Wednesday, July 13, 2005

Are any rights sacrosanct?

Is a law constitutional if it allows you to deny me a legitimate service, because you are morally or religiously opposed to my receiving that service?

Alberta is hoping to:

"develop legislative options to ensure the rights of religious officials and those Albertans, who hold social or cultural beliefs or values, whether religious or non-religious, will be free to express opposition to the traditional definition of marriage or a change to the traditional definition of marriage and will not be required to advocate, promote, or teach about marriage in a way that conflicts with their beliefs.”

I think we can all agree, that regardless of what we may believe on a religious or moral level -- legally and constitutionally we don't have the right to refuse a service to a person based on their sexual orientation.

Substitute 'wedding' for other services -- a lawyer refusing service to handle a gay couple's adoption or divorce; a marriage counsellor refusing to provide counselling to a gay couple; a hotelier refusing to provide a gay couple accomodation . . .

Will the moral or religious rights of a person who is against same-sex marriage, outweigh the right of a gay couple to have a service performed?

When there are conflicting rights (the right to be married vs the right to freedom of religion/free speech) someone's rights are going to have to take precedence. The courts have consistently sided with the rights of gays over the right of Christians to express themselves, and I see no reason why this would change.

A law permitting conscientious objection to gays and lesbians having access to an institution that is available to the rest of the population, would be challenged in a heartbeat.

If anyone can make a coherant argument to the contrary, I'd love to hear it.

canadianna

29 comments:

VW said...

There may be one, but it would involve a common law property right: a church or religious organization could refuse to allow a same-sex marriage to be performed within its building, or refuse to host a reception for an SSM within its social hall, on the grounds that since it's private property (i.e. not owned by the government) it can dictate how the property should be used.

Canadi-anna said...

We have no property rights under our constitution.

Ruth said...

First off, you don't have the right to get married. If a church wants to refuse to marry a straight couple, they can (and do).
For example, some churches refuse to marry non-believers. Other churches will marry non-believers but only if they agree to a religious ceremony. Some churches will not marry a believer to a non-believer. Some churches will not marry members who are under discipline. Some will not marry couples if one person has been divorced. It all depends on the doctrine of the church.
And when was the last time you heard of a (straight) couple suing the church because they would not perform a marriage? There's a reason it doesn't happen: there's pretty much no argument that could possibly stand up in a court of law.
Gays should be made to abide by the same rules as straights. If a church doesn't want to marry them due to their doctrinal beliefs, they shouldn't have to.

Loyalist said...

There is no such thing in law as a right without a remedy.

Apparently now marriage is a freestanding right of all Canadian citizens, regardless of whom they want to marry, or if anyone wants to marry them.

Therefore, if marriage is a right, as an unmarried man, I should be able to seek redress in the courts or human rights commissions if I ask Canadianna to marry me and she refuses.

Ridiculous? No more than same-sex marriage is as a concept.

Shane said...

I have a problem with the whole "not being able to refuse to serve" law to begin with. As a private citizen if I have a privately owned and operated company that provides a service, I should have the right to serve or to not serve who I like. Private clubs have a right to set limits to membership. Contractors have a right to choose who they want to work for. Why should a service provider not have the option who to serve? It is inconsistent.

If being forced to serve "everyone" without discrimination is to be consistent, then there should be no such thing as women only health clubs, and all contractors should be forced to bid on any and all tenders that they may concieveably be available to perform. Otherwise they may be choosing who to work or not work for, and that could be discrimination.

Babbling Brooks said...

Believe me, Sean McCormick at PolSpy had it right when he said there would be gays all over the place signing up to be JP's if the existing ones refused to marry SS couples. And he's right. It's a market solution - if the demand for officials is there, the supply will follow.

Canadi-anna said...

Ruth -- We're not just talking religions here - this proposed law also applies to those who object on 'moral' grounds -- like a marriage commissioner, so religious exclusions couldn't apply.
And, while I know that there are churches that refuse to marry non-believers, or someone who is divorced -- those exclusions can't be challenged under the equality provision of the Charter -- refusal on the basis of sexual orientation, can. I think the same-sex couple would win.
loyalist - you'd have to take my kids too . . .
Shane - I totally agree. Why are there 'female only' clubs, etc. -- and yet 'male only' clubs are 'discriminatory'?

Ruth said...

You are right, they would win... which is sort of ironic when you think about it. Effectively what has happened with Bill C-38 is to give gays more rights than straights, not the same rights.
With regards to refusing services on moral grounds, it's a tough call to make.

49erDweet said...

Slowly and surreptitiously the camel's nose creeps further into the tent..........

Nobody notices until finally the odor becomes overpowering, and the camel is discovered snoozing in the corner.

Mark said...

CA initially posed this question on my blog, so I feel I should respond.

Solemnization of marriage is a provincial matter.

A provincial government is not required to mandate that homosexual couples be wed by whomever they choose. Such a mandate would explicitly fly in the face of guaranteed Charter rights for religious groups and I honestly do not believe such a law would stand up to a challenge from the Churches.

A provincial government is required to provide a service through which homosexuals can get married. In the case of MCs, then, the province must provide reasonable access to an MC that will marry homosexuals, but at the same time would still be within their constitutional rights and jurisdiction to create exception clauses that allow MCs to refuse to marry homosexuals based on their Charter rights. As with the Churches, I think MCs could challenge any law that forces them to marry someone in contradiction of their freedom of conscience and win. (Perhaps I'm too optimistic.)

As a lay interpreter of the Constitution, that's how I see it.

So in the case of Alberta, the province is quite able under both the Constitution and the Charter to create solemnization clauses that allow churches and MCs to refuse to marry homosexuals based on their Charter rights while still fulfilling their requirements under the Constitution and C-38 to provide solemnization of gay marriages.

Canadi-anna said...

Mark, thanks for your answer. What you say seems reasonable, but I'm not so optimistic.
Should a gay RC couple try to marry within their own parish and be refused, it wouldn't matter what protection the provincial government offered if a court ruled that it was against their freedom of religion to be married in their church the same as hetrosexual couples are.

It doesn't seem right, but I could see a court doing it.

As for marriage commissioners, no law will protect them.
The Brockie case set a precident. There were plenty of other printers who would have gladly taken the business of the gay/lesbian group, but that wasn't good enough for them. They were insulted, and they wanted Brockie to do it. They won, and Brockie had to pay a fine, and their court costs.
If you compare the situations -- printing service/marriage commissioner -- both provide a service that the seeker could get elsewhere, but why should they have to go elsewhere in a country that doesn't allow discrimination?

Justthinkin said...

Canadianna...."but why should they have to go elsewhere in a country that doesn't allow discrimination?" Surely you jest with this statement.As a white,anglo-saxon male,I cannot apply to the RCMP,as their current hiring policy is for non-white,non-male personnel only.I do not jest.Even if I had the qualifications,I cannot occupy a senior level public service position anywhere in this country as I do not speak French.Never mind the two most prolific languages in my province are English and Urkranian.The white Anglo-Saxon male and female are fast becoming an endangered species in this country as far as rights are concerned.Sorry for the little rant,but I felt this had to be pointed out.
As for the rest of your post,excellent work.You would be amazed how many people don't realize we actually DO NOT have any property rights under our so called Charter.

Canadi-anna said...

justthinkin -- you are part of the majority. In Canada, it is impossible to 'discriminate' against a majority. Majorities in Canada do not have rights. The majority is part of something called 'the tyranny'.
I do hope you realise when I make statements like "but why should they have to go elsewhere in a country that doesn't allow discrimination?" I am just stating how things are -- I don't necessarily agree with it.

Justthinkin said...

canadi-anna....good point about my being in a majority.Perhaps I should have stated that I am in the miority when it comes to having the right to voice my opinion or to find a job without being rated as a racist or chauvinistic.I do understand that we are supposedly a country without discrimination,but if we follow that to its logical conclusion,then anarchy will reign,as everybody will have the same rights,up to and including murdering the guy next door because he gets up at 6 instead of 7.And yes,I am with you.I(hopefully) do get most of the facts and state them as they are,even if I do disagree with them.(hope you don't mind if I steal a bit of this,gonna go rant at my own house..lol)

Noel M said...

Canadianna said...

"Should a gay RC couple try to marry within their own parish and be refused, it wouldn't matter what protection the provincial government offered if a court ruled that it was against their freedom of religion to be married in their church the same as hetrosexual couples are."

There's no such thing as a gay RC couple. Didn't you just explain that to me in your last post?

Canadi-anna said...

No, noel -- don't start putting words in my mouth. People can be in a gay relationship and still be RC -- just as a woman can use the pill and still be RC.
You're confusing the issues.
The church considers gay sex sinful. You can be gay and Catholic, just as you can commit any sin and still be Catholic. It's between you and God, and your priest whether you acknowledge your sins before receiving communion. There are gay people who don't acknowledge gay sex as a sin, as there are women who use birth control and don't consider it a sin --- so they don't confess it and continue to receive communion. Are they still Catholics? Yes. Are they good Catholics -- My opinion doesn't matter, it's between them and their priests. Can they call themselves Catholic? Yes. We're all sinners, even if we fail to recognise our actions as sin.

The question we're trying answer is -- despite the church's teaching to the contrary, if a gay couple wanted to be married in the RC church, would the government recognise the right of the church to determine what marriage is within the church -- or would they impose the state definition of marriage in order to prevent discrimination in the name of religion.

noel, the question isn't whether gays can be Catholic, it is whether the government will impose its morality on the church, or will the church maintain the right to determine its own morality.
I might think the church should have that right -- but will a court think so?

If a court decides that gays are allowed to marry within the RC church, I would then agree -- they would not be Roman Catholic -- but then, neither would the church.

If you've been paying attention -- the autonomy of religion and freedom of expression and personal belief are the heart of the issue.

Does the right of gay Catholics to participate fully in the sacraments of their church (marriage), trump the right of the church to determine how and to whom those sacraments will be administered?
It is a question. The answer will come from the courts.

Noel M said...

I think the Act is pretty clear...

Section 3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Section 3.1. For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

Canadi-anna said...

noel -- I'm aware of what the bill says. I am also aware of the what section 15 of the charter says.
If a law contradicts section 15 of the charter, which carries more weight?
I would suggest the charter does.
The charter even holds that laws can be made to discriminate so long as it has as its object the improvement of conditions of disadvantaged people (minorities).
We're living in a society where courts have 'read in' minority rights not explicitly written into the Charter -- it is not far-fetched to believe that a future court will strike down the section of C-38 protecting churches as unconstitutional.
What a specific law says or means, and how the judiciary interprets that law and decides what it means, are two different things.
If you have followed gay/civil rights vs. church/religious issues over the past ten years you would see that religion seldom wins these cases.

Noel M said...

With respect to C38, the Supreme Court ruling on 9 December, 2004 contains the following:

"The religious freedom guarantee in subsection 2(a) of the Charter is sufficiently broad to protect religious officials from state compulsion to perform same-sex marriages against their religious beliefs."

So, even without Sections 3 and 3.1 of the Act, which were added later, the Supreme Court recognised that the Charter was sufficient to protect the rights of religious officials.

Canadi-anna said...

In 1995 Supreme Court Justice La Forest, speaking on behalf of four judges in the majority in the Egan case rendered a decision. LaForest said:
Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'ĂȘtre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

My how times change.

Debris Trail said...

Doesn't Alberta have the "notwithstanding" clause as a fall back? Quebec has used it a number of times; so why not Alberta?

Generaly speaking, I'm one of those non-religious people who would normally not give a damn about SSM, but, as a libertarian it rubs me very much the wrong way to see an ittsy bittsy teeny weeny minority pissing in the cornflakes of every major religious and cultural group in Canada, and in fact globally. I'd expect compromise from the Liberal/Socialists, but instead I'm afraid that they are going to do all they can to crush the churches, and at the same time any other religious groups (hindus, muslims, etc)

I've said it before, and I'll say it again; these people will not stop until the balance of people are so frustrated that the CPC will have an issue to run on and win on. Not only Christians, but all people of religion will be offended and will leave the Liberal/Socialist fold. Canadians are a very tolerant people, but they have their limits, and charter or no, there will be an enormous backlash. I can think of nothing more counter productive for a country, than running elections on moral issues. But, when one side continues to move the goal posts to the left, and expects the entire country to again and again concede, something has to give.

'Peg City Kid said...

This is the reason this will never become law and will fail to any challenge.

If a lawyer, marriage counselor or a hotelier can refuse services to gays, what prevents bus drivers from refusing service to gays? Different schools for children of gay couples? Gay washrooms? and like you said, denial of legal representation to gays. What would prevent this from spiraling into all-out segregation.

It is illegal and morally objectionable to refuse service to an African-American, Asian or Jew. It's called racism, and it's based on ignorance and hatered. Why would it be different for gays??

And exactly how do you know someone is gay? hmmmm. By the clothes they're wearing?? The way they talk??? How they walk??

Just as a rebuttal to the Brockie case example. A few times I have made my opinion of the church clear. What If I decided I didn't want to serve you because you were a Christian, would you just get up and walk away?? No, you would cry outrage and run to the nearest MP, and probably the press.

I am no legal expert, but from reading the charter, here’s what I can gather. Bill C-38 recognizes “that officials of religious denominations may refuse to perform marriages that are at odds with their religious beliefs”. Section 15 states that everyone is equal under the law, without discrimination, period. When section 15 refers to disadvantaged, it’s referring to civil rights. Bill C-38 gives civil rights to SSM’s and reaffirms the religious leaders right to deny SSM’s. So, if section 15 states that we are equal under the law, and C-38 is now a law. It reasonable to say that this law applies to everyone. Any religious leader can refuse to perform gay marriages, even a gay one.

And as far as "long-standing philosophical and religious traditions", last time I checked, they don't hit the Pope in the head with a silver hammer when they think he's dead, they call a doctor. Change is a fact of life, and it doesn't often come smoothly.

Candace said...

Klein said "conscience or religion" or words to that effect.

I defy ANYONE to define MY conscience in a court of law. Please. Try. (OK don't try that hard, I don't have free legal services in my back pocket, but I bet I could find them should the need arise).

IN the event the law is passed and IN (the very likely) case some SSM couple challenges it, it will take years to be determined.

The province holds the right to sanctify/recognize/whatever marriage (churches have been granted the right by the provinces).

IF the law is passed, and IF I were a JP (which I'm not) and IF I chose to not perform a marriage (whether SSM or otherwise), what difference is that from the Catholic Church refusing a church service to someone who is divorced or marrying someone divorced?

Can someone explain that?

Linda said...

Noel M. - C-38 may be clear, but as Cardinal Ouellet recently put it, in his brief before the Senate committee:

"This section of Bill C-38 affects only federal legislation. Nothing has been provided to ensure that this section is applied in all provinces given that legislation dealing with social issues and education is under provincial jurisdiction. The Charter currently protects freedom of conscience and religion; however, in provinces that recognize the validity of same-sex marriage we are already witnessing lawsuits against persons and groups who do not share this vision. Must we now resign ourselves to being victims of discrimination for believing in the historical definition of marriage and wishing to teach, educate and preach according to our faith and conscience? Must a majority of parents accept it as inevitable, that schools and the media will transmit a vision of marriage contrary to their own?" [emphasis added]

There's the rub.

Canadi-anna said...

Candace - The difference is that we understand a JP to be representing the government and government is not allowed by to discriminate on preceived 'moral' grounds.
If C-38 is law, and it says that gay couples can marry, then what right does an agency of the government have to deny that right? -- I would expect that even an individual who represents an agency of the government is obliged not to discriminate. It will likely become a case of vetting. Prior to hiring the question would be asked: 'do you have any religious or conscientious objection to marrying same-sex couples?' Those who answered yes, would likely not be hired.
The question about the church is trickier because although churches determine their own criteria for marriage, they too are agents of the state. A priest receives his Banns forms from the government in order to register non-licensed marriages. The Banns forms are the property of the priest, but are 'granted' and given authority by the government. In a sense, when a priest is performing a marriage -- even one where a provincial marriage license is not used, he is acting as an agent of the state.
This is why the protection of religious freedoms is not certain, even with the provisions for clergy in C-38 or even with provincial laws aiming to protect them.
All laws are subject to charter challenges and interpretation.
Peg - as for the Brockie case -- service was not refused because the person was gay, it was refused because the material they wanted printed supported the gay lifestyle. Brockie had previously done work for this person that didn't conflict with his religious views. So it really wasn't a case of discrimination based on sexual orientation, it was discrimination based on the printer's opinion of what constitutes objectionable material.
The question of refusing gay's service is not one of refusing individual service -- it is refusing a 'couple' service.
The three examples I set out were specific couples issues. If you are a Catholic lawyer, who does not recognise SSM do you have a right to reject a client based on your religion? Don't say Catholic lawyers already deal with divorce and divorce is against their religion -- divorce is not against their religion. It is frowned upon, but it is remarriage after a divorce that is not allowed.
With a hotelier, providing a room for a gay person should not be an issue -- but providing a room for a gay couple might be. Does a person have a right to refuse a room to a gay couple based on their religion?
With a marriage counsellor -- same deal -- if you don't recognise the marriage, can you in good faith act as an intermediary?
These are not simple questions. What the law actually says on these issues is not crystal clear. These are the types of things that will end up being decided by an unelected, unaccountable, decidedly liberal judiciary.

Linda said...

And in the latest news...

Les Mackenzie said...

Isn't that special...

And not to sound like Rick Mercer here but C - your comments section needs more pictures ;)

Myrddin Wyllt said...

While I dis-agree with the gay movement and gay marriage in particular, religious freedom does not give you the right to refuse service based on belief outside your residence or place of worship.

The same as I believe the Church is quit right to refuse based on Church doctrine, the government has different rules and a justice is a government employee, so it is by their rules that you must play.

Likewise companies that open their door to the public must abide by the rules governing society and not
their personal likes or dis-likes.

If a company wishes to discriminate or remain exclusive then I would suggest becoming a private club.

If we decide as individuals or in groups to flaunt the law, rather than seek support for a reversal then we are no better than Liberals, and that's one comparison I could not abide.

W.L. Mackenzie Redux said...

You have the right to freedom of association and that encompasses your right to refuse your personal services to whoever you wish...no one can force you to do something you have a moral convictuion against doing.

Please use your heads on this one. Forcing someone to engage in an activity they deem to be morally or peronally repugnant, is akin to the state forcing any type personal behavior on everyone. So what if you reject sodomy and its proponents? Have you no right to associate with who you wish?

Cummon get real, there are at least 7 charter rights that protect people from engaging in activities they deem personally or morally inappropriate....the gays only have one so called "right" and that is neither enumerated in the charter nor constitutionally legitimate.

If we can "read in" sexual orientation to the charter than that jurocratically created right extends to ALL sexual orientations and if Hetros are personally repulsed by homosexual lifestyle they have a right to "avoid it" and have private associations that do not allow imoral behaviour ...and that includes having secular statiism and all it's other morally relative dogam shoved down their throats by the state. Should the state demand they promote what they consider immoral behavior by rendering cerimony to it in their private associations ( church/businesses)There will be a Charter crisis and social backlash the likes of nothing this country has seen before.

I await the first SCC trial where the gay litigation army demand the courts make one unenumerated charter right subordinate to 7 others written in the Charter....the only out for the activist court is to invike section one stae authoratarianism and that will tant any validity the courts have left with J Q public. Should really stir anti- jurocracy backlash.