Tuesday, February 12, 2013

Crandall Redux

I'm missing something.  The respected activist, scholar and professor emeritus at Mount Allison, Eldon Hay (a man I know personally and deeply respect), is writing about Crandall University and the restrictions it imposes on staff. Here is the ling to his recent editorial in The Argosy:

Crandall Scandal Scuttled

For those interested in the issue of religious institutions that maintain moral/behavioural codes that bar individuals from employment if they are gay ... there is nothing new in this editorial. In fact ... and this is what I am missing ... it adds nothing to the consideration of this matter that is already under way and, in fact, makes some serious errors that might mislead those reading the editorial.

So, before looking at this mistake, let me get a couple of issues "on the table." As anyone who has read this blog knows, I fully support equality, same-sex marriage, gay rights, whatever term one wants to use. In the past, I've provided detailed arguments about why everyone should support equality regardless of their religious views. One can accept or reject my position but I'll take it as granted, then, that everyone knows that I'm no raging bigot looking to use some sort of semantic trickery to disguise what is, in fact, a homophobic position. I am, as well, an evangelical Christian and have argued for equality at my church and in my prayer group. I won't review all the arguments I have made but my punchline is: there is no good reason why equality should be denied GLBT Canadians and that many bad things happen as a result of the denial of equality rights. Moreover, in my view, rights are rights: there inhere to the individual and so they are not granted by the majority. Rather, equality rights simply exist and cannot be taken away.

OK, with the punchline out in the open, let me get back to my confusion. Crandall may be an offense to some people. Fair enough (BTW, in the past I argued, as well, that Crandall's theologically based moral code was bad theology, but that is another story). I understand that and agree. If there was an institution that singled out me by virtue of my orientation or gender or ethnicity, etc., and impeded me entrance or circulated incorrect statements about me, I'd correctly be offended and concerned about it. For me, however, the issue with regard to Crandall is not this issue because I don't feel compete to tell someone what can or should offend them. I leave that up to the individual to decide. Instead, in assessing the merits of Crandall policy regarding GLBT Canadians, the issues are different. For some, they are perhaps too academic (to separated from daily life) and for some they sound like cover for bigotry. Again, that is up to you folks to decide; not me.

When I look at this issue I ask a couple of questions.

First, should religious institutions receive state funding? This is a trickier question then it might seem because the Canadian constitution provide for freedom of conscience. It does not provide for a separation of church and state. That is an American principle. In Canada, freedom of conscience means that the state does not interfere with the practice of religion (allowing that there is not a violation of the criminal code). To argue that religious institutions should not be able to receive state funding, then, is to argue that freedom of conscience should not apply. The state should create a religious means test. Those who pass the test (whatever the state thinks appropriate) get money; those who don't are left out. To me, this is a dangerous principle. I don't think the state should be in the business of determining (again within the boundaries of criminal law) what is legitimate and not legitimate religious views. "We will fun the United Church because they are for equality but not the Baptist Church because they are against." "We will fun only those people who have no religion." Are these principles we really agree with? Do we believe the state should make the decision? Before you answer that question, consider the recent CIDA funding scandal CBC News CIDA. Now, we all like it when the government makes the decision with which we agree but in this case, the government was funding an agency that was propagating a dangerous position in a part of the world where gay people were under clear and present danger. But, once we establish the principle that the state should take sides ... how would we stop them? To me, the issue of freedom of conscience is about making decisions regarding funding on the basis of their merits; not on the basis of weather or not I agree with the religious views present. In this case, the religious views enter into the discussion because they are creating a dangerous situation, hence ... serious problems with the merits of the proposal.

What this means for Crandall is this: we cannot simply say "no government money because we do not like your theology." We have to assess proposals on whether or not they have merits and whether or not they are creating problems and dangers for people.

Second, so the second question becomes: does Crandall's statement of faith (or, whatever its called) create a danger for GLBT Canadians? This is a subject to investigate and here we need to be cautious. An institution can create a dangerous, unfair, unequal situation that perpetuates inequality without draconian laws. For instance, if Crandall were denying, say, gay students the ability to get a BEd and become a teacher and this was the only way this student could become a teacher we would have a problem. This would be a case where what Crandall was doing and clear implications for public policy that went beyond the framework of a private institution and some intervention would be warranted. Said differently, the test is not is Crandall propagating hate (this is a legitimate question) but are they involved in policy decision that promote unequal benefit of the law (straights, in this example, favoured over GLBT). What I am trying to establish here is the principle that one need not have draconian Ugandaesque laws for an institutional policy to be a danger or seriously problematic in a way that requires a public remedy.

Is this the case the Crandall? It clearly does not meet the Ugandaesque test but does it meet my lower (but I think perfectly legitimate) one? I'd argue that discrimination may not be grounds alone upon which this test is met. For example, I would not argue that an all-woman social group is violating equality by not admitting men and vice versa. I'd argue that we need to look at the specifics before we went ahead and made the decision. In other words, priviate institutions can legitimately discriminate against other groups of people providing they are not harming those people (again, using my lower standard of harm as legitimate). In fact, I would argue that the constitutional principle of freedom of assembly and association give groups of people the right to form their own groups and to establish, as it were, membership controls on that group.

Now, I fully acknowledge that this principle might seem rather offensive to some people. It is not a principle that I implement in my daily life. The question, however, is not whether I like it or not. We don't want public policy based on what I think. Instead, we need to argue the principle and whether or not the principle makes sense. We may not like exclusionary policies but I would not tell, again, let's pick a different example, an all women's group that they were doing something wrong in excluding men unless there were some other reason (see test above) to do so. Ultimately, whether I like it or not freedom of association and assembly are important to the functioning of democracy. Unless we are going to naively utopian, we have to recognize that the implementation of this principle (in our society today) can involve some level of exclusion. The test is not whether or not it excludes; the test is whether or not that exclusion creates some level of harm.

And, here is where this issue gets even trickier: how does one measure harm. I can feel harmed by the fact that I (Andrew Nurse) have been excluded from some group. In Canada, however, the fact of individual feelings of harm are not usually enough for the state to intervene through the justice system. Instead, the complainant (say, me) would need to demonstrate some level of material harm: failure to admit me hurt my job chances, for example. This was the ground on which men's clubs were challenged. These clubs were not just clubs but places of business. To exclude women from them was to harm create a level of material harm (say, competing for a contract). For Crandall, then, the question might be: does its exclusion of gay faculty and employees create a situation where that person is harmed materially in that their ability to compete for jobs is on the line?

It clearly does at Crandall but, again, a private institution has the right to hire who it wants. For instance, a business should want to hire the best employee, regardless of orientation. Its in that businesses self interest to do so. But, if a business person decide to only hire family members ... well ... that is their right as the owner of the business.

Wow ... I've written way too much. I'll take this bunch of prose to demonstrate that I don't think the issue is as straight forward as Eldon (all due respect) makes it seem. I've suggested that his arguments run the risk of infringing rights we all believe in (conscience, assembly, association) and in establishing precedents that create an intrusive state making choices about who does and who does not get money on the basis of a religious means  test. Or, of intrusion into individual enterprises (somebody's business) where the state can for an employer to hire someone against their will. There is more to say, but I'll leave that for another blog.

As always ... feel free to disagree; feel free to correct my thinking.
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