Conscientious Objectors?
Right now in Canada there are two cases before the courts which pit the religious freedom of an individual against the law of the land. In the first, two BC parents who are Jehovah's Witnesses will go before the Supreme Court of British Columbia because three of their four surviving sextuplets were given blood transfusions against their wishes. The children were legally removed from their parent's care long enough for the transfusion to take place.[via The Headbanger Theologian]
In the other case, a marriage commissioner here in Saskatchewan is being brought before a Human Rights Tribunal because he refused to perform a same-sex marriage. Orville Nichols, who is a Baptist, does not believe in same-sex marriage and refused to perform the ceremony even though as a marriage commissioner he is legally obligated to do so.
When does the religious freedom of the individual trump the law of the land? As a country, Canada has been known for it's tolerance. Sikh's who become members of the Royal Canadian Mounted Police are allowed to wear their turban instead of the standard RCMP head wear. The college I went to had a prayer room set aside so that Muslim students could fulfill their prayer obligations. But what about the two recent cases I outlined above, are we as a country guilty of selective tolerance?
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Well, the problem is that religious freedoms are protected in the Charter, both in s.15 on the grounds of discrimination and in s.2 as a fundamental freedom. The government may not require Nichols to violate his beliefs or prevent him from expressing those beliefs without violating his rights.
ReplyDeleteMy argument is that s.15 is binding on the government (i.e. it must provide the legally required service) but the law does not grant any citizen the freedom to walk in to a government office, hand pick an employee, and demand that that employee provide the service. All the law requires is that the service be provided by the government. In so far as that service can be provided (as it was - the marriage was performed by a marriage commissioner) in a timely manner then no discrimination by the government occured.
Requiring a person to do something against their Charter protected religious freedoms is discrimination on the part of the government on religious grounds; this is prohibited by s.15. We must not forget that in Corbiere religion is identified as constructively immutable by the Supreme Court; it is not simply a choice.
The government can hire people of various faiths/abilities to cover all of the requirements of the law but it is not required to be sure that every person hired has to do everything.
Now, with respect to Saskatchewan firing commissioners who will not perform same-sex marriages on religious grounds, I would argue that this is constructive discrimination and in violation of s.15 if the person is being forced to violate their religious beliefs in order to keep their job.
However, the Nichols case is more akin to certain prolifers refusing to protect abortion providers on religious grounds than Sikhs in the RCMP. At what point does the position taken compromise the role? Although the homosexual couple here were able to find a commissioner to marry them without much delay, the lack of uniform response reflects badly on the public institution.
ReplyDeleteNichols does not speak just for himself; he is also an agent of the government. Moreover, this particular service requested of him is following the law. Clergy are an exemption in matters of marriage since they represent the religion or church as well as the government. A couple asking religious officials to marry them would (or could) be aware of the standards required for the ceremony ahead of time. This might not be ideal for all, but is understandable in that context.
Yet in a secular environment, having religious freedoms trump minority rights in lieu of services requested could be seen as an unreasonable restriction toward the minority in question. Must religious freedoms be associated with negative outcomes in regards to minorities? Section 15 does not make religious believers immune to the negative consequences of their actions.
When the law only permitted traditional marriage, Nichols could avoid the implications against homosexuals. He understands his obligations now and yet refuses to perform his duties toward homosexuals, thus violating the requirements of his job. At the very least this suggests that the government has a case to argue.
jadon said: Although the homosexual couple here were able to find a commissioner to marry them without much delay
ReplyDeleteIt is my understanding that it was Nichols who referred the couple to the other marriage commissioner so there was no delay and Nichols did not obstruct the couple in any meaningful way.
Yet in a secular environment, having religious freedoms trump minority rights in lieu of services requested could be seen as an unreasonable restriction toward the minority in question. Must religious freedoms be associated with negative outcomes in regards to minorities? Section 15 does not make religious believers immune to the negative consequences of their actions.
s.2a or the Charter protects freedom of consience and religion as a fundamental freedom. s.2b protects freedom of expression of those beliefs. Mr. Nichols is a person with constitutional rights (as mentioned) and being hired by the government does not cause him to become a non-person. This doctrine of a person being reduced to an agent of the government and therefore bound to do it's will without complaint has no presence in the Constitution in the face of express protections afforded by the Charter.
While the marriage ceremony is civil (i.e. without religious connotations) Mr. Nichols is not. Mr. Nichols cannot be separated from his religious beliefs anymore than the gay couple can be separated from their homosexuality. Both are immutable or constructively immutable.