Federal religious freedom act would face hurdles: advocates

By DEBORAH GYAPONG

OTTAWA (CCN) – The Conservative government may be looking at ways to protect religious freedom in the event a promised motion to reopen the debate on so-called “same-sex marriage” fails, a move welcomed by advocates of traditional marriage.

They warn, however, of major obstacles in protecting the rights of provincial marriage commissioners who refuse to perform ceremonies for same-sex couples or religious organizations that refuse to rent their property to homosexual couples.

“I think it’s a marvellous idea because certainly something has to be done,” said Gwen Landolt, national vice president of REAL Women of Canada in an interview. However she also pointed out that the solemnization of marriage is provincial matter.

Constitutional lawyer Peter Lauwers agreed. “As much as I think we need protective legislation, it has to be obtained through the provinces,” he said in an interview.

In the 2004 marriage reference, the Supreme Court of Canada struck down as unconstitutional federal attempts to ensure religious freedom in the area of solemnization because of provincial jurisdiction, Lauwers said. He predicted a similar fate for any new bill.

Phil Horgan, president of the Catholic Civil Rights League (CCRL), recognized a bill protecting religious freedom would face hurdles, but said one could be drafted to cover areas under federal jurisdiction such as the federal human rights code, charities, banking, immigration, and transport. Such a law could protect charities from being penalized for their stand on marriage, for example.

Lauwers and Landolt expressed concerns over the growing number of cases where the rights of homosexuals have seemed to trump those of religious persons. Marriage commissioners in several provinces have been told they must perform same-sex ceremonies or lose their jobs. Even in cases where the initial complaints have been dropped, such as human rights complaints against Calgary Bishop Fred Henry for a pastoral letter outlining the Church’s teaching on marriage, the fact that complaints can be laid poses a chilling effect on free speech because of the expense of having to defend against them. Those making the complaints don’t have to pay any legal fees.

Lauwers noted that many cases still have to work their way through the courts, and it remains to be seen how religious freedom will fare.

“The key value that we have to continue to recognize is the accommodation of religious diversity,” Lauwers said.

There is no reason to dismiss a marriage commissioner who refuses to perform the “wedding” of a same-sex couple because there are other commissioners available, some of whom would welcome the opportunity, he said.

“Why are we trying to eliminate these people?” Lauwers asked. Canada has a tradition of accommodating differences, for example letting Seventh Day Adventists observe a Saturday Sabbath, or allowing Jews to take time off work during their religious holidays, or allowing Sikhs to wear turbans in the RCMP.

“What I see in this area is a complete reversal of that tradition in the interest of a particular group,” he said. “That particular group can have its rights fully protected without diminishing the rights of religious organizations and individuals.”

Noting that non-religious conscientious objections also need to be accommodated, Lauwers pointed out that a number of homosexual people find these tactics to be quite troublesome. “I think pluralism means we have to live and let live.”

Even when religious rights are upheld, there have been glitches. In the case of a homosexual couple suing a B.C. chapter of the Knights of Columbus for refusing the use of their hall for a “wedding” reception, the Knights were found to be within their rights to refuse but were nevertheless fined $2,000 for “hurting the feelings” of the women, Landolt said.

News of a possible Defence of Religions Act (DORA) became headlines Oct. 4 after the Globe and Mail carried an interview with Justice Minister Vic Toews.

“The nature of the concerns that are being raised with me are relating to freedom of religion and freedom to practise religion [and] freedom of expression,” Toews told the newspaper. “The Prime Minister has indicated that he is bringing the matter forward (the issue of “same-sex marriage”) on a free vote, and there may be certain options open to the government as to what the response should be in either event, whether that opening is successful or not successful.”

Though Harper and Toews later dismissed a religious freedom bill as mere speculation, justice officials have told journalists that work on such a bill is going ahead. No date has been set for a motion on reopening the marriage debate or on the tabling of any bill.