What is really at issue in some recent high profile court cases touching on the freedom of conscience and religion.
Iain T. Benson
In a nationally syndicated column ("The Church and Citizenship on Earth," National Post, June 6, 2002) Charles Krauthammer rightly noted that criminal conduct should not be hidden from the State under any religious claim for "immunity." He is wrong, however, to claim that "civil society grants the Church autonomy in ritual, belief, and practice up to the limits of criminality."
Freedoms of conscience, religion, or expression are not "granted" or "licensed" by the state. The power to grant these freedoms also implies the power to withdraw them, a power which only an illiberal state would claim to have. Certain rights and freedoms must be recognized as prior to the state. The state and the laws recognize these rights, they do not create them.
It is a mark of a truly free society that it respects the limited nature of its powers and seeks to accommodate differing beliefs to the greatest extent possible, keeping any intrusions by law or other state mechanisms to an absolute minimum. Unfortunately, many of the cases before the courts today fail to keep this important insight in mind with very dangerous consequences if the insight is not recovered.
There are two main competing versions of liberal society today. The first version, what we might call "convergence liberalism," assumes that society will move towards some sort of consensus as time goes on. This version hides the real problem that there are claims, integral to our various communities, that cannot in fact be reconciled. The second version gives more place to diversity: let's call this "pluralistic liberalism." Pluralistic liberalism seeks, as far as possible, to accommodate differing viewpoints and recognizes communities that have diverse commitments and interests.
Take, for example, the current debate before the Supreme Court of Canada about which books are suitable for children in the Kindergarten classes of Surrey, British Columbia. Which version of liberalism is endorsed will go some way in determining how the court will decide this case, for the two parties in the dispute are clearly operating with different versions.
The appellants in the Chamberlain case, those who want the homosexual or lesbian parenting books in the children's classrooms, appear to represent convergence liberalism. They argue not only that all parties in a public enterprise such as education must show respect for persons of different beliefs and practices, but that all parties must welcome and affirm the conduct of those persons - in this case, persons in "same sex" relationships. But in doing so they effectively nullify or set aside the beliefs and practices of most major religious communities and of the many people who adhere to those communities.
The defendants, on the other hand, represent, in various ways, pluralistic liberalism. They want to respect persons but do not believe that this necessarily entails welcoming conduct they disagree is morally acceptable. Their beliefs are being driven, it seems, into the closet.
Nowadays the challenges before the courts in all sorts of cases often invite the court to determine that there is one preferred viewpoint on areas that are contested. It is as if the former religious consensus in society is being
replaced by one that is often opposed to the religious viewpoint. The French philosopher Jacques Maritain once wrote about the danger of "theocratic atheism" and author Lois Sweet has written of "secularistic fundamentalism." Both are correct. What masquerades as liberal tolerance is all too often only a tolerance for how such liberals define tolerance. It is not a genuine tolerance that allows a full public place for differing beliefs.
This is why, in the Brockie case (involving whether a Christian printer in downtown Toronto could refuse to print materials that he deemed to be against his religion), the claim by the Ontario Human Rights Commission lawyers that their position in favour of promoting gay and lesbian "visibility" had greater weight than Brockie's religious views, was so dangerous. It was good the Divisional Court overturned that aspect of the Human Rights Commission finding on review. Must religious parents be "driven out" of public education because they can no longer feel welcome in the face of what they perceive as an "anti-religious" curriculum that interferes with their primary role as moral educators of their children? Is their claim to respect homosexuals and lesbians as people without affirming same sex conduct really akin to racism as is being alleged in court? (For a more complete analysis of the Brockie decision, please see Lex View #51 on the Centre's website.)
Must citizens like Scott Brockie park their religious beliefs at the doors of their homes and churches because religious beliefs somehow "weigh" less than other beliefs in the public sphere? Of course not. No one says to nonreligious people that they must accept religious conduct so as to respect religious citizens. The analogy is telling.
The best way to reconcile the competing claims in these sorts of cases is to treat the new same-sex claimants as society eventually came to treat "religious claims," by viewing some matters as private and not public. In the public, the most we can demand is proper tolerance and respect of persons. We ought not to be forced to affirm their conduct in the same way as we are not forced to affirm religious practices of others. There must be grounds for respectful dissent but in the classroom the most appropriate manner to deal with contested matters is to leave them for families to sort out with their children. Real diversity requires this kind of respect. Acceptance of same sex conduct should not be forced upon the public as it represents both the wrong approach to liberalism and the wrong direction for Canadian pluralism, diversity and equality.
Benson, Iain T. Two Versions of Liberalism. CentrePoints 10 no. 1 (Centre for Cultural Renewal, Winter, 2003): 1-2.
Reprinted with permission of The Centre for Cultural Renewal and Iain T. Benson.
The Centre for Cultural Renewal (formerly the Centre for Renewal in Public Policy), a non-partisan, non-denominational think-tank with registered charitable status in Canada and the United States, has been described as the most credible organization in Canada addressing fundamental questions about politics, culture and faith. For the past six years the Centre has been making a name for itself by hosting events that seek to articulate the relationship between the techniques and purposes of key areas of culture: law, medicine, politics, education and the arts. Iain Benson, a constitutional lawyer, is the Centres Executive Director.
Iain Tyrrell Benson is a legal philosopher, writer, professor and practising legal consultant. The main focus of his work in relation to law and society has been to examine some of the various meanings that underlie terms of common but confused usage. An advocate that the public sphere should be open and inclusive of all citizens and their groups, whether their faith and belief commitments are based on non-religious or religious beliefs, Iain Benson was the first Executive Director of the Centre for Cultural Renewal, a non-partisan, non-denominational charitable foundation with status in both Canada and the United States, dedicated to examining the nature of pluralism with particular reference to the associational rights dimension of religion and expression.Copyright © 2003 Centre for Cultural Renewal
back to top