Wednesday, August 30, 2006

Bill 208: Protection or pacifier?

I've taken some heat for my suggestion that Alberta's Bill 208 should die.

Like most of you, I believe neither the Charter, nor the Civil Marriage Act will protect people who do not accept same-sex marriage -- but if these won't protect the rights of those who disagree -- I fail to see how some new law is going to do the trick. This law reiterates the protections laid out in the Civil Marriage Act -- which makes it redundant:


11.1 No person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under this or any law of Alberta, 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 and the Alberta Bill of Rights, or the expression or exercise 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.

Compare to Civil Marriage Act:

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.
And, while this bill might give comfort to those who seek its protection, but it is unlikely to give the protection it promises -- which makes it futile.

A couple of commenters say that the Civil Marriage Act seeks to protect only clergy, but I don't read that. Bill 208 explicitly seeks to protect clergy and marriage commissioners, but the Civil Marriage Act mentions only 'person(s)'. It will take a challenge and a judge to make 'person' mean anything but 'living human being' -- although we know how easily that can happen.

The Alberta bill goes on to make changes to two other Acts -- one identifying clergy and marriage councillors specifically, and another identifying teachers and students specifically. Most people believe that this bill is forward thinking and will prevent lawsuits and other punitive action against teachers/students/clergy/marriage commissioners. I respectfully disagree. Specifically identifying these particular people as 'protected' weakens the meaning of the word 'person' in the first clause. If all persons are protected from punitive action when they exercise their right to freedom of religion, conscience, belief, expression, etc. -- why does Bill 208 feel it necessary to identify specific persons for more emphatic protection -- if 'person' is an all-inclusive term, breaking it down into subgroups in order to grant particular protection is either redunant, or assumes that 'person' doesn't include all people -- and then we have to worry -- by identifying specific groups does that mean all other 'persons' are excluded from this protection? Kind of muddies the waters, doesn't it?

One commenter says that marriage commissioners in Newfloundland have already been fired for refusing to perform same-sex marriages and I find that disturbing -- Have they sought legal advice or filed a complaint with a Human Rights Commission? I would hope so. I doubt it will help, but it's important not to let these things pass.

I'm well aware of the Brockie case and the Christopher Kempling case mentioned by different commenters, and I think Alberta Girl summed it up well in my comments section:
Gay activists will not stop until they have forced their will, through the courts, on this country. Even if Bill 208 passed, (which by the way the majority of Albertans believe should pass), gay activists would take it to the courts until those whose values do not accept the gay lifestyle are forced to perform unions(marriages), teach about the gay lifestyle. They will not rest until they have psuedo acceptance of their lifestyle. I say psuedo acceptance because are you really accepted if you had to force someone to accept you and your lifestyle? Me thinks not?
Last spring when the SSM debate was still raging, I argued vociferously against it. My opinions haven't changed. I have no illusions about the Charter, or the Civil Marriage Act. I am not against Bill 208 in principle, but I am against creating a false sense of security.

My post was not a disagreement with 208, it was simply a lament at its futility.

If anyone is interested, I've written extensively on same-sex marriage and the potential ramifications:

The myth of the moderate (May 24, 2005)

Same-sex marriage debate in 7 parts (ONE) (TWO) (THREE) (FOUR) (FIVE) (SIX) (SEVEN)
(May 25, 2005)

Sounds good on paper (May 26, 2005)

As C-38 heads towards law (June 22, 2005)

Response to commenters (June 23, 2005)

Religious bigotry (June 26, 2005)

Public funding, public rules? (June 27, 2005)

Are any rights sacrosanct? (July 13, 2005)

How did we get here? (July 15, 2005)

Same-sex rights, the RC Church and the UN (July 16, 2005)

It's all about sex (July 25, 2005)

Two tier democracy (December 19, 2005)

Whose values are these anyway? (January 14, 2006)

Activist judges-- never! (January 19, 2006)

Expressing my views . . . (January 21, 2006)

canadianna

11 comments:

Joanne (True Blue) said...

Where to begin?

O.K. ..but if these won't protect the rights of those who disagree -- I fail to see how some new law is going to do the trick..

The Civil Marriage act can only deal with issues under the federal jurisdiction i.e. the definition of marriage. It cannot interfere in provincial areas (the solemnization of marriage).

Indeed this is a very necessary step because in the west the marriage commissioners are employees of the province. In Ontario we don't have that kind of set-up. It's done more at the municipal level, and more as a business. (Please correct me anyone, if you disagree).

Focus on the Family has urged people to write to their provinical representatives to take the exact action that Alberta is doing now.

Anonymous said...

Thank you Joanne! Whenever I read a post that reads as though its author is as completely clueless as Canadianna clearly is, I wonder if it is I who is missing something. Clearly, if you don't appreciate that the federal legislation only protects those in federal jurisdiction, you should not be posting on this subject. needless to say, I declined to read Canadianna's 'other posts' on this subject. I am now going to to ask the bloggingtories to remove this silly site from its blogroll today.

Cheers!
Mary

Joanne (True Blue) said...

Looks like Canadianna got her wish anyway:

Check out Lifesite.

Don't ya just love democracy?

Canadi-anna said...

Get a grip girls -- first -- I do understand the separation of powers -- but it matters not which branch of government promises protection --- the final say will eventually come via the Supreme Court. Hence, my argument that this bill was pointless.

Second, I'm hardly 'clueless' Mary. Just because we disagree doesn't mean you have to be rude. Commenters who've actually read my posts regularly would know that my 'expectation' of Charter protection was meant facetiously. Perhaps before attributing the word 'clueless' to me so blythely, you should peruse the links to some of my previous posts on this topic. It's fine with me if you don't want to be bothered, but don't go calling me 'clueless' again unless you do.

And third -- Joanne, it's hardly my 'wish'. I know you read both posts because your comments reference them, but if you'd gotten past the part that says 'the bill should die' you might have noticed that I don't agree with SSM and I don't believe anyone can or should be forced to pretend they do in order to keep their job.

My message never suggested that I was against the legislation -- simply that I believed it to be an exercise in futility and one that would give a false sense of security to those who might eventually be sued and who mightn't be able to afford extensive and expensive litigation.

Even if this legislation had passed -- it would never have provided the protection it promised. It couldn't.
As so many commenters pointed out, the Charter is a vehicle for advancing a progressive agenda. That agenda is being pushed by our esteemed judiciary.
Our parliamentarians enact laws and our judiciary reads into those laws what they choose. Bill 208 wasn't going to change that. It was a pacifier.
If you're ticked off at anyone, it should be the mental giants in the last parliament who made this happen -- don't shoot the messenger.

My opinion here didn't prevent the legislation from passing, but Albertans are no worse off without it because any activist with an agenda could have challenged the law by suing or accessing a human rights tribunal. Commenters have listed some of the cases and their outcomes. Not very promising and 208 was not going to be some magic solution.

I know you're passionate about this stuff Joanne, and you are obviously very hopeful. That's admirable, but I tend to be realistic. The point is moot now, so we'll just have to agree to disagree.

Joanne (True Blue) said...

Canadianna, I think I owe you an apology. I obviously misunderstood your position. Thanks for clarifying it.

I still think that some kind of provincial legislation could be helpful when the inevitable court and human rights cases come up, but yes, the so-called rights are now largely skewed towards the progressive left. And kind of dissent or failure to comply is labelled as bigotry.

Yes, I am passionate and hopeful, because to acquiesce to the alternative is unacceptable for me.

Sorry for jumping to conclusions. I've read over some of your earlier posts, and I think we are basically on the same page.

I have no problem with gay folks living their lives, and have all the inherent Canadian rights. Just please don't call it marriage. Or let's just get rid of the word altogether. For me, it is blasphemy.

Canadi-anna said...

Joanne -- Thanks. Yes, I figured we were on the same page. I tend to be a little cynical though.
We need people like you (and even the Alberta Conservatives) who are more optimistic -- or, like you say, we'll end by just giving in.
I sincerely hope that doesn't happen.

Joanne (True Blue) said...

Thanks. I think the Alberta Conservatives bit off more than could be swallowed with that bill.

If it were me, I would have just gone for the protection of religious rights of the marriage commissioners. I knew the teachers' and parents' rights were doomed. (See, I am a bit of a realist!) ;)

Tubby said...

I always did like reading your blog last year, before my two heart attacks and a triple by pass operation sidelined me. I see you are still as informative as ever.

You said some nice things on my blog last year and I appreciated that.

lol
Tubby

Nicol DuMoulin said...

Excellent rationalization. If the Charter cannot protect, then what else can?

I agree and understand why some would want this passed but agree that in the world of 'real politik',it will make little difference.

Alan said...

"Specifically identifying these particular people as 'protected' weakens the meaning of the word 'person' in the first clause."

The Bill itself would not be considered. There would be no inconsistency within each individual consequentially amended Act. The fact that "person" is used in one act would not affect the judicial interpretation of another that purports to protect particular individuals. In other words, a person would seek protection not under Bill 208, but under one of the consequentially amended acts.

Of course, with the SCC we have, none of the Acts would be interpreted as being constitutionally valid, so it's a moot point. I suspect the SCC would say that these measures violated section 15(1) of the Charter, declining to exercise its inherent jurisdiction to invoke section 1 in order to protect freedom of conscience and religion. They would be wrong, of course, but c'est la vie.

OC

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