Rights, Religion and Same Sex Marriage

Same sex marriage became law in Canada in 2003. The law ensures that gays and lesbians wishing to be married can be – and it allows for religions to opt in or out as they want to without risk of human rights complaints or lawsuits.

Which is not exactly okay, but is an acceptable trade off.

The reason I think it’s not okay is because these same churches rent their halls and spaces to the general public, as well as conducting services for fees. Which means 2 things – they are getting tax breaks, which is from all the public, and they are providing for fee services to the public – and you don’t get to cherry pick from the public when you are providing a service to said public.

However, it’s not like any couple wanting to be married was going to go racing off to religions that are hostile to them to spoil their event with filing human rights complaints. So, whatever, that’s why it’s a sort of acceptable trade off – we weren’t going to go to any of them anyway.

There are some religions that have performed gay weddings before they were legal and other religions who were willing to – in the interests of being as inclusive and loving as their dogma claims they were – perform the ceremonies.

But most gays and lesbians aren’t that keen on religion, there being all this unpleasant history between us.

In Canada, there’s the marriage commissioners. People who provide secular wedding services and who don’t come with religious baggage. They are authorized by civil authority to perform weddings and many couples, gay, straight, no faith or mixed faith uses these services.

Which was why this news item was a bit of a shock to me.

In 2010, in Saskatchewan, a the Minister of Justice, Don Morgan, has asked the court to clarify the Charter with respect to Marriage Commissioners,  as some are refusing to provide marriage services on the basis of their personal religion to gays and lesbians:

“There’s two legal positions,” Don Morgan said Wednesday. “One, the rights of the same-sex couple which are absolute. And there’s also the right to religious freedom. There is nothing in the Charter [of Rights] that indicates one of those should take priority over the other,” Morgan said. “So we’re saying to the court we need to know with certainty which of those takes priority or is there an ability to accommodate both views?”

I am appalled that a Minister of Justice is not able to read and comprehend the Charter of Rights.

The two sections in an apparent direct conflict are:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;…

And

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I believe that there are two additional sections which also apply:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Discriminating against a person is a cruel action that has long lasting emotional, psycological, sometimes physical repercussions on the person being discriminated against. Experiencing discrimination is to call into question your very personhood, your value as a human and as a member of the larger community. It ghettoizes people and groups.

Discriminating against a person or group because of their inclusion in a group adds an additional level of cruelty, as the group identity is generally not a choice, but an innate qualifier of who and what they are.

What’s interesting to me is that many religious groups are very quick to claim that they are the ones being victimized, without any thought to either the historic victimization that their religion has caused or that they are victimizing other groups now.

That gays and atheists exist, are citizens, are people and are entitled to the same rights and considersations as the beleivers, does not take away anything from beleivers. There is not a limited amount of rights going around, there’s enough for everyone to have the same amount.

Religious people do not have the entitlement, freedom or right to assert their religious beleifs on other people. Nor is there any entitlement, freedom or right to not be offended or be unchallenged on those religious beleifs.

A person has the freedom under section 2(a) to choose their religion, however their choice of religion cannot justify stripping another person of their rights under sections 12 and 15.

The other key section of the charter that clarifies the heirarchy and balancing of rights and freedoms is:

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Section 28 is a repetition of part of section 15, which states that everyone is equal under the law. Section 28 repeats that equality ideal with a specific reference to gender.

The key part of this section for the purpose of understanding balancing the rights and freedoms is the first clause “Notwithstanding anything in this Charter” and what this section is guaranteeing – equality.

This section places equality as the highest right – and each and every section specifies that they apply to everyone, every one of us, equally.

Equality is the overriding theme of our Charter of Rights and Freedoms.

Any person who uses their freedom to oppress, discriminate, refuse service to any other person is voilating that person’s Charter Rights.

I find it very peculiar that this is a very clear concept if ther person being denied their rights is a different ethnicity or religion or mental/physical ability than the person doing the denying.

While it becomes unclear and murky when the person denied is a different sexual orientation.

I understand that most religions are squeamish about sex – anyone’s sexual activity really – but no one has a right or freedom to not be uncomfortable or offended.

It is a simple premise that if you are providing a service to the general public, you cannot cherry pick who gets served and who doesn’t.

It doesn’t matter what service sector you are in – retail, non-profit, education, health, manufactoring, hospitality, professional, resource extraction or government services. In fact, especially in government services – which is the sector  Marriage Commissioners fall into – you cannot discrimination – government is for everyone. We all pay for it, participate in it, and are impacted and regulated by it.

You might think that well, the gay couple can find someone else. Which, sure, sometimes you have to phone a few – but being turned down because the person is not available on your day is a lot different than being refused for any day because you’re gay.

Is it okay if that marriage commissioner refuses to mary a couple that’s interracial or mixed faiths because it’s against their own religion?

The person working as a marriage commissioner provides a secular marriage service – often because the people employing them want a secular wedding. Religion, the couple’s or the provider’s cannot and should not enter into the equation.

The couple seeking to be married – whether they are gay, interracial, mixed faith or something else that the commissioner’s religion doesn’t like – has a right to be married, to be treated the same as any other couple and to not be subject to discrimination.

There is no right or freedom to impose your choice of religion or belief on other people.

If a person is unable to meet the professional code of ethics and conduct of their profession because of their religion, beleifs, biases – then they need to find another profession, not attempt to except themselves from their professional code. And certainly not attempt to use the Charter to discriminate against other people.

You are free to chose and participate in the religion of your choice, you are not free to use your religion to harm other people.

The state has often stepped in to take custody of children when their parent’s religious beleifs have threatened the childs’ health and well being – the child’s right to right superceded the parent’s freedom of religious belief.

Whenever freedom of religion has clashed with other rights or state interest, it’s not freedom of religion that generally carries the day. The caselaw in Canada also provides clarity.

Everyone one of us has biases and a degree of xenophobia, but, in order to have a functioning society, we have to leave those at home and conduct ourselves professionally at work. We have to treat everyone equally, or a society as large and as diverse as Canada is stops working. Going back to tribal structures isn’t an option, our civil order and economic interests are dependant on people working together and if not actually getting along or at least tolerating each other, at a minimum, recognizing that everyone around you is a person with the same rights and freedoms as yourself.

Anyone who provides a service to the public is in essence, a public servant. We serve all of the public.

A minister of justice, who is an actual public servant, should see the law for what it is, and it’s about equality.