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.

Freedom of Religion, Sexism, Reproductive Rights

A key issue for some evangelical Christians is attestation. What is that? It is a new policy whereby organizations that receive federal summer employment grants -- these are to hire students over the summer -- must agree to that they support the Charter of Rights and Freedoms.

Here is the precise wording:

"CSJ applicants will be required to attest that both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression."

You can find the larger description here. Some of my friends who are evangelicals are reading this as a direct attack on their views and on freedom of religion. In New Brunswick, this issue has popped up in the past -- on the provincial level -- with regard to state funding of post-secondary education and, in particular, the fact that students attending Crandall University do not qualify because it is a private school that maintains a faith-statement commitment.

The problem -- for at least the people that I have seen comment on this -- is that some evangelical Christian organizations believe they cannot attest to this statement because of their religious believes but rely on job grants to run, in part at least, their summer programs. I don't believe my church applies for federal grants (I'd need to check that one out) but they do apply for provincial grants and hire high school/college kids to run summer camps and the like. Are they right? Is this attestation requirements a threat to freedom of religion?

I will confess that I am not sure. I don't think it is, but I'd also like to argue that there is some room for discussion and that there should be.  The issue, in other words, for all concerned might be more complex than we allow. They issues are "reproductive rights" and "sexual orientation or gender identity or expression." Some evangelical Christians see themselves as ardently anti-choice and opposed to anything but hetero normative and patriarchal gender and marriage relations. Others -- a larger group, in my opinion -- would not make an unqualified statement on either of these points, but argue that individuals retain the right to hold views regarding reproductive rights and gender identity and *not* suffer discrimination for these beliefs. All, they would argue, should enjoy equal *benefit* of the law.

I want to come back to this point -- equal *benefit* of the law -- because it is an important standard that is often neglected in consideration of equality issues. I should begin by saying, however, that I find it very difficult to speak about reproductive rights, as a man and this is the key point that I want to make today. My general view is that this is an issue in which there is an unequal burden, as it were, and that unequal burden creates a necessarily unequal authority to speak on the subject. I want to be clear: I am *not* saying that men should not speak on this issue but that the weight of authority must necessarily rest with women. A man cannot, quite simply, claim an equal right to a woman's body.

This is a point that I don't think enough evangelical Christians have considered because they have gotten so used to debating the merits of abortion and choice. I do think that the issue of children affords evangelical Christians many opportunities to be constructively involved in the world. I am not certain that forcing often young, poor, marginalized women to bear the burden of someone else's ethics is, however, one of those constructive ways. There are children to adopt, poor families in need of assistance, food banks that will nearly run out of food sometime shortly after Christmas, school supplies to be bought, access to minor sports and music programs to be provided, and a range of other things. There is tutoring and mentoring and driving (which often takes two people owing -- rightly -- to new regulations about ensuring that no one adult has supervisory control of children who are not there own). I recognize that many churches are involved in these things right now. Mine is. But, my point is this: there is no shortage of ways to be active in the world in support of children and families. There is poverty and need and  loneliness that can and should be addressed right now, as I write and as you read this. But, whether or not this extends to control of another person's body is not at all clear to me.

Let me unpack that sentence a bit more. Childbirth and child raising are difficult, time-consuming tasks that challenge who we are as people.  Men do not have to experience pregnancy and childbirth and will never experience these things first hand. Hence, to say that a man -- any man -- should have an equal voice in reproduction is theoretically interesting but in practice *must* confront a stark reality. I am a man. The price of my having a say on this issue, or even a determining voice, is born by someone else. I will not have to be pregnant. I will not have to give birth. I recognize that there is an unequal burden to child care, as well, on a macro scale but let us leave that off because there are a lot of exceptions.  The issue that we have to address is whether I get a vote on what someone else will do with their body? If we were talking about two men and one man controlling what another did with their body for, say, nine months ...  would we even be having this discussion? I deeply and fundamentally doubt it.

This is what I mean by someone else bearing the burden of my ethics. For me to say "see I have done the right thing," I, as a man, never have to address the implications of me feeling that I have done the right thing, if I so choose. Other people do, and they will not get that choice; often people I will never meet, never know their story, never understand their circumstances, never share their aspirations or cry with them for the things that have gone wrong in their lives. In other words, I not only claim control over their bodies, but over the bodies of women I have never met, will never meet, and will not ever try to understand what is going on in their lives. I will make up my mind on the basis of what I think is right and without any regard for them, their circumstances, the child for which they will care, the choices they will have to make, the heartache and pain I can bring to them.

And ... make no mistake about it: this will not *only* be one person controlling another's body. It will be control exercised through the state. What those who oppose choice seek to do is make it illegal for women to have abortions. This means that the police, the courts, even the medical profession will be used as instruments to control the choices women can make with their bodies. This is not an abstract, Philosophy 101, debating club type of discussion. This is a discussion with real implications: women being arrested and forced against their wills to have children. I really wish I were exaggerating but before anyone accuse me of doing so, let me ask you a few questions: what do you think will happen if abortion becomes illegal? What do you think the word "illegal" means? Who do you think enforces the law?

I will need to come back to this issue -- and it might not be a bad thing because I've blogged way too much on freedom of speech so perhaps I should address another issue -- but the first problem that evangelicals need to address is not their supposed right to their religious beliefs. And, this is the key point I want to make. I think this issue is miscast as a freedom of religion issue. I support freedom of religion. Indeed, I think spirituality is just way too important to allow anything but individual freedom.

But, I am less than certain that my freedom of religion is the same as to my ability to control someone else's body. Is this actually what those who argue for freedom of religion mean? Is this their definition of freedom of religion: the right to use the state to control other people's bodies? Thus, rather than asserting a right and demanding equal treatment on its basis (which might be fine; we will come to that in the future), I'd argue that evangelical Christians should, as it were, "go back to the drawing board." Pause in their certainty that they know what is right and that they are acting according to the will of God, consider their options, and think about the implications of the rights they are asserting. Phrased in the way I just phrased it, you can see the gender bias inherent in the assertion of this supposed freedom of religion. Evangelicals -- including myself -- need to ask: is this really what we want to do? Legitimize men's control over women's bodies? We've had that in the past and there is far too much of that in the present. It has not worked well and that is why the advocates of equality want to get rid of it. Is this really what we mean by freedom of religion: the right to have men force women to have children against their will?

I'd argue, no.