Thursday, January 04, 2018

Is Freedom of Religion Really a Right to Discrimination?

The short answer is "it shouldn't be." The long answer is "no" and spelt out below.

This question is important because people -- particularly but not exclusively self-identifying evangelical Christians -- periodically argue that it is. Freedom of religion guarantees them the right to discriminate against, say, LGBTQi or to reject women's control over their own bodies if, they say, this rejection is grounded in their religious beliefs. Thus, to reject their right to discriminate is tantamount to a rejection of their guaranteed freedom of religion. This is, I will to suggest, an inaccurate reading of this right. Explaining why requires a bit of space.

When the Canadian Charter of Rights and Freedoms was established, freedom of religion/conscience was categorized as a "fundamental freedom." By this, what was meant was the following: matters or issues that were so important that the state should not exercise authority over them. Instead, by virtue of their very import, they should be left -- as much as possible -- to individuals to determine for themselves.

Why are these things important? Various reasons. Some are vital to maintain democracy. Others are vital to the good the life (spirituality, association, expression); what this means is that we cannot easily imagine living a good life without them. If we were, for example, unable to worship how we wanted (which includes not at all), express ourselves in our own voices or hang out with family and friends or the people of our choice, that would seriously damage our enjoyment (the goodness) of our own lives. If we were forced, for instance, to maintain spiritual practices that ran against the tenor of our own views, or we were not allowed to communicate with friends, or we could not visit family members ... our quality of life would suffer and suffer severely. Freedom of religion then -- of conscience -- is fundamental, and this is why it is protected by the Charter of Rights and Freedoms.

But, what does this protection mean?

In my last post, I tried to argue that it would be wrong to construe freedom of religion as meaning the right of men to control women's bodies. Indeed, I tried to suggest that the current debate on this issue -- such as it is -- in the product of the anti-choice side not fully considering the implications of its position, which I think would upset most of them.

The point I want to make in this post is that this conception of freedom of religion -- that I have the right to claim control over others' bodies on the basis of my religion --  runs against the grain of the Charter. Said differently: the Charter was intended to protect individual freedoms; not to aid in the subversion of freedom and autonomy (my right to control my own body). Indeed, it is, I believe, a fundamental misreading of the Charter to believe it somehow protects the right of a man to control a woman's body. Or, guarantees the right to, say, organize institutional discrimination against identifiable groups (say, LGBTQi).

As this applies to religion, this is the pertinent point: the Charter is intended to protect an individual's right to worship as they will, express their spirituality (or, as evangelical Christians say "to witness"), associate with others of the same faith (to be in fellowship, as evangelical Christians say). These are, I  contend, all vital elements of freedom of religion that apply to Christianity, particularly but not exclusively its evangelical bent. Said in different words: the Charter establishes a powerful set of ideas that are supported by the state (necessarily) that are essential for freedom of religion and which are already enjoyed by evangelical Christians (and other faiths).

This is not just a so-called "negative" freedom (that the state cannot interfere with, say, worship) but a series of proscriptions that are elements of the life blood, as it were, of faith (say, fellowship and witness). You don't need to know exactly what these are if you are not an evangelical Christian. You can take it from me that they are important and this is my point: the Charter provides not simply a nifty add-on to freedom of religion for Christians. The various rights it protects as fundamental lie at the core of a meaningful, dynamic, and living Christianity. To be sure, they are essential to other faith perspectives (including, I think, agnosticism and atheism), but it is not those groups about whom I am writing. What this means is that there is good reason for Christians to view the Charter as valuable; not as an impediment to their faith.

I make this point because I don't like, very much, the conflicting rights discourse (say, gender or reproductive rights versus religion) because I don't think it actually captures the complexity of Charter rights or their import. Nor does it provide a full consideration of why a defense of freedom of religion based in the Charter cannot sanction (that is, accept) freedom of religion as meaning control over others or a right to use state money (because in the case of attestation, this is what we are talking about) to build institutions and organizations that discriminate.

The logic here is fairly simple but important. If the Charter is about individual freedom, then it is about my right to determine for myself what is good and valuable, and what is spiritual, in my life. The Charter accords to me (and protects) my right to associate with others who share my views (association and assembly) to express and talk about my beliefs (say in art, on TV, in a blog, with others, etc.), and asserts that the state must protect me in these endeavors. That is, it cannot stand idly by while someone else threatens my rights (say, if someone tries to burn down my church, the fire department puts out the fire and the police arrest the arsonist). This is not what upsets evangelical Christians. They are trying to take this argument one step further and say that it does not matter what I believe if I believe it as a matter of my religion, the state must protect me in that endeavor. And, moreover, the state must provide financial support -- in the form of, say, access to job grants -- to carry out own goals.

On this point, they are wrong. It does matter what one believes in this sense. One retains the right to believe what one will, but the state is not required to facilitate the implementation of that belief. These are two different things. It is one thing, for instance, for someone to believe that women are inferior to men and should be paid less. It is an odious belief but it is one thing to believe that. It is another to use state funding to set up institutions that realize that vision: women's inferiority. We move from belief to practice. However odious a belief is, there are people who will belief it but the fact that people do and can believe odious things does not mean that we are required to fund the realization of that odious belief.

You see the distinction? Let me make it clearer with an extreme example. It is one thing to be a fascist and to believe that some races are inferior and should be deported, etc. It is another thing for the government to fund fascist organizations that are trying to create segregation and deport (or, worse) Jews.

This distinction is what evangelical Christians have not really considered because ... well ... likely because we have actually not had a serious discussion of this matter. Evangelical Christians who reject equality for women and gays and lesbians still enjoy all kinds of Charter protection and there is no move whatsoever to remove these. As I noted above, these include assembly, expression, belief, association. And, the state will protect evangelicals in the exercise of these beliefs (through police and fire departments, etc.). But, the question of whether or not one should receive state funding to build organizations and institutions that subvert the Charter rights of others is an entirely different questions.

This is not an idle question. If the state is required to sustain the rights protections in the Charter -- including the ones I've noted above that are essential for Christianity -- then it cannot be part and parcel of the subversion of those very rights, can it? Put differently: if the state were supporting organizations that were looking to subvert rights, exactly how stable would those rights be? How stable, dare I ask, would any rights -- including freedom of religion -- be if the state were actively involved (by providing financial resources to organizations that reject them and look to subvert them) in their destruction? In my view, if the state were to engage in the subversion of some Charter rights, then all rights would be drawn into question. They would, in this way, stop being rights and become matters of politics or privilege (that is, something that someone else allows you to do). And, on this point, I have some bad news for evangelical Christians: you are a minority. In a political battle about the applications of rights (if that is if rights were subject to politics), you will lose because the vast majority of Canadians disagree with what you think on equality issues. Thus, in my view, there is good reason for you to *not* politicize the rights issue in the name of trying to secure state funding for organizations and programs that look to subvert the Charter in the name of religion.

Let me summarize. The argument that attestation is wrong and religious groups should have a right to discriminate and receive state funding for that discrimination does not hold up to concerted examination. And, it does not hold up because I  (or, anyone) happens to disagree with arguments against attestation, but because it works with a false logic and is ill informed about what rights mean and their importance in ensuring a vibrant and dynamic, in this case Christian, spirituality. All Canadians have the right to believe what they will, associate with others, express their believes (although there is nuance and sophistication required on this point, too), and assemble. These things are all necessary for Christian workshop. Indeed, without them, I don't think you'd have Christianity (this is why Christians in totalitarian states risk their lives to gather together -- it is important for their worship).

But, the fact that those rights are protected -- and they are -- does not mean that the state is required to fund organizations that look to subvert the rights of others. This is not a matter of debate about whether or not I or you or anyone else agrees with those rights. If it were, they would not be rights! A right to be a right must exist independent of mine or your or anyone else's agreement of it. If it doesn't, it is a privilege that can be revoked by someone else and not a right one inherently enjoys. This discussion is not, therefore, a debate about a matter of policy but a consideration of the quality of rights.

On this point, it seems to me, logic is clear. The state simply cannot facilitate the subversion of some rights because (a) the state is required to sustain the Charter and (b) the subversion of some rights establishes a bad precedent that, in fact, calls all rights into question, including those rights necessary for freedom of religion. I don't think anyone wants to see that.
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