The Case Against Masks: Or, Legal Challenges Against Covid Restrictions

A number of different groups are launching Charter challenges to Covid-19 restrictions. The challenges are a sign of the politics of our times. According to CBC, a group of current and retired police officers in Ontario are suing for the elimination of mask requirements, curfews, and restrictions on public gatherings on the following grounds (qtd: CBC): 

• Canada's pandemic laws "are not rational" and have "no force or effect." 
• Lockdowns, stay-at-home orders and curfews are "forms of martial law." 
• Wearing masks, social distancing and lockdowns are "ineffective" and "not scientifically or medically based" because they're based on coronavirus cases the legal documents claim "are 96.5 per cent false."

In another instance, seven churches in Manitoba are arguing that public health restrictions circumvent their freedom of conscience and assembly. Again, according to CBC: 

Seven rural Manitoba churches hope to convince a judge that the province's lockdown measures are unjustified violations of Charter-protected freedoms of conscience, religion, expression and peaceful assembly — and that the chief medical officer of health failed to consider the "collateral social and health costs" of locking down society. 

Do these suits have any merit? No and the courts will not find for them. Why? Because these cases are being launched on grounds that fundamentally misunderstand the application of the law and the nature of judicial review in Canada. Let's look at several key points. 

First, in each case the challenges seek to make their case on the basis of philosophy. For instance, they argue that we should take social and health costs into effect when enacting public policy and, because of this, eliminate public health measures. The problem with this contention is that it is actually a bad argument because the second point (the elimination of public health measures) does not follow from the first point (which, loosely paraphrased, is that people's mental health is important). In fact, it may contract it. Said differently, there is a disjuncture between the contention and the legal remedy it seeks to address it. 

How so? Well ...  it is rightly difficult to argue that mental health and the social considerations in which it is based should not be considered in public policy. I think they should be. It is one of the reasons I support public education, increased funding for higher education, and a single-user pay health care system. The problem this argument runs into is that it ignores the social and medical context in which public health measures were enacted. While you may not think this is the case, context is vitally important to the operation of the law. For example, if I aim a gun at someone and shoot them, I have committed murder. If a gun accidentally goes off, I may have committed some other crime but I have not committed murder. If I walk across your lawn for the fun of it, I trespass. If I walk across your law to save a life, I have engaged in a necessary action. Said differently, to argue about mental health and social costs without consideration of the context in which laws have been enacted, the intent of those laws, and their efficacy, is to make an argument in opposition of the operation of Canadian law. It is to appeal to the courts to rule against a foundational element -- the context in which an action takes place is important -- of the law and I find it difficult to believe that they will do that.

Second, this is important because the issue is not that there have been been social costs to the pandemic. To the best of my knowledge, no one debates that there have been costs. The problem for these challenges is this: that is not the issue. The issue is that the government of Manitoba was not dealing with a point of abstract principle. In fact, I'd bet if you were to ask the government of Manitoba if it preferred a different course of action, you'd get a resounding "yes" in response. I'd guess they would say that they have taken public health actions reluctantly and only after considering their full implications as a matter intended to protect the lives of Manitobans. Pandemics, by definition, have social, mental, and physical health costs. These costs are independent of government policies and the problem with the challenge is that mis-ascribes the root of the mental and social costs it seeks to address. In other words, it suggests that policies protecting the health of Manitobans are at fault and not Covid-19. The government of Manitoba made the decisions to accomplish specific aims: it was dealing with people's lives and making a sincere effort to protect those lives. They determined, as did btw every other responsible government in the world, that some measure of temporary restrictions were necessary to do the best to protect lives, particularly of those who were most vulnerable. The legal issue is not "do restrictions create issues for people's mental wellbeing?" The issue is: "was this course of action justified in the circumstances as a temporary measure designed to protect lives?" I may, personally, continue to not like those restrictions but that does not make the unconstitutional. 

I want to draw specific attention to the temporary character of public health restrictions. In most provinces, restrictions are implemented for a fixed period of time and must be renewed. If they are not renewed, the cease to have force and effect. I initially found this continual renewing of restrictions annoying (yes, we know the border is closed and we know it is going to be closed for a certain length of time ... why do you keep renewing this agreement?) until I realized that this was the point: this measures are not permanent restrictions that will have permanent force and effect. They are temporary measures designed to deal with an emergency situation in which that, by definition, requires unusual actions. And, as a result, they need to be continually re-assessed in order to ensure that they are temporary. 

If we think of public health measures in this way, the argument being made by the Manitoba churches seems rather odd on a philosophical level as well. What we are talking about is not a defence of freedom of conscience (religion) but an argument that says my religion is so important to me that I am unwilling to accept temporary limitations that could save others lives. I don't believe this is the statement these churches intend to make. Indeed, I think they believe that their actions will have no social or health effect (which is also odd for an argument that is premised on recognizing the importance of social issues). What I am saying is that when the courts assess this issue, this is a consideration that will weigh on their assessment: to what extent can the government take limited and temporary actions that are designed to prevent potentially broad case deaths in society?  Is it ethical, I think the courts will ask themselves, for us to open the door to actions that endanger lives and in a way that will necessarily fall unevenly across the population. The most vulnerable members of society will, as we have seen, pay the highest price for a lack of public health measures. Removing public health measures, in this way, creates an uneven danger to others. I find this difficult to believe the courts will accept. 

The final important matter to consider is the empirical basis upon which these challenges rest. The fact that every respectable medical professional and scholarly assessment of the pandemic supports public health measures is important. The courts decide matters on the basis of law and particularly as it pertains to the constitution, there is an element of philosophy embedded in the decision making process. The constitution, after all, is not simply a division of powers or a set of higher laws but a statement of ideals and aspirations. This said, courts also connect decisions to evidence. Evidence is, in fact, particularly important to the operation of the law in Canada. Said differently, I cannot simply make an argument to the court and say "in my view this is the right argument. It accords with my ethics, so you should find it legal, or illegal, as the case may be." Arguments must be based on evidence (and, in some cases, reasonable probability, which is way of projecting evidence into the future).  

This may be why the Ontario police officers and retired officers use an elevated rhetoric to try to make their point, alleging that public health measures are ineffective and amount to martial law. Both contentions, however, are not matters of opinion but empirical points subject to analysis and research. If you believe public health measures are ineffective, I actually think that there is little that I can say to change your mind. But, the issue is not your mind, nor for that matter mine. The issue is what can be empirically demonstrated in a court of law where personal opinions are not what is taken into account. Here, the issue will not be one of finding a single "authority" who disputes public measures, but finding a qualified individual who can interpret a mountain of evidence that all points one way. As anyone who watches TV can tell you, most medical officials believe that public health measures in Canada did not go far enough or fast enough. To the best of my knowledge, there is no credible recognized authority or scholarly study that contends anything different. 

I might make a similar point about freedom of conscience. To what degree have religious freedoms been limited by public health measures? My church went "online" early on and my church's local governing body has urged us to not simply follow restrictions but to be one step behind the government. They believe that this fulfills the Christian requirement to love your neighbour and that this is more important than an individual's ability to go to a building. In fact, if you think the building you go to is your church ... you and I have very different understandings of the word "church." We found that our "attendance" increased with the move to online services. Far from limiting our ability to communicate, the response to the pandemic naturalized the use of technologies that we were otherwise slow in adopting and drew in a different audience. My point is not that this is for everyone, my point is that if you look at freedom of conscience as an empirical question, it is difficult to content that public health restrictions limited it. 

Likewise, if you believe that being asked to wear a mask is the same as martial law ... I'd recommend you ask someone who has lived in a country that has been under martial law. Habeas corpus, I will note, has not been suspended, military courts have not been created, and legislative assemblies have not been suspended. As I write this, in fact, I have just returned from voting in a municipal election. The hallmarks of martial law are simply not evident. In place of them, what we have is a confusion. Some people seem to feel temporary health measures which they dislike are the same as the subversion of democracy. And, they just aren't. 

A final note: my point is not that all has gone well in the Canadian response to Covid-19. It hasn't and this is well documented as well. A court challenge, however, is not about things that have not gone well. It is not about trial and error in public policy in response to a rapidly changing situation. Instead, it is about whether or not specific laws are unconstitutional and unconstitutionality is something other than disliking a law. What these challenges do is try to make that equation. Whether intentional or not they are built on confusion, a failure to understand basic features of the law, and empirical errors. For a constitutional challenge, this is not a good mix. 

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.

Saguenay, or Freedom of Religion and Belief

I've not had the chance to review the recent Supreme Court decision regarding prayer before city council meetings, but you can find a copy of it here. Like most legal decisions, I'd suspect that the devil, as it were, is in the details. Reporting on it has been generally vague, but you can find more news coverage: here, here, and here. Some of the coverage (all of which basically says the same thing and little of which reviews the details of the decision), makes this decision out to be significant. I am not at all sure. It is significant and vitally important for some people. For instance, those who see organized religion as a serious problem and a pressing threat to their freedoms will be, I think, very happy with this ruling. Conversely, those looking to find some way to maintain Christianity's historically privileged position in Canadian society will view this decision with chagrin. I ultimately suspect this ruling may not be  quite as significant as people think it is, or that its importance is largely symbolic, but I'm going to hedge my bet. I'm going to argue that this ruling is both remarkably important and not really that important at all. I want to discuss it because I think it fits well with the general narrative I have been trying to work out in this series of blogs about what I'm calling a "post-Christian Canada," or the evolving relationship between Christianity and the Canadian state and civil society.  The burden of this blog is to explain these perspectives by setting them in the context of this historical transition.

Why is this ruling not that significant? Significant might not be the right word. Obviously, the SCC thought this issue was legally and constitutionally important, or they would not have heard the appeal. And, to the individual who brought the original case forward and the Quebec Secularism Society, this ruling can be construed as nothing short of a victory. The message is pretty clear: local governments cannot force citizens or elected representatives to participate in a prayer that relates specifically to one religious perspective or another before a meeting. Doing so, discriminates against those who do not hold to that religious view or who hold no religious views at all. In short, forcing prayer on government or people creates an entrance requirement, as it were, the burden of which falls unevenly across the population. As a result, town and city councils cannot include specific opening (or, one assumes, closing) prayers as part of their agenda. This ruling, as one of the stories I've noted above suggests, is not simply about religion but about "freedom from" religion; that is: it is not the state's business to sustain or support or maintain one religion to the exclusion of others.  More pointedly and more exactly: the state must respect the rights of those who do not subscribe to any religion and a failure to do so is *not* constitutionally acceptable. According to news stories, a number of other municipalities are examining their open ceremonies, as it were, as are at least two provinces.

There is something more in this ruling as well. The City of Saguenay, or their mayor, tried to use a particular defence in order to preserver prayer before its council meetings. The defence went something like this: even if there is some manner of discrimination in reciting a specific and evidently Christian prayer, while making evidently Christian symbols (the cross) does seem to favour one religious perspective over others, this is OK because Christianity is part of Canada's history and heritage. Thus, even if there might be problems with regard to freedom of conscience, specific rituals that reflect religious practices can be maintained if they are part of national, religion, ethnic, or linguistic heritage.

This is an interesting argument that deserves a fuller treatment than it has so far been accorded. It is interesting in that it smack of the same stuff that the so-called "secular charter" (ironically) was made of. Those supporting the secular charter in Quebec suggested that Christianity would be exempt from its requirements because (a) Christian symbols can be worn rather ... what small-ly --  and not in a disruptive way and hence are not the overt threat to secular values as is, say, veiling for some Islamic women, and (b) at least some Christian symbols are exempt from the secular charter because they are part of heritage. Their importance, in other words, is not religious but historical. This being the case, they do not pose -- in themselves -- a threat to freedom of conscience or belief because they are about our fidelity to the past; not to a specific spirituality.

There might be something to this argument. I'd need to think about for a long time or someone reading this could explain it to me in the comments sections. But, it has always struck me as so much semantics. Why? Two reasons: (1) symbols never convey a singular meaning. One cannot read a cross *just* as a symbol of the past. It is always already a symbol of Christianity and to deny that reading is engage in a shockingly simplistic level of analysis. (2) It is reading the symbol (in this case a cross) from a specific perspective. Exactly what we might call this perspective can be a matter of debate. I'd say it is read from a semi-Christian moderately secularish-type of perspective. From the perspective of a person who may or may not attend church but who does self-identify as a Christian even if that self-identification is complicated by other things and honoured in the breach. The precise details of what I am saying are beside the point because the real point is this: it does not read the cross as a symbol of heritage from a non-Christian perspective. From a non-Christian perspective (even those perspectives that respect diversity, etc.), the cross is a Christian symbols that marks space in a specific way. The defence of religion as heritage, in this sense, tried to avoid reading the cross (or, other Christian symbols such as prayer) from non-Christian perspectives in order to assert their validity as heritage but not religion. This type of reading is both partial and antithetical to a diverse society.

And, this gets us, I think, to the real importance of this ruling. In effect, it says "no, you cannot use this type of logic to smuggle Christianity in through the back door." And, you have to read symbols from the perspectives of people other than those in whose name the symbol speaks. This ruling was about prayer and not about the cross (and, this is so for interesting legal reasons). But, the point is the same. Said differently, the courts have closed off one line of argumentation that some people had used to try to maintain the symbolic privileged presence of Christianity in the Canadian public sphere.

Should we be glad about this? That is a question I will leave off for another day because there are still other important issues that we should address. If this is the historic importance of this ruling, we should also be clear about what this ruling does not do. I'll likely take the time to go over some picky legal details at another time (because those picky legal details are important). Let me focus on the big issues. First, and most importantly, this ruling does not actually bring with it any significant changes in practice other than for a few towns and cities. It is part of a transition -- part of an historic process -- and not the cause of the process in itself. It attracts attention (and, rightly so) because it is a SCC ruling, but it does not either advance or detract from the right to practice one's religion or lack thereof. I suspect, in fact, that few people will notice the difference. I honestly don't know whether or not Sackville, NB (the town in which I live) opens its meetings with a prayer. Private institutions (clubs, churches, the range of social services supported by churches, universities) can maintain whatever rituals they want to maintain. That will be an internal debate. Schools in NB at least don't have prayer; few business that I know do; nor are families affected in their daily devotionals (or, lack thereof). Important public rituals -- say, Remembrance Day -- will, I am certain -- remain unaffected as well.

Said differently, this ruling makes an important statement but it is a statement that will have a limited affect on most people's lived experiences. Why? Because religious freedom is already so widespread and, by-and-large uncontested, in Canadian society. I suspect that most of those people listening to the town prayer in Saguenay were ignoring it anyway (it was, after all, what, only 20 or 30 seconds long?).  I can, for instance, and I suspect you can too, go about my entire day and not really notice anything religious. Leaving aside the things I do myself, my workplace observes no religious rites, we have no special ceremonies before meals or meetings, no one comes in my door to get me to prayer, there are no dietary restrictions, no symbolic hand washing, nothing. I know we use a Christian calendar but how many people really worry about that or even know about it?

I noticed that I often end blogs by saying "there is more to say on this subject" and this ruling is not an exception. In the interests of length, however, I'll end here and pen a bit more another day. Let me summarize, this ruling is important and not. It does very, very little (as far as I can tell) in changing the overall balance between church, state, and civil society in contemporary Canada. But, it does cut off one line of in the defence of Christianity: the Christianity as heritage argument. It will change the practice of open council meetings at some towns and cities in Canada but I suspect few will notice those changes and they might, as I'll intimate later, be less "out there" than we might think.

Rights and Rights

Who can object to freedom of religion? In fact, to do so makes one sound like something more than a bit of a jerk. It makes one sound backward, almost like a dinosaur … in fact, was not freedom of conscience one of the objectives of the democratic revolutions that swept Europe and the Americas between the late-eighteenth and mid-nineteenth centuries? To oppose freedom of religion makes one sound almost … well as if one were a supporter of the inquisition, as if one were about to try and burn heretics. In this sense, the opposition to Indiana’s supposed defense of religious freedom might sound odd to someone who has not paid close enough attention to it, who has not followed the debates about the boundaries between state and church in the US, and the degree to which religious folk  (usually, but not exclusively Christians) can define the framework of rights for that country.

I want to be clear from the state: the Indiana law -- or similar laws implemented in other states -- is not a defense of freedom of religion. That right was already specified in the US Bill of Rights. It was, in other words, part of the constitutional guarantees (along with free speech, the right to bear arms, etc.) that comes with being a US citizen. In enacting this law, the government of Indiana did nothing to further protect freedom of conscience or belief and, I will argue, a great deal to corrupt it through an overt and misplaced politicization of term. Passing this act is the equivalent of PEI passing a law that says “we are now making it illegal to murder people.” It already was, one would say, this law is a waste of time.

The trickery inherent in this law is only one problem with it. The most serious problems – evident by the backtracking we’ve already seen from Indiana lawmakers – is the way it confuses conceptions of rights and what they mean. I’ve tried to blog on this in my last entry but let me elaborate this point and add in some other comments.

The second problem, then, is the confusion of rights. Here, we need to ask “what are rights and why are they important?” The answer to this question is, in fact, complicated because it depends on the type of society in which you live. In stratified societies (say, like feudal societies) rights adhered differently to different people depending on their place in the social order. Thus, a lord had different rights than a peasant. There are also traditional rights that adhere, for instance, to indigenous peoples. In some societies, members of different religions have different rights. In some societies, for instance, the state enforces laws based on specific religions (but not others). What counts as a right, then, in legal terms if conditioned by the society in which you live. We can – and I would argue should – assert the legitimacy of universal rights that meet basic standards of decency and freedom. I assert that point as an ethical principle to which I (and, I suspect, most people) subscribe. But, in practical terms – in terms of the rights that citizens actually have right now – those are dependent on their society and what their government recognizes.

Not all societies recognize freedom of religion. Some societies have and continue to have established religions that are supported by the state. Adherents of other faiths do not have the same rights as adherents of the state-supported faith. They may have restrictions on their worship, suffer from prejudices that go unaddressed, have to pay special taxes, be forced to live in certain sections of town, etc. None of these things are historically unusual, even if I (to say this again clearly) disagree with them.

The conception of right that we use in Canada and the US today is not like this. Even if it honoured in the breach (and, it clearly has been), rights supposedly adhere (in our societies) to individuals by virtue of their individuality, humanity, and citizenship. Thus, a rich person has no greater right than a worker; a Christian no more rights than a Jew; a man has the same rights as a woman, etc. We subscribe, in other words, to an ideal that all citizens enjoy the same rights and that is, or so we are often told, what makes our societies more democratic and fair.

This, however, creates problems for a variety of reasons, some of which are well documented and we don't really need to discuss. One problem it seems to create, however, is what is periodically referred to in the media as a conflict of rights. What happens when my right conflicts with your right? Who gets to win out? What is more fundamental?

This is the wrong question. Conflicts of rights occur far less frequently than we might think. In Indiana, for instance, we don't have a situation where there is a conflict of rights (freedom of religion versus equality) at all. What we have is a failure to understand what freedom of religious means.

In Canada and the US, freedom of religion is not the right to discriminate. You have the right to believe whatever you believe but your right to enact your belief is bounded by the degree to which it affects other people. Thus, for instance, you might believe that the Bible justifies the slavery of Black Americans. I'd disagree with you, but there were people who believed that. Even if you believe this, you do not have right to enslave anyone. Likewise, your religion might call for human sacrifice. Sorry, you are out of luck. That is a crime and you can't use freedom of religion to justify it or get away with.

Here is the rub. Even if we don’t like what people believe, they can believe it. They have that right. But, the fact that you have right to believe what you will does not mean that you have the right to do whatever you want, however sincerely your beliefs are held. My right does not extend to the oppression of my neighbour because my neighbour – in a democratic society – enjoys exactly the same rights I do.

What has gone on in Indiana and a number of other states is that this basic and simple understanding of what constitutes a right and the reasonable limits on it has been lost. In the name of Christianity, the government has enacted a law (which it is not supposed to do, of course, because the principle of the separation of church and state in the US) that allows Christians to discriminate against other people. In other words, it accords to one group of people the right – protected by law – to harm another group. This is a violation of the basic principles of rights in a democratic society and it is, I want to say this clearly, a step away from democracy. Rights are intended to enhance democracy in our society; not limit it.

If freedom of religion is not the right to oppress, marginalize, discrimination against other people … what good it is? Actually a lot. Rights fall into a number of different categories and accomplish a number of different goals. I probably go on too much about this in my courses so I won't here. But, freedom of religion is, oddly, designed to protect citizens from precisely the type of law that Indiana has enacted. It is designed to protect people from a the state enacting laws that favour some religious perspectives over others; that treat different people differently on the basis of belief. IOW, religious freedom is intended to ensure that what has happened in Indiana does not happen: that the state should not be, as it were, “in bed” with religion.

I’ve gone on too long so let me summarize. Several points are important:

• the freedom of religion law that Indiana passed is not needed because freedom of religion is already protected under the US Bill of Rights
• the law is actually not about freedom of religion but instead about providing legal sanction to discrimination on the basis of religious views. Generally, when the state shows favouritism to one group of people as opposed to others, we view this as non-democratic and, indeed, Indiana has taken a step away from democracy
• there is a level of misreporting when people talking about a conflict between rights (religion v equality). There is no conflict because in democratic societies all citizens enjoy the same rights, ergo one citizen does not have the right to oppress or marginalize another and assert that this is their right. Other non-democratic societies (theocracies, feudal states, for instance) allow or allowed this. Democracies do not. It is not that one right is more valuable or important than another; it is that each person is of equal value. 
• Freedom of religion is, ironically, intended to prevent precisely what the government of Indiana has done. It is designed and intended to stop the state from showing favouritism so that citizens are equal. In this way, Indiana has perverted the very right it claims to uphold. 

The real problem, I think, with perverting the law and conceptions of right in order to justify what is, in fact, prejudice, is that just about everyone and their dog can see through it. No one seriously believes that Indiana or Arkansas is trying to protect freedom of religion (because, as I said, this right is already protected and no one actually believes that their legislatures and executives are that dumb as to not understand that). Instead, what they see is that overt prejudice -- overtly making the argument that gays and lesbians are perverts or second-class citizens or criminals or mentally ill or despised by God -- is not politically feasible in America today. These arguments have become unacceptable to large and growing sections of US public opinion. Hence, what Indiana and other states have reverted to is prejudice by stealth: they are trying to find a way to maintain legal injunctions against gay and lesbian Americans after a slate of court rulings that say "no you cannot do that. It contravenes the Bill of Rights." 

Hence, the deception but I wonder if the deception does something further. I wonder if it makes people doubt the sincerity of politicians. After all, here is a case where language is clearly being twisted for ulterior motives. If the people who run the state will do this (will, in effect, try to deceive the public) ... what does that say, some people might ask, about politics? What does it say about those who win elections? Who are supposed to represent the citizens and the state? Who are supposed to have a degree of dignity and grace. 

I think, ultimately, it creates more political alienation ... and that is not good either. 

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.