In 2003, the chief appellate court of the province of Ontario unanimously ruled that the common law definition of marriage in force in Canada ("one man and one woman") was unconstitutional, as it violated the equality guarantees of Canada's Charter of Rights and Freedoms (an amendment to the Canadian constitution, somewhat analogous to the U.S. Bill of Rights, but passed only in 1982). The Ontario decision followed similar provincial court decisions in British Columbia and Quebec. While the British Columbia and Quebec decisions struck down the old law, a standard practice in findings of unconstitutionality, the Ontario court went further: it decreed that Ontario's marriage laws must be immediately rewritten to include homosexual couples. With uncharacteristic alacrity, Toronto City Hall began issuing same-sex marriage licenses that very afternoon: five hours elapsed between the court's decision and the first gay wedding at City Hall, and Ontario instantly became a magnet for gay couples seeking to "marry." The decision made international headlines as a major victory for gay activists. But that was only the beginning. The subsequent federal government response and ensuing public debate revealed that religious liberty itself is under attack in Canada. Indeed, the fracas over gay marriage has underscored that a totalitarian impulse has infected the Canadian body politic. "Totalitarian" is, admittedly, a hard word, but I believe it is required in this instance.
In response to the Ontario ruling, the federal government of then Prime Minister Jean Chrétien (supported by his successor, Paul Martin) decided not to appeal the decision to the Supreme Court of Canada. Instead it introduced legislation that would amend the definition of marriage in line with the court directive, with a clause that would specifically exempt clergy from having to solemnize gay unions. Having chosen thus to embrace gay marriage, the federal government then referred the proposed law to the Supreme Court. (Canadian law allows the federal government to ask the Supreme Court for its opinion on proposed legislation.) The government specifically asked the Court whether the proposed clergy exemption was compatible with the Charter of Rights and Freedoms.
The reference question is deeply worrisome. It is widely expected that the Supreme Court will approve the exemption for clergy--though one can never be sure. But the fact that the question is even being asked is an ominous portent. The Canadian federal government has asked the chief judicial authority whether a bill which exempts religion's blessings of marriage from government redefinition is constitutional. One would hope that the question need not even be asked. Yet so advanced is the totalitarian impulse in Canada that advocates of the federal redefinition of marriage positively boast of how broad-minded they are in allowing churches to administer their own sacraments as they see fit.
The freedom of churches to administer the sacraments is as fundamental a religious liberty as there can be. That freedom is not granted by statute, for the freedom is not the state's to grant. Does the government's "reference" to the Supreme Court indicate its actual doubt about whether churches are free to administer sacraments? It is more likely that because certain public benefits flow from a religious marriage, the government is seeking the Court's opinion in order to forestall some adventurous human rights tribunal from forcing a clergyman to perform a same-sex marriage. Given that these tribunals have recently been given the authority to adjudicate Charter claims, it is likely only a matter of time before one of them acts.
That is the worst-case scenario of state expansion. But state expansion will likely pass other milestones on its way there, eroding religious liberty on questions related to marriage. First it will be churches forced to rent out their halls and basements for a same-sex couple's wedding reception. Then it will be religious charities forced to recognize employees in same-sex relationships as legally married. Then it will be religious schools not being allowed to fire a teacher in a same-sex marriage. Then it will be a hierarchical or synodal church not being allowed to discipline an errant priest or minister who performs a civilly legal but canonically illicit same-sex marriage. All of this can happen short of the worst-case scenario specifically exempted in the federal government's proposed law.
The federal government's decision was followed a few weeks later by the release of a Vatican document which instructed Catholic politicians that they could have no part in advancing gay marriage. The Canadian bishops followed that up with frank statements in support of the Vatican argument, and many wrote letters on the subject to be read in their parishes. Bishop Fred Henry of Calgary warned Prime Minister Chrétien, a Catholic, that he was putting his soul in danger. In response, the swords of the cultural elites were unsheathed.
The airwaves were filled with outrage that Catholic bishops would presume to speak about marriage and salvation--those having now become public, and therefore entirely secular, matters. The National Post editorial board, usually sympathetic to traditional social mores, told the Vatican to "butt out." Former Globe and Mail editor-in-chief William Thorsell, a leading spokesman for all things progressive, solemnly warned that if the Catholic Church was going to stick its nose into political business, it had better be prepared for all the "brickbats" that accompany political involvement.
All of this demonstrates that the Canadian understanding of the vital importance of religious liberty is enervated indeed. In the space of a few months, the state has moved into a sphere previously thought beyond its competence--namely, the definition of marriage--and the political culture has denounced the religious leaders who dissented. That the Vatican document and the episcopal letters were examples of pastors speaking to their own church members made the cultural response all the more worrisome.
The gay marriage question is not the only issue which has eroded religious liberty in Canada. The gay activist agenda as a whole has been particularly successful on a range of issues. Here are four examples, three judicial and one legislative.
1. Trinity Western University, a private university affiliated with the Evangelical Free Church, was denied a license to certify teachers by the British Columbia College of Teachers because its code of student conduct prohibited, among other things, homosexual relationships (it also prohibited other sins against chastity). While the university eventually prevailed at the Supreme Court of Canada in 2001, lower courts agreed with the College of Teachers that prohibiting homosexual relationships is unacceptable because it might lead future public school teachers to harbor a discriminatory animus against homosexuals.
2. In March 2000, Scott Brockie, owner of a printing business, was fined $5,000 by the Ontario Human Rights Commission for refusing to print letterhead and cards for the Canadian Gay and Lesbian Archives. Protesting that his Christian faith prevented him from promoting homosexuality, Brockie had declined the order back in 1996. The Commission ruled that his religious beliefs did not entitle him to turn down business from homosexual groups.
3. In 2002, an Ontario lower court ordered a Catholic high school to admit one of its students, Mark Hall, to the school prom with his boyfriend. The principal of the school had previously decided that such a same-sex couple would not be admitted to the prom. In the course of the hearing, the judge took it upon himself to hear arguments about the status of Catholic teaching on homosexuality. While he accepted the local bishop's articulation of Catholic doctrine, he determined that it was not the only view of the matter and sided with the gay student. Even though the prom is long since over, the matter is still working its way through the courts on appeal.
4. Finally, last year the Canadian House of Commons passed a bill that added sexual orientation to the list of "hate speech" categories in the criminal code. Hate speech is a criminal offense if it promotes hatred toward an identifiable group. It was originally introduced into the criminal code to deal with racism, and particularly anti-Semitism. Should the bill become law, the state will be called upon to judge how opinions on homosexuality are delivered. While the bill has yet to clear the Senate, religious groups have raised concerns that--following the Trinity Western, Brockie, and Mark Hall cases--public expression of orthodox moral judgments regarding homosexuality could now be legally penalized.
The public policy goal of rooting out discrimination against homosexuals has opened a huge new area of civil life to the power of the state, as it now seeks to regulate the socializing policies of schools, the practices of private businesses, and perhaps even the preaching and teaching of churches.
Homosexuality is not the only issue on which religious liberty is imperiled; medical practice is another. In British Columbia, the introduction of abortifacient drugs--"emergency contraception" or the "morning-after pill"--has posed a moral challenge for pharmacists. They were permitted to dispense the drug without a prescription, and the regulatory body of pharmacists indicated that it would be mandatory for all pharmacists to dispense the drug. It was argued that the public policy decision to grant a monopoly to pharmacists over the dispensing of drugs meant that their consciences had to take a back seat to a "public health" need. The case is still being debated, but it indicates that threats to religious liberty are not limited to the courts or even the legislatures. The vast array of professional bodies that are granted privileges by the state can be used as ancillary agents of state power to constrain those professionals who dissent on religious grounds from a particular policy, even if the matter has nothing to do with the dissenter's professional competence.
A current example, still under internal adjudication, relates to a Canadian medical student who was failed in his obstetrics rotation for his statement that he would not do abortions. Not that he actually refused to do abortions--the issue did not arise in the event--but he said that he would not do them as a doctor. The Canadian Medical Association guidelines include a "conscience clause" which states that no doctor can be forced to do abortions. A medical student is in a rather fragile position: his professional future is in his superior's hands and he has no other option. There are no Christian medical schools in Canada. Should he not be vindicated by his university (or eventually the courts), the state monopoly on medical education granted to public universities will have been used to punish incorrect opinions on abortion.
The danger of authentic democracy degenerating into totalitarianism was summed up by Pope John Paul II in a highly relevant passage from Centesimus Annus in 1991:
Authentic democracy is possible only in a state ruled by law, and on the basis of a correct conception of the human person. It requires that the necessary conditions be present for the advancement both of the individual through education and formation in true ideals, and of the "subjectivity" of society through the creation of structures of participation and shared responsibility. Nowadays there is a tendency to claim that agnosticism and skeptical relativism are the philosophy and the basic attitude which correspond to democratic forms of political life. Those who are convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view, since they do not accept that truth is determined by the majority, or that it is subject to variation according to different political trends. It must be observed in this regard that if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.
That last sentence stings. Could our democracy become a "thinly disguised totalitarianism"? Surely the Holy Father was not talking about Canada? In 1991, perhaps his words did not apply. They certainly do apply now. Canada is not a totalitarian state, but the totalitarian impulse is very thinly disguised indeed, and the signs on the horizon are ominous.
When religious liberty is lost, democracy--even if it maintains the structures and procedures of the democratic state--is lost. So the stakes are very high. That is why John Paul has stressed throughout the twenty-five years of his pontificate that religious liberty is the first liberty. Religious liberty means that there are areas where the state may not go. It means that the state may not coerce consciences. A democracy that loses its respect for religious liberty has lost its respect for limited government. Such a democracy, infected by the totalitarian impulse, may continue to wear the guise of democracy while heading in the opposite direction.
A full-fledged totalitarian state recognizes no limits to state power. There are no spheres where the state is not competent to act. But before totalitarianism triumphant, there is the totalitarian impulse, which may be understood as the ambition of the state to extend its authority to realms where it has no authority. The totalitarian impulse is a threat to democracy because it seeks to overturn the democratic value of limited government. The totalitarian impulse necessarily seeks to limit religious liberty.
A pithy definition of totalitarianism was offered by one of its fiercest practitioners, Benito Mussolini: "Everything within the state, nothing against the state, nothing outside the state." Mussolini, even in a staunchly Catholic country in which he could never control the Church, realized that, in theory, totalitarianism cannot abide anything that makes claims about a realm beyond the state. In other words, it cannot abide the truth claims that religious liberty protects.
There are no restrictions on freedom of worship in Canada today. Canadians can practice their faith unmolested by the state. But increasingly, full participation in civil, commercial, and professional life is requiring that religiously grounded beliefs be left at the door. The threat is coming not only from courts and legislatures, but from tribunals, regulatory bodies, and professional associations. The gay marriage issue has attracted most of the attention. But the threat to religious liberty reaches much farther. It reaches toward everything, as in "totality."
Raymond J. de Souza is a priest of the Archdiocese of Kingston, Ontario. He is a curate at Our Lady of Lourdes parish and a chaplain to Newman House at Queen's University.
Copyright (c) 2004 First Things 142 (April 2004): 9-12.
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