Naming Bigotry or Sharia Law Comes to Indiana

There is good news and bad news for those of us watching the American state of Indiana after its recently passed law that makes it legal to refuse service to GLBT on the basis of one's personal beliefs. Oddly, this is very similar to what Christian doctors and dentists are asking for in Canada. If their views happen to infringe on who you are, some group that describes itself -- shakily I might add -- as "Christian" is claiming that they can deny you that right. Oddly enough the issue also turns around sexuality and sexual identity, which might be the subject for a more sustained analysis than I can give to it.  The bad news is that the law passed. If you are gay and walk into a restaurant in Indiana, the staff can say "leave, you're gay. It is legal to refuse to serve and we are." The good news is that just about everyone and their dog dislikes this law. Charles Barkley and Reggie Miller -- two individuals who have been hardly known for their politics -- have made strong statements against it. Likewise, a number of large corporations, some cities, and NFL have issued statements in opposition. The NCAA has noted that it may move its events out of the state if this law persists. I don't know whether they will or they will not but I am heartened to see groups and individuals politicizing around this issue. You can do far worse than stand up for equality.

What I'd like to do in this blog is a number of things. I have been writing a series of blogs about the current historical juncture at which Canadian Christianity finds itself. This issue is peripherally related because, as I just suggested, it is, in effect, what a group of doctors are trying to do in Canada. They are claiming that their religious freedom gives them the right to deny care to people on the basis of their personal views. What I'd like to do is the following:

1. Acknowledge that the Indiana law (one of a series that have been brought forward recently in the US) is in the US. Hence, it is likely not my place as a Canadian to say anything about it. I would, however, like to say something clearly and unequivocally as a Christian.

2. I'd like to suggest that this type of law is odd in the sense that it does legitimize prejudice under the rubric or freedom of religion, which was never the intention of freedom of religion laws or embedded constitutional rights, at least in Canada. I do not think it can be upheld upon court challenge if such a law were to pass some legislature in Canada and I'd like to explain why. Hence, I am also say that the suppose Christian doctors who want to deny care are not going to win their case.

3. Finally, I want to make a note of what this kind of case suggests or implies for Canada.

First things first: I said this is a previous blog but Christian is not about defending one's personal values. Indeed, Christian is about challenging those values. It is not about asserting that one is more moral or right or proper than another person. If you doubt me ... read some scripture. It is not about imposing a morality on society or claiming that society should follow your morality. In other words, I am deeply concerned that Christians are using God to justify their own prejudices and I don't think this helps our case at all. In fact, it makes us look like a bunch of bigots who have no time for people with whom we have personal disagreements based on *our* values. It is the wrong approach and one that Christians should reject. Christianity is about many things. I'd like to believe that is about love, relationships, care of the other, putting God first in one's life, and other things. But, it is not about bigotry or helping to defend or justify bigotry and it is never about providing the state with a religious rationale that justifies or upholds the marginalization of others. It is about breaking those bounds; not drawing the line tighter. We need more Christians to stand up and deny this law. We should not let someone justify their bigotry with recourse to God.

Second, that said, as I was thinking over this issue this weekend, what struck was the similarities between this law and the proponents of state enforced Sharia law in Canada. In Canada, a few years ago, we had a big (overblown) to do about whether or not the state should enforce Sharia law for the Muslim community. That debate still awaits a detailed and sophisticated analysis. Only a very small number of Muslims with more extreme views supported this idea (the state enforcing Sharia law) but it triggered a broad debate in the public sphere, the conclusion of which was this: the state should not enforce private religious beliefs. It is not the state's job to impose religious views on society by making them part of a public legal system. There was broad and deep agreement on this point ... when we were talking about Muslims.

Interestingly, when it comes to talking about Christians ... people seem to stop disagreeing, at least so vehemently and they stop using the same argument. Instead, the tenor of the debate shifts. We are no longer talking about the state enforcing religious law but about a person's religious freedom. In other words, the principle is the same, even if the discourse is different. I'd argue the same point, though. If the state should have no truck or trade with Sharia law; it should have no truck or trade with Christian law.

The argument about "religious freedom" is made to seem a bit more palatable because it sounds like we are defending a freedom: the right of a person to practice their religion. But, by that raises a very slippery and dangerous question that was fully discussed in Canada with the debate over Sharia law. One of one's religious freedom requires the subjugation of others? Can they make that case? Is that not, in fact, one of the aspects of the life under the Taliban that we (Canadians and Americans) supposedly opposed? The exercise of religious freedom required the subjugation of women. Neither the governments of Canada nor the US accepted this and, in fact, used it to defend the military action against the Taliban.  Refusing to serve someone a sandwich may not be the same thing but the principle is the same, is it not? Where my freedom of religion runs up against someone else's equality and freedom ... their equality and freedom must go.

The problem with this situation, of course, is pretty obvious. It does something much more than smuggle prejudice in through the back door. It drags it right in the front door, in full view, and sets up two standards. One for straight people; one for gay people. The law, in other words, falls unevenly across society and affects different people in different ways.  And, this is the primary resource that I do not think that Canadian courts will ever accept this law or some variant of this law.

The Canadian Constitution (the Charter, in particular) guarantees Canadians something that the American Bill is a bit uncertain of: equality before the law and equal treatment of the law. I'm not trying to shoot the US down here; I'm trying to highlight a difference between Canada and the US. In the US, there is clearly a constitutional guarantee to equality. This has been the ground on which US courts have struck down laws banning same sex marriage. A right one person enjoys under law cannot be denied to another person. Canada goes further. We have the same principle (coming out of the same legal heritage) but we have a guarantee of equal benefit of the law.

What does this this mean? Years ago, when gay and lesbian Canadians first campaigned for equality in marriage, the crown mounted a rather interesting defense that was, briefly, accepted by the courts. It went like this: a prohibition on same sex marriage is constitutional because gay and lesbian Canadians have the right to marry and it is the same right enjoyed by straight people. They just have to marry someone of the opposite biological sex. Hence, because a gay man can marry a woman (for example) ... his right to equality is satisfied.

The Canadian constitution and jurisprudence no longer accept this patently silly argument because it still upholds prejudice. Straight Canadians have the right to marry who they will (everything here, by the comes with the proviso "provided they are a competent legal adult") but gay and lesbian Canadians do not. The courts quickly recognized this as the crux of the matter: benefit of the law was falling unevenly and falling unevenly in a way that confirmed already established unequal power relations in society. It served to marginalize already marginalized groups and confirm and reinforce the power of groups that were already power. The right to equality had, in other words, stopped being a right to equality and had, instead, become a mechanism through which the state helped to guarantee, maintain, and enforce inequality based on some people's personal views. The courts in Canada, rightly, said "this is not the purpose of equality provisions"

Because the US lacks the same commitment to equal benefit of the law in its constitution as Canada maintains, I suspect that it will be more difficult to eliminate laws that maintain prejudice. It took a long time to eliminate laws that discriminated against blacks, for instance, and I suspect that it will take a while for US courts to make a clear ruling against bigotry. In Canada, I suspect the courts will make that statement early. In other words, the US situation should not be the Canadian situation and this is not just wishful thinking on my part. The differences in the constitutional guarantees of equality are significant enough and nuanced enough that it should be difficult to use the law to enforce private religious views.

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.