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Human Rights Conflict: Religious Freedom and Same-Sex Marriage

Which is more important? Should sexual orientation take precedence over religious freedom, or the other way around?

The second in a periodic series taking a brief glance, maybe with a slightly different perspective, at topics that have been covered in the past reflecting on how they affect us today.

"The sky didn't fall, did it?" This is one of the questions I was asked when invited to participate in a televised panel discussion taking a look at "same-sex marriage after the debate." No, the sky didn't fall. But there have been repercussions, negatively impacting businesses, charities and people in the helping professions across the country.

No human right is more important than another.

The Knights of Columbus, a Catholic benevolent organization, spent a small fortune on legal fees to defend against a human rights complaint after declining to rent their hall to a lesbian couple for their wedding reception.

A marriage commissioner has been forced to defend himself from a human rights complaint. His crime? He referred a gay couple to another marriage commissioner to have their wedding ceremony performed because his own religious convictions would not allow him to do so.

Several marriage commissioners across the country were forced to resign when ordered by government officials to perform same-sex marriages or get out of the business. One refused to resign and instead filed a human rights complaint against the province of Manitoba after being ordered to turn in his commission. The reason he held a commission? He has a Christian ministry to the biker community. He believes the government's request is a violation of his freedom of religion. By the way, marriage commissioners are licensed but not paid by their respective provincial governments.

These are only a few examples of the fallout resulting from Canada having hastily engaged in a social experiment with one of its cornerstone social institutions, marriage. Individuals and organizations are paying a price to assert the rights granted to them by history and recorded in law. Some have referred to this phenomenon as the same-sex marriage backlash.

"This is a human rights issue," is the point usually proclaimed by whatever individual or group is asserting a position in opposition to freedom of religion. Accordingly, what is said and written in the media pertaining to same-sex marriage has frequently been a statement pitting the "human rights issue" of equality for gays and lesbians against religious beliefs, declaring the human rights of this or that individual as against some unseen institution.

The truth is, Canadian law accepts this as a human rights issue. Freedom of religion is recognized as a human right under international law, in the Canadian Charter of Rights and Freedoms and in all human rights legislation in Canada. Freedom of religion is recognized as a human rights issue on the basis that the capacity for religious belief is found with individuals, not institutions, i.e. the faith of an institution is only the faith which is held by the individuals who comprise that institution. (Although, there is valid legal argument that religious institutions have a faith identity that cannot be reduced simply to the beliefs of their individual members.)

In 1995, the Supreme Court of Canada affirmed sexual orientation as an additional human right in Canada by interpreting the equality rights section of the Charter, which already included freedom from discrimination based on religion, to include the analogous right of freedom from "discrimination based on sexual orientation."

So which one is more important? In a ranking of Canadian human rights does religious freedom or sexual orientation take precedence?

If the answer was based on how many times a right is mentioned in law, religious freedom would win unquestioned. In addition to being mentioned directly twice in the Charter—once as a fundamental freedom and once in the equality rights section—freedom of religion is enshrined in human rights legislation for every province, territory and the federal government. There is an entire international agreement called the United Nations Declaration On The Elimination Of All Forms Of Intolerance And Of Discrimination Based On Religion Or Belief in addition to freedom of religion being stated in the Universal Declaration of Human Rights and other international agreements to which Canada is a signatory.

But, rightly so, rate of recurrence is not how the decision is made. The decision is to be based on a balancing of the rights that may be in conflict in any given situation. How does one right affect the other? How can a right be interpreted so as to have no or the least impact on another? How can negative repercussions against one right be prevented in the interpretation of another?

There is not supposed to be a ranking of rights. No human right is more important than another. All are to be held in balance to foster an environment of respect. Failure to maintain the balance creates negative repercussions. Something is out of balance when people are required to jeopardize jobs, businesses and the sanctity of consecrated buildings because their human rights are being subjected to the rights of others rather than held in balance and respect.

It was the supporters of same-sex marriage who put forward the allegation that those who did not endorse same-sex marriage were like Chicken Little, proclaiming that the sky would fall if same-sex marriage became the law.

Those who supported the traditional definition of marriage as between one man and one woman did not proclaim the sky would fall. We did say our society risked being impacted in ways that had not been prepared for. We did say the issue should be approached with study and balance rather than haste. We did say we were concerned about potential negative repercussions.

Now, as the repercussions materialize, we again encourage balance and respect. A little respect could go a long way—and it is needed from all sides on this issue—as this social experiment unfolds for its evaluation in the eyes of history.

Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.




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