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11 min

Fighting back religion: Part I

Is there no escape from the bible thumpers?

IT'S ALWAYS GOING TO BE THERE. The Charter guarantees equality rights for gays and lesbians. But it also protects the rights of religious people to denounce us in strong terms. Credit: John Crossen

You shall not lie with a male as with a woman; it is an abomination.
-Leviticus 18:22.

If a man lies with a male as with a woman, both of them have committed
an abomination; they shall be put to death; their blood is upon them.
-Leviticus 20:13.

The men, giving up natural intercourse with women,
were consumed with passion for one another.
Men committed shameless acts with men and received
in their own persons the due penalty for their error.
-Romans 1:27.

There’s actually very little in the Bible about homosexuality. Jesus, for example, has nothing to say about it.

What there is in the Bible is wide open to interpretation, and those who want to follow biblical law tend to be selective in their application. Few people, for example, want to execute people for working on Sundays, or to isolate women who are menstruating — whatever Leviticus may say.

But somehow, the supposed prohibitions against homosexuality in the Bible and the equally vague prohibitions in Jewish and Muslim holy books, have come to regulate most of the world’s attitude towards gays and lesbians. In much of the world, homosexuality is still illegal, and in many countries, especially those actually run by religious law, the penalty is death.

In Canada, we may have same-sex marriage, we may have Pride parades, we may have hate crimes protection, we may have the Charter Of Rights And Freedoms. But the question remains: are Canadian queers free from religion or still suffering under the same religious strictures, while being tossed a few bones?

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You only had to walk into a church, synagogue or mosque during the same-sex marriage debates to realize that hatred of homosexuals is still allowed as part of religious services.

During those same debates, you could also read full-page ads in national newspapers attacking same-sex marriage on religious grounds. And while some ads were careful to defend heterosexual marriage rather than condemn homosexuality, other ads have openly attacked gays and lesbians based on religious beliefs. Provincial human rights boards and professional bodies have varied in their rulings in such cases.

Despite claims to the contrary, there’s little evidence that vigorously attacking homosexuality will be punished by Canada’s legal system. US right-wing religious groups are able to point to only two such cases in Canada.

In 1997, prison guard Hugh Owen took out an ad in a Saskatoon newspaper.

The ad consisted of an image of two stick men holding hands, with a red circle with a bar through it superimposed, and listing four scripture references (not the verses themselves) attacking homosexuality. Three gay men filed a provincial human rights complaint claiming the ad constituted hate literature, which was upheld, forcing Owen to pay the men $1,500 each.

And in 2002, the British Columbia College Of Teachers suspended Chris Kempling for one month for “professional misconduct or conduct unbecoming a BCCT member,” after he wrote a series of letters to his local newspaper saying homosexuality was wrong.

One letter said: “I refuse to be a false teacher saying that promiscuity is acceptable, perversion is normal, and immorality is simply ‘cultural diversity’ of which we should be proud.”

But according to BC lawyer David Sutherland — a former board member of the BC Civil Liberties Association and long-time defender of gay rights — those rulings should have gone in favour of Owen and Kempling. Sutherland believes that despite his own contempt for religion, freedom for such speech is something gays and lesbians have to learn to live with as we share this nation with people with strong opinions about our sexuality.

“Religion has a terrible name with me. It seems to encourage murder, war, exclusion, pain, death and destruction. But it is my view that it is wrong for government ever to tell citizens what they can or can’t say. Ideas should not be made illegal. They should be defeated in debate.”

In other words, religious people have the right to believe whatever they want about us and to discuss it amongst each other and with the world. Gays and lesbians, on the other hand, have the right not to be physically assaulted or denied equal access to employment or government programs.

In Sutherland’s view, the Charter gives queers the right to be equal. On the other hand but people with religious beliefs have the right to publicly disagree with gay people’s reality but not the right to discriminate against us or cause us violence.

“Religious denominations have the right to subscribe to whatever their beliefs are,” says Micheal Vonn, the policy director of the British Columbia Civil Liberties Association.
Clearly, gays and lesbians are never going to be free of religious hatred. And that may be a price that has to be paid for equality in Canada.

Sutherland’s strong words may sound like they set the stage for an unending game of Rock ‘Em Sock ‘Em Robots — with religion free to make insane, hurtful pronouncements about gays and lesbians, while gays and lesbians are free to unleash their invectives on the Church.

“If religious people are trying to restrict the freedom of the general population, the courts have ruled they can’t do that.

But on the other hand, the general population can’t restrict the freedom of religious groups,” says former Ontario attorney general Marion Boyd.

Boyd was appointed by the Ontario government to investigate whether the province should allow Muslims to set up a system of family law governed by traditional Muslim system of sharia law. Although Boyd recommended that sharia be allowed under very tight restrictions,
the Ontario government, under pressure from women’s groups and many Muslims, decided against it, also cancelling a system of Jewish family law that had been in place.

Vonn says that religious fundamentalists often expect the Canadian system to value their rights over others — but the courts aren’t buying it.

“Part of their idea of rights is they have a right not to be offended. I assure you that you have no right not to be offended.

“The Supreme Court Of Canada argues that there should be no hierarchy of rights. That morality seeks to maximize civil liberties in a society that requires everyone to bend a little.”

That bloody battle of words is called ‘freedom of expression’. We’re protected; they’re protected. But what about in other areas of the law? Is religion losing its grip on legislators and the judiciary?

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Well, the judiciary, anyway. But Boyd feels that the courts in Canada are starting to increasingly ignore religious factors in their decisions. She points to the Supreme Court’s ruling dismissing charges against a Montreal swinger’s club as an example of how courts are progressing beyond “community standards” as a measure.

“That’s a legal test that’s starting to fall by the wayside. It used to be enough to just say that violates community standards. That’s not enough any more. I think most courts would want a clear definition of community standard and how something violates it.”

Vonn says that the court in that case also decided that private sex among consenting adults didn’t harm anyone. But she warns that one can’t read too much into one case.
“The problem with judge-made law is that it applies to the circumstances the court is presented with.”

Vonn also points to two BC school board cases before the BC Human Rights Commission as examples of how religion may be losing its role as legal arbiter, one in Surrey where religious parents tried to ban gay-themed books from a school reading list, and a now-abandoned current case where gay activists were trying to include gay and lesbian material in the curriculum (in the latter case, the BC government made a deal with the activists |that is expected to lead to curriculum change).

In the Surrey case, the school board was told they couldn’t ban material on religious grounds. In the current case, Vonn thinks the material will be included.

“Already, there’s a big hue and cry from parents who think they should be able to opt out. At the moment, I can’t think of the school district that would be okay with, ‘When we get to evolution, you’ll call me and let me yank my kid.’ You have every right to enroll your kid in a religious school or to home school your kid.”

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But we’re not out of the woods yet. Sutherland believes gays and lesbians also have to learn to live with businesses being able to refuse them services on religious grounds. He points to cases of printers refusing to print gay-related material. Several such human-rights complaints have been filed in the past, and several more are pending.

“In the private sector, they should be absolutely free to refuse,” says Sutherland. “The gay and lesbian community is then [free] to boycott that printer, or boycott anyone who uses that printer.”

Sutherland says BC has passed legislation prohibiting the refusal of goods and services on the basis of sex, race, sexual orientation, but has then repealed it.

“Society has not gone so far at the present time as to establish that as a principle.”

Nor has society required professional bodies to regulate religion, according to Brenda Cossman, a University Of Toronto law professor and a member of the board of directors of Pink Triangle Press, the publishers of Capital Xtra. Cossman points to the Supreme Court Of Canada ruling in the case of Trinity Western University. The religious BC teachers’ college taught that homosexuality was wrong. The Supreme Court decided that graduates, who were entering the public school system, should not be compelled to take additional training.

“There was no reason to believe that forcing teachers into an extra year was necessary, because there was no reason to believe they would discriminate,” says Cossman.

* * *
Religion has its fingers in the very laws that regulate our society. For example, thanks to our religious traditions,
in parts of Canada, if someone really wanted to force the issue, a girl could get married as young as seven years of age.

According to Cossman, most of Canada’s sex laws – prostitution and bawdyhouse, for example – are taken less from ancient religious laws than from Victorian prudery. But she says that the laws at the centre of debate today — our marriage laws — are the prime example of laws derived from religious strictures.

“There’s one area that remains strangely unchanged, and that’s who can marry who. Those come down from ecclesiastical courts. There are the laws that govern bigamy and polygamy. You can only be married to one person. There was a same-sex requirement, there are age requirements, but barely.”

Cossman says that Canada’s actual marriage laws are so screwed up that the debate over whether same-sex couples can get married should be completely irrelevant.

Cossman says provinces have adopted a requirement of 16 for marriage licences, 18 without parental consent. But she says that technically, those restrictions may be unenforceable.

The irony, of course, is that it is, essentially, religious laws that would allow such marriages.

“The age requirements show how anachronistic this law is,” says Cossman.

But while the religious right continues to defend that law, they seem to have acknowledged temporary defeat on the issue of same-sex marriage. A Parliamentary vote on whether to review the law was soundly defeated last autumn, with about a dozen Conservatives voting against the motion.

So instead, the Harper government is fighting back in other ways, and is doing so in the name of religion. Earlier this year, members of the Harper cabinet floated the idea of a Defence Of Religion Act that would protect the rights
of religion to be homophobic, and would allow civil officials to opt out of marrying same-sex couples on religious grounds.

Certainly, the law allows churches to refuse to marry a same-sex couple. Legal experts and civil libertarians both say that the law granting same-sex marriage rights ensured that religions still have the right to refuse to marry them.

Any federal law that attempts to allow civil employees to refuse marrying same-sex couples will almost certainly crash on the rocks of provincial jurisdiction. Most legal experts say that the administration of marriage is a provincial responsibility, and that any decision allowing civil officials to discriminate would probably be overturned by the courts.

“On a constitutional basis, I think there would be a very good challenge there,” says Boyd.

“I think once they take on the job, civil employees ought not to be able to discriminate. The Ontario government made a decision that would allow religious bodies to refuse, but not civil.”

* * *
After losing the bid to repeal the legality of same-sex marriage, Harper said he has no immediate plans to introduce the Defence of Religions Act. But, with the full support of religious right lobbying groups, he’s finding other legal means to impose socially conservative values.
The latest attempt to work religion in under the guise of protecting children is Bill C-22. It’s the Conservative’s new bill to raise the age of consent from 14 to 16. Now passed second reading – and encountering virtually no opposition from Liberal, NDP and Bloc MPs afraid of being branded soft on child abuse — the bill is now before the justice committee. Its critics see it as a religiously motivated attack on youth sexuality that will have a disproportionate impact on queer teens.

“I think the main supporters of this bill are the religious right,” says Andrew Brett of the Age Of Consent Committee. “What has suddenly changed in the last six months that a law that worked for a century suddenly doesn’t work anymore? Honestly, I don’t think people would care, except for the religious right.”

Vonn agrees that the law is likely to be applied more heavily to gays and lesbians.

“A law that is neutral on its face has never prevented it from being applied unequally.”

Vonn also says that the law seems to be less about protecting children than about controlling their sexuality.

“Some would argue that the side-effects are not unintended, like the difficulty of youth in accessing sexual information.

“The concern about not criminalizing youth sexuality seems to be very far down the list. It looks much more like heightening the legitimacy of policing teen sexuality. There may be good reasons for this law, but it should be up to the government to prove it.”

Boyd says she is personally ambivalent about raising the age of consent, but has no doubt that the law’s failure to address the discrepancy between anal and vaginal sex — the age of consent for anal is currently 18 while that for vaginal sex is 14 — stems from religious homophobia.

She says that even though a number of provincial courts have ruled the age difference to be unconstitutional, no government has been willing to change it.

“No-one’s ever had the political courage. No-one wants to take the political pillorying that people would inflict.”
Boyd says that even rape victims rarely talk about anal rape.

“They all tell the police about vaginal sex, but not about anal sex. It’s that kind of Levitical thing that gets people really upset. It’s not really surprising that we talk about missionary position.”

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If it’s bad in Canada under the Harper government, it may be even worse in the US. There, it was only in 2003 that the Supreme Court legalized homosexual sex and struck down anti-sodomy laws.

The ruling inspired heated dissent, even on the court itself, with justice Antonin Scalia saying the court “has largely signed on to the so-called homosexual agenda,” and
“It is clear from this that the Court has taken sides in the culture war.” He also said the decision threatened every single state law against bigamy, adult incest, bestiality, prostitution, adultery, obscenity and masturbation.
In a ruling in 1986 that affirmed the illegality of gay sex, the court had ruled the majority of the electorate believed that homosexual sodomy was immoral and unacceptable, and that the sodomy laws were “firmly rooted in Judeo-Christian moral and ethical standards.”

But even in a country where religious groups were able to persuade voters to approve bans on gay marriage in another seven states in the November elections, things might be loosening up.

In that same election, for the first time a state, Arizona, voted down a ban on gay marriage.

Massachusetts currently allows gay marriage, although it may only be a matter of time before it’s taken away. New Jersey recently approved civil unions, with all the rights and responsibilities of marriage.

And it’s those court rulings that have US religious groups terrified that same-sex marriage could be forced on them. They seem especially worried by the way in which same-sex marriage happened in Canada, through the pressure of provincial legal decisions.

“The Canadian federal system is similar enough to the American system to give pause to those who argue that same-sex marriage can be contained in certain states,” wrote Bradley CS Watson, a professor at St Vincent University in Pennsylvania. “The goal of those arguing for it at the state level is not the protection of federalism, but the eventual universal triumph of same-sex marriage.
This, combined with the logic of modern federal systems unduly dominated by judicial power, does not bode well for traditional marriage or federalism.”

As a result, US religious groups are trying to cut off queer advances at the source: in Canada. Focus On The Family (FOTF) established Focus On The Family Canada. The Canadian chapter denies it receives funding from
its US founders, but according to the Toronto Star, the US group’s 2003 financial report stated that “Focus provides, without charge, the cost of certain services necessary for the operation of the Focus On The Family (Canada) Association. The value of these services for the years ending Sept. 30, 2003 and 2002 was approximately $217,000 (US) and $239,000 (US) respectively.”

The Canadian chapter also opened the Ottawa-based Institute Of Marriage And Family Canada, which, among other things, attacks the right of queer couples to adopt.

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So, queer Canadians are clearly not free from the nastiness of discriminatory religious dogma. Our Charter Of Rights And Freedoms attempts to hold a delicate balance between religious rights and equality rights. The courts enforce the charter by drawing a line between speech and action. You can express negative opinions about gays as long as you’re not whipping people up to commit violence or not taking actions to discriminate.