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September/October 2004

Discover more articles from this issue.

Equality And Matrimony

One enters the fray of the same-sex marriage debate with trepidation. The principal parties in the debate are so polarized, and the stakes seemingly so...

Sex, Law And Politics

The debate about same-sex "marriage" is a quintessential example of competing values. In some ways it is almost a textbook example of the competition...

Canada’s Justice Minister Wants to Change the Constitutional Meaning of Marriage

On June 10, 2003, Chief Justice Roy McMurtry, of the Court of Appeal of Ontario, issued a judgment ordering the...

Teaching True Values

Perhaps it is not surprising that the classroom has become the battlefield of hot debate over public values. Schools, whether private or public, have...

Why Silence is Not an Option

Religious communities that view sexual relations outside of the traditional marriage of one man and one woman as immoral and a "sin" ought to prepare...

Behind Closed Doors

There are people who might argue that a discussion of the same-sex marriage issue does not belong in Liberty magazine–a journal devoted to the...

Civil Rights And Homosexual Rights - A Flawed Analogy

Advocates of the homosexual rights movement repeatedly draw an analogy between their own struggle and the civil rights movement of the 1950s and 1960s,...

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Published in the September/October 2004 Magazine
by Barry W. Bussey


Religious communities that view sexual relations outside of the traditional marriage of one man and one woman as immoral and a "sin" ought to prepare for the greatest assault on religious freedom in recent memory. The assault will come from two fronts. One front will be external. As those in power begin taking a sympathetic stance toward the "new sexual realities," they will use their influence and governmental power to coerce conformity. The other front will be internal. Those within the religious communities who fear being marginalized by membership in a nonconforming group will exert pressure to change religious teachings to bring them into line with society's new views.

In discussions with a particular pastoral candidate local church elders informed him that should he come to their church, he was not to mention a word about same-sex relationships. No sermons, no Bible studies, no church discipline, could be administered over the issue. Silence on the matter was not only expected; it was demanded of the pastor. In good conscience the pastor decided that that church was not for him. He went elsewhere to minister.

One could perhaps understand if the church that made such a demand were of a liberal mainline denomination. However, such was not the case. It was a local church in my own denomination–Seventh-day Adventist.

For religious communities that look to the Bible as the source of their faith, there is an immense struggle to be compassionate toward our neighbors who are struggling with immoral sexual inclinations and at the same time be consistent with the strong biblical prohibition of extramarital sex. Such communities find themselves in the midst of a fierce firestorm—condemned on the one hand as giving in to the world or on the other as being judgmental and uncaring. It is almost a no-win situation.

Many today argue that religion has no place in the public discussion of morality and law in a liberal democratic society. Professor Robert Wintemute argues: "Although religious individuals may find it hard to put their religious beliefs aside when they enter the public sphere, a liberal democracy cannot function in any other way. This also means that religious individuals who accept employment in the public sector cannot insist on being exempted from serving LGBT individuals or same-sex couples, whether this involves selling them stamps, teaching them, or a few years from now, marrying them."

Religious leaders are calling on their denominations to refrain from voicing an opinion. One religious group, they argue, has no right to insist that a culture and society reflect its religious views, because if it does, the right must continue to others, and those others may disagree.
Such reasoning fails to recognize a number of important points. First, the liberal democratic tradition of the West, including of course the United States and Canada, has always based its views of morality on religious tradition, i.e., the Judeo-Christian ethic. The philosophers of political theory, on whose shoulders we stand, often warned of the follies of freedom without virtue.

Consider, for example, these words of Edmund Burke: Men qualify for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.

Jonathan Chaplin, of the Institute for Christian Studies, argues, "Nothing in the obligations of virtuous citizenship in a liberal democracy requires that there should be any restraints at all on the employment of religiously-based arguments in law and public policy advocacy."

Second, religious communities in our democracy have consistently helped shape political debate over public issues. Examples of this abound. The prohibition and temperance movements of the nineteenth century, the civil rights era of the 1940s, 1950s, and 1960s had at their center Christian churches who sought reform on public and at times controversial issues. To suddenly turn off the tap and tell the religious community that their views are no longer necessary for our "liberal democracy" flies in the face of our history. Further, one cannot deny the fact that the freedom we enjoy today is due in no small part to the efforts of the religious community to maintain freedom.

Third, such an opinion rejects the notion that the human endeavor, at least in part, is to seek knowable truth. Objective truth has never been thought to occur only by means of secular reasoning. Certainly Sir Isaac Newton did not think so. Michael McConnell observes: "There are not secular truths and religious truths, but only truths. . . . Unless truth is internally inconsistent, the person who thinks that secular arguments point in one direction and religious arguments in another should examine the conflict and find out where the error lies."

Particularly problematic in the current discussion over same-sex rights is the attempt by the gay rights advocates to shut down debate using the levers of power. A number of disturbing developments have occurred in Canada in this regard.

Hugh Owens placed an advertisement in the StarPhoenix of June 30, 1997, on the occasion of the city of Saskatoon's Gay Pride Week. It listed in a column four Bible references (Romans 1:21-32, Leviticus 18:22, Leviticus 20:13, and 1 Corinthians 6:1-10), followed by a mathematical equal sign, followed by the universal prohibition sign (circle with slash) over a graphic of two stick men holding hands. Three homosexual activists complained to the Saskatchewan Human Rights Commission, which agreed that it was discriminatory and exposed homosexuals to hatred. The decision was appealed.

On December 11, 2002, Justice Barclay of the Saskatchewan Court of Queen's Bench held: "[21] In my view the Board was correct in concluding that the advertisement can objectively be seen as exposing homosexuals to hatred or ridicule. When the use of the circle and slash is combined with the passages of the Bible, it exposes homosexuals to detestation, vilification and disgrace. In other words, the Biblical passage [sic] which suggest that if a man lies with a man they must be put to death exposes homosexuals to hatred."

In the late spring of this year Parliament passed an amendment to the "hate crimes" sections of the Criminal Code of Canada (section 318 and section 319) to include "sexual orientation" as a prohibited ground. The crimes include "advocating or promoting genocide" and "public incitement of hatred," which is defined as communicating statements in a public place that incite hatred against any identifiable group.

There was some considerable opposition to the amendment from the religious community. The decision in the Hugh Owens case, though a civil matter, did raise a concern as to whether a court in a criminal case under hate crimes would find that the Bible exposes homosexuals to hatred. In all probability it would. What will that mean to those members of the clergy who would preach against homosexuality, making reference to the Bible? Time will tell.

In all likelihood the hate crimes prosecution for matters involving sexual orientation will be rare. Religious groups and members of the clergy will not be interested in exposing themselves to possible criminal charges. The result may well be what the activists wanted in the first place–a limit on the discussion of sexual behavior as an issue of morality within and outside of the religious community.

Bruce MacDougall, a law professor and homosexual activist at the University of British Columbia, notes that "traditional conservative religion" is "the major voice that would deny any celebration of homosexuality" by the state. The characterization of the cases for equality rights "as being about religious freedom. . . [is] a justification for translating religious standards and views into political and legal decisions about equality issues such as sexual orientation."

Iain Benson, of the Centre for Cultural Renewal, argues that judges should be mindful of the competing faith claims in these cases. "They must also be careful to avoid the temptation (now frequently offered by litigants) to re-fashion what are, in essence, disputes of differing conscience or faith beliefs as disputes based on a supposed and imagined superiority of principles of equality, instead of a conflict that is actually rooted in differing faith conceptions."

MacDougall counters that Benson turns equality rights issues "into religious/morality debates," which would not happen under other headings of discrimination, such as women's rights or mixed marriages.

Benson argues that since "all human beings operate on some basis of faith," even those who claim to be "secular," faith being metaphysical assertions that we cannot prove, it is crucial that those whose faith is influenced by religion should not be arbitrarily dismissed from the public debate on law and morality. As D. M. Brown puts it, "The 'neutrality of the secular' is simply a myth and should be recognized for what it is–a substitute moral construct supported by the power of the state."

"Equality for gays and lesbians is only a 'moral' issue," says MacDougall, "because the established religions make it so. . . . If the court accepts that characterization then the issue is fought on the terms and territory and with the language established by religion and of course religion will win."

MacDougall notes that other grounds of discrimination do not have this "moral" problem as sexual orientation does. It is imperative to remove this "religious characterization" of homosexuality.

If morality is to be unfettered from religion, from whence does it come?

From "the law itself," says MacDougall. "The Charter should be the starting point for determining what is legally relevant as 'moral.'" Since the Supreme Court of Canada has decided that sexual orientation cannot be a ground for government discrimination, how then can it be said that such a ground is "morally controversial"?

Thus the mantra that whatever is legal must therefore be "moral." Follow that logic, and we end up with the conclusion that whatever is illegal–such as the discrimination by the religious community against homosexuals in their hiring and firing practices or their failure to properly provide a "nondiscriminatory" curricula in their schools—is not only illegal but "immoral."

Suddenly the religious community will find themselves in a very precarious position indeed. Certainly that is why we must not be silent.


___________________________
Barry Bussey is a lawyer who writes from Toronto, Canada. He is the public affairs and religious liberty director for the Seventh-day Adventist Church in Canada.
___________________________


1 Robert Wintemute, "RELIGION vs. Sexual Orientation: A Clash of Human Rights?" Journal of Law & Equality (2002): 125, par. 33.
2 Jonathan Chaplin, "Beyond Liberal Restraint: Defending Religiously-Based Arguments in Law and Public Policy," University of British Columbia Law Review 33 (2002): 617-646, par. 36.
3 As quoted by Richard F. Duncan, "Homosexual Marriage and the Myth of Tolerance: Is Cardinal O'Connor a 'Homophobe'?" Notre Dame Journal of Law, Ethics, and Public Policy 10 (1996): 592.
4 Owens v. Saskatchewan (Human Rights Commission) [2002] SKQB 506.
5 Bruce MacDougall has argued that a minority group's struggle for equality requires three identities to be free from discrimination: (1) compassion; (2) access to benefits others have (condonation); and (3) inclusion as a valuable group by the society (celebration). He notes that the current state of affairs for the homosexual community is that they have achieved compassion and condonation; now they are after celebration–which has to do with such symbolic matters as pride day proclamations, content in school curricula, and marriage. See B. MacDougall, "The Celebration of Same-Sex Marriage," Ottawa Law Review 32 (2001): 253.
6 Bruce MacDougall, "A Respectful Distance: Appellate Courts Consider Religious Motivation of Public Figures in Homosexual Equality Discourse–The Cases of Chamberlain and Trinity Western University," University of British Columbia Law Review 35 (2002): 511, par. 4.
7 Ibid., par. 17.
8 Iain T. Benson, "Notes Towards a (Re)Definition of the 'Secular,'" University of British Columbia Law Review 33 (2003): 543.
9 MacDougall, "A Respectful Distance," par. 19.
10 Benson, p. 529.
11 D. M. Brown, "Freedom From or Freedom For?: Religion as a Case Study in Defining the Content of Charter Rights," University of British Columbia Law Review 33 (2000): 610.
12 Bruce MacDougall, Queer Judgments: Homosexuality, Expression, and the Courts in Canada (Toronto: University of Toronto Press (2000), p. 124.
13 See a historical account of this by John M. Finnis, "Law, Morality, and 'Sexual Orientation,'" Notre Dame Journal of Law, Ethics, and Public Policy 9, no. 1 (1995): 1-39.
14 MacDougall, "A Respectful Distance," par. 37.
15 Ibid., par. 39. For further discussion, see Lucinda Peach, Legislating Morality: Pluralism and Religious Identity in Lawmaking (New York: Oxford University Press, 2002).

Author: Barry W. Bussey

Barry W. Bussey is vice-president of Legal Affairs at the Canadian Council of Christian Charities, Elmira, Ontario, Canada.

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