a part of the respect shown to Religion in our society.

So, one question still remains: when should the state interfere in the area of religious practice? We could look at a demographic answer. However, this will get us nowhere. Simply put, one will note that the interested populations that would be involved in this battle are relatively significant. Consequently, the ensuing battle would tear society apart. For example, one can quantify Mr. Whatcott’s point of view by using the “Evangelical Community”. The Evangelical Fellowship of Canada argues that their point of view stretches throughout the Christian Faith. Based on that logical and various surveys, one could argue that between 4.5% and 19% of Canadians share Mr. Whatcott’s point of view. This would be juxtaposed against the existing LGBT community in Canada which makes up between 5 and 10% of the Canadian population. Having two minorities of such a size fighting about fundamental rights would cause schism in our country that would dwarf other moral arguments like the one on abortion. Consequently, let us come up with a better answer.

A Liberal Answer would start with an attempt to balance the competing interest of minority groups. Consequently, the conversation would start from a point of understanding and mutual respect. By recognizing the humanity in each other, we recognize both the necessity to defend one’s freedom to life, liberty, and the security of their person and the chance that each of us might be able to pursue our greatest joy and happiness. That acknowledgement would mean that citizen “A” might disagree with the actions of citizen “B”, “C” or “D” on any variety of topics. However, if each citizen respects the desires of the other equally, the only way that they could resolve their issues would be by discussion. Discussion requires the mutual and equal participation of all involved. The end of that discussion presumably would be a resolution in which all parties agreed to a common result or where all parties walked away.

This understanding of mutual sovereignty could be used in dealing with the case of Mr. Whatcott. For Mr. Whatcott, one could argue, violated the simple understanding of mutual sovereignty. This defilement of the concept of mutual sovereignty did not occur because Mr. Whatcott argued, within the confines of his Church, that homosexuality is a sin. Since, as we noted, in his understanding of faith, homosexuality is a sin, it would be wrong for the State to interfere within his beliefs. Furthermore, since a Church is made up of people who come to it by mutual agreement – based on their own individual sovereignty and agency – it would be wrong for the state to intervene.

While, Mr. Whatcott could have maintained some form of mutual respect or mutual sovereignty by creating a pamphlet which argued the need for Christian Values in Society, he chose a different route. Mr. Whatcott created a pamphlet which called for the elimination of “Sodomites in our Public Schools”. Mr. Whatcott also said:

“In 1968 it was illegal to engage in homosexual acts, now it is almost illegal to question any of their sick desires. Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong”. (Pamphlet created by Bill Whatcott, Source: Judgment of Supreme Court Saskatchewan (Human Rights Commission) v. Whatcott)

Therefore, the issue was not a religious notion, but the way in which that notion was expressed in a public venue. The notion was not expressed in a Church or religious ceremony; it was an expression of an idea in a free and unrestricted manner which was meant to have a political end. It was the declaration of an idea that clearly violated the sovereignty of individuals without society. Or put differently, while many elements of our society have questioned immigration policy, Canadians would be appalled if a Canadian politician said that Aboriginals, Blacks, Jews or any other identifiable group were prone to “disease, death and abuse”. Those groups do not make up 10% of Canada; and yet, we could easily say that those words would ridicule, belittle or “otherwise affronts the dignity of” any person or class of persons. So why would not extend the same courtesy to a group that could constitute about a tenth of our nation?

Those individual acts of incivility do have social effects. For example, Suicide rates in the LGBT community are more than twice as high as the heterosexual world. The high suicide rates have led to public service announcements like the “It will get better” campaign. It would be argued here that one of the simplest reasons for that fact is the lack of mutual sovereignty toward members of the LGBT community. However, these PSAs – while brave – do not solve the social problem of not extending the concept of mutual sovereignty to each citizen. This is why Government intervention is needed.

When individuals will not recognize the humanity in another person, Government should intervene. This is true in criminal law and should be just as true in dealing with human dignity. When I was a child, my father would stop the car and get out, if he ever saw a child being bullied. I was ashamed at the time. However, today, I am proud of his act of bravery. In that same way, Governments should react when one person’s actions are impinging on another citizen’s freedom. Otherwise, who will be there when my rights are being infringed? There is a famous statement which is attributed to pastor Martin Niemöller.
It talks about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group.

It is as follows:

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists,
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,
and I didn’t speak out because I wasn’t a Catholic.

Then they came for me,
and there was no one left to speak for me.

In that same tone, I wish to speak up for those who are religious, for those who are LGBT, for those who fall into both groups and for those who fall into neither group. The best way to do this is to recognize that each stakeholder group has needs, but each has an obligation to recognize the humanity in each other. If we respect the “Other” in our actions, then we might just be able to live together. Sometimes, this means having patience and sometimes it means being resilient. However, as a society, we have an obligation to defend the least among us, sinner or saint, rich or poor. Only by considering the other will we have a chance. However, when that is not the case, societies’ trustee/umpire – Government – must take on the duty to defend. I would want this, if I were in that position. As such, Mr. Kay, government has a role to protect and promote each of us; and I stand here to be counted.

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