Marriage Commissioners and Religious Freedom

In May 2010, I was asked to submit an affidavit on an evangelical theology of marriage on behalf of the Evangelical Fellowship of Canada, which was acting as an intervenor to the Saskatchewan Court of Appeal in reference to proposed legislation to protect religious freedom of Marriage Commissioners. (Here is an earlier post about my involvement). At the time, I felt that it was inappropriate to post my affidavit until the case was decided (which it now is), so I have now uploaded it to my “Box.net” collection available here.

ActiveCFPL has summarized the case as follows:

In July 2009, the Justice Minister of Saskatchewan asked the Court of Appeal for an opinion on the constitutionality of two potential legislative options which would permit marriage commissioners to decline performing same-sex marriages if contrary to their religious beliefs. One would have permitted marriage commissioners appointed before a certain date to refuse to solemnize a marriage contrary to their religious beliefs and a second that would have allowed any marriage commissioner the same right.

(Access to the full Court of Appeals ruling can be found here. A short summary of the case and the ruling can be found here.)

On January 10, 2011, the Saskatchewan Court of Appeals handed down its ruling that neither of the proposed legislative amendments would be constitutional, and that each would violate section 15(1) of the Canadian Charter of Rights and Freedoms which protects Canadians against discrimination on the basis of “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Though “sexual orientation” is not explicitly mentioned in the Charter, the Supreme Court of Canada has already read “sexual orientation” into the Charter.

What does this ruling mean? As I understand it, it means that even if the Government of Saskatchewan is not prevented from invoking legislation that would enshrine protection of Marriage Commissioners who, on the basis of religious conviction, would refuse to perform a marriage ceremony for a same-sex couple (since this is only a reference from the court, and is not binding), it clear that any such legislation would be immediately able to be challenged. So it is doubtful the government will invoke such legislation. Practically speaking, this means that current and future Marriage Commissioners (at least in Saskatchewan) will have no legal right to refuse to perform a same-sex marriage ceremony on the basis of religious conviction.

However, there may be a small glimmer of hope: In the ruling, the Honourable Justice Richards made mention of a “single entry point” system in which a centralized office would gather all applications and then assign a marriage commissioner to each application, thus potentially accomodating and protecting the religious convictions those marriage commissioners who do not feel that they can perform a same-sex ceremony. But since this is only a legal “reference” on proposed legislation (as opposed to a ruling on pre-existing legislation) there is no compulsion on the Government of Saskatchewan to have to follow through on this advice. Nevertheless, I do hope that they would consider setting up such a system in the absence of any new legislative protection.

So what are some of the implications of this ruling? Although I’m wonder if the decision is more far-reaching than I may realize, here’s at least three major implications to consider:

1. The ruling sets in motion the possibility that the Charter of Rights and Freedoms will no longer guarantee universal protection of religious freedom. On the contrary, this ruling practically decides that there are certain circumstances under which the Religious rights and freedoms of an agent of the State must be limited. Unfortunately, the distinction, as appealed to under the ruling, between an agent of the State and a private individual is no where spoken of in section 15 of the Charter. Indeed, the Charter explicitly states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…” But under this ruling, potentially any agent of the State (i.e., anyone who works for the State) may be required to check her or his religious convictions at the door in order to accomplish her or his obligations to the State, or else resign her or his position. And I ask: It is Marriage Commissioners today, but who will it be tomorrow?
2. The ruling allows no middle ground for the exercise of religious conviction for Marriage Commissioners, and potentially, for other agents of the State. In other words, the possibility of “reasonable accommodation” for the exercise of religious conviction for agents of the State has been reduced. In this particular case, certain Marriage Commissioners, who by religious conviction do not believe they can perform a same-sex marriage ceremony, have one of two options: Either they ignore their own religious conviction, act against their conscience, and begin performing same-sex marriage ceremonies for couples who present themselves, or Marriage Commissioners resign their position in order to protect their religious convictions and conscience. It is a sad irony, therefore, that it is the Charter which is supposed to protect individuals from needing to make such a choice in the first place, and yet it is the Charter which is supposedly being safeguarded by this ruling. In light of this, I certainly hope that the Saskatchewan government takes its cue from Justice Richards and sets up some kind of central “single entry” system which would prevent Marriage Commissioners with religious convictions against same-sex marriage from making the decision outlined above.
3. The ruling means that in the future (barring a bureaucratic means of providing reasonable accommodation) only those who have no religious conviction against same-sex marriage will be able to apply to become a Marriage Commissioner, i.e.,  those with religious convictions need not apply.  The logic goes something like this: “All individuals are to be free from discrimination on the basis of religious belief, therefore all individuals may apply to become a Marriage Commissioner. However, only those who willingly give up their right to practice their religious conviction are actually employable as a Marriage Commissioner.”  Does this not sound like religious discrimination? The main problem is that this ruling has de facto taken a moral position on marriage, mainly, that the only proper conviction for an agent of the State to hold is one that upholds a definition of marriage that includes both opposite-sex and same-sex marriage. One can only imagine the mess that we will be in when (not “if”!) polygamy becomes legalized in Canada. I am sure there are some proponents of same-sex marriage who may be morally or religious opposed to multiple partner marriages. But in another ironic twist, they, too, would then be forced to perform polygamist marriage ceremonies. Where will it stop?

What can be said all this from a theological perspective? Well,  on this front, I need to be clear: From a biblical and theological perspective, I can offer no reason to say that Christians must be able to perform each and every vocational or professional path that a particular society offers. As disappointing as it may be, Marriage Commissioners with theological convictions against same-sex marriage are not in an insoluble dilemma:  They can simply not continue to be marriage commissioners in order to protect their religious convictions. They, like anyone else in any vocation where they may be asked to go against their religious convictions, can quit. Thus, if a person has a religious conviction about working on a certain day of the week, and if her or his employer requires work on those days, as painful as may be,  that person is under no moral or religious or theological compulsion to keep that job. Quitting may cause hardship, indeed. But we need to be honest: theologically, one is not left without a choice. In this regard, I believe that God never leaves us without a genuine option. But God never guarantees that in the exercise that option, one will be free from suffering, pain, or in extreme circumstances, even death. We may not like the option, but we always do have one. That is, in a nutshell, the true freedom of a Christian—the freedom to suffer for doing what is right. As the Apostle Peter puts it, “But even if you should suffer for what is right, you are blessed. ‘Do not fear their threats; do not be frightened.’” (1 Peter 3:14)

Thus, we should be clear that as disappointed as we may be with this ruling, it puts no one in a true moral and theological Catch-22. There are other options to maintain our religious conviction. It is simply a sad irony that we live in a country that claims to protect religious conviction. Consequently, we need to realize that we may not alway be able to depend on such protections in the future. Our test, as Christians, will be whether we make the right choices when our religious convictions are truly tested. Will we make the right decisions for the sake of Christ and his Gospel, or will we find ways to justify and protect ourselves?

That said, however, I am very concerned that everyone who cares about religious freedom, whether Christian, Muslim, Hindu or others (not to mention the non-religious person with moral convictions), recognizes that this ruling may potentially create an environment in which with increasing measure future challenges to the expression of religious freedom will be possible.  In a few paragraphs within the Court of Appeal ruling, the Justice makes the point that the need to protect the religious convictions of marriage commissioners could be equally invoked by

those who sell marriage licenses, or those who rent halls for marriage celebrations, and disapprove, on religious grounds, of same-sex relationships. But more than this, it could just as easily, and with as much validity, be made by those who provide rental living accommodation to married couples, and even those who provide  restaurant meals or entertainment to the public. The desire of individuals providing these services to the public to withhold the service from same-sex couples, on grounds of religious disapproval, is not legislatively protected.

This argument, I suppose, could be made. But it wasn’t being made. No one was arguing for such a “slippery slope” here. Nevertheless, it does cause me to wonder: In what other conditions might agents of the State in the future need to have their religious convictions “checked at the door”? Will a police officer, for example, have any right to refuse to participate in a certain kinds of activity that might put her or him in a religiously or morally compromising situation? e.g., Carrying out undercover work in vice, or gang-related investigations? Will doctors be forced to check their religious convictions at the door and need to perform certain procedures to which they are morally opposed? Doctors are, after all, paid by the State. Will publicly funded lawyers be required to defend clients who are engaged in activities that are clearly against their religious convictions? I don’t know the answers to these questions. But they are questions that plague my mind as we begin to see the ripple effects of these rulings.

My concern is not so much about the religious rights and freedoms of Marriage Commissioners per se, but about how this ruling is a piece of evidence that the State is slowly but surely becoming less of a servant and protector of the people, and more and more a Schoolmaster of what is, for its people, acceptable and non-acceptable belief and practice. And since we still do live in a country where we have the “right” to have our voices heard, I believe we have therefore a responsibility to point out to the State the inconsistency of its own governance–and to pray for those in authority over us while we do this very thing (cf. 1 Tim 2:1-2).

Losing our Conscience in “The New Moral Order”

In his excellent article just released in Catholic Insight on November 10, 2008, Dr. Douglas Farrow of McGill University exposes what he calls the “The New Moral Order” being developed in Canada today. In this new order, Farrow argues, the older categories of:

1) natural law [the universal aspect common to all],
2) religion  [the covenantal aspect under which all are created], and,
3) conscience  [the personal aspect of moral response] 

are steadily being replaced respectively with the new categories of:

1) pluralism [i.e., the only thing universal is that we are all different);
2) secularism [i.e., rather than life under and before God, it is life without God]; and,
3) autonomy or individualism [rather than a personal adherence to a norm, it is personal adherence to oneself].

Now my own Barthian/Reformed sensitivities still prevents me from buying into my Doktorvater’s commitment to a notion “universal natural law” as is predominantly taught in Roman Catholicism. [The Cathecism of the Catholic Church says that “natural law is immutable, permanent throughout history” and is “a necessary foundation for the erection of moral rules and civil law.” (Catechism, art. 1979)]. I still prefer to think along the more Reformed (especially Calvin’s) notion of “common grace.” Yet even if you replace “natural law” with the idea of “common grace” which understands that the world “is not only created by God but upheld in its created existence and nature by his grace” (Karl Barth, Church Dogmatics, II/1, 117), I think that Farrow has rightly identified the three purely secularized replacements vying for recognition.

But beyond the way in which Farrow brought these three fundamental ideas together (along with their parodies) in such a precise fashion, I  found it especially illuminating how Farrow notes that conscience, traditionally understood, is the discipline of the self subjecting itself to a higher order. Conscience was, in other words, the testing of oneself–of “me”–to see if I was living in alignment with that which Iknew and believed to have binding authority upon me. To live and act according to conscience was in effect to say, “I will do what I know to be right and good on the basis of my acknowledgement that something or someone is higher than me.” Indeed, conscience, when it is working properly, is precisely defined (imagine that!) by Barth as “the place where man becomes one with God’s will” (CD I/1, 202).

But now, with autonomy and individual rights increasingly reigning the day, it has come to the place where even conscience must be obliterated, lest we find ourselves testifying even in a small way that we are subject to something outside of ourselves. To speak of conscience, in other words, is to admit that something (or heaven forbid, someone) is judging me. So, the last triumph of “human rights” talk will be when the conscience is completely redefined from “a moral agent’s internal compulsion to act in accordance to external authority” to mean “submission to one’s self, and to one’s self alone”–without the hassle of having to conform oneself in any way to something external or higher or larger or, to be sure, divine. As Luther, in his own characteristic fashion, once put it, “Conscience is an evil beast which makes a man take a stand against himself.” (Luther’s Works, American Edition, 7:331).

Though I encourage you to read the article in its totality on your own, I thought that Farrow’s penultimate paragraph was worth reproducing here:

What then shall we call this new morality, if not the morality of despair?  And with what shall we confront it, even and especially where it is most menacing, if not with the gospel of hope?  For despair, as Kierkegaard argued in Sickness unto Death, is the refusal to be oneself before God, and Christian hope is the right antidote to that.  Christian hope is grounded in the knowledge that God himself is for us in Christ, not against us, so that in Christ we may indeed be ourselves, and be ourselves before God. This, I think, is what Pope Leo XIII also had in mind when he said in Jesus Christ the Redeemer:  “The world has heard enough of the so-called ‘rights of man.’ Let it hear something of the rights of God.”

[You may also want to read Farrow’ previous article (also in Catholic Insight) where he comments on how the College of Physicians and Surgeons of Ontario is attacking the freedom of conscience of individual physicians to not perform procedures such as abortions.]

Exploring “positive secularity” (?)

Rather than burying this in a comment to a previous post, I’ll just start a new post…

First off, I probably should have dug a bit deeper on the concept of “positive secularity.” Sarcozy was hardly the first to suggest this idea, but was suggested already in 2005 by Pope Benedict XVI himself.

I don’t think we know nearly enough about the concept of “positive secularity” (see earlier post) to engage in a fair critique, or even to speculate if this idea has parallels to Canadian ideas. My intent in citing Sarcozy was not to critique him (even though I gave an initial, perhaps unfair, jab myself) but to explore whether the very idea of “positive secularity” could be a fruitful way to help us to begin to clarify why allowing religion into the mix in public dialogue has been so problematic. (Whatever Sarcozy meant or means by the phrase, while not unimportant, it is somewhat beside the point here.) That is, the reason I can’t critique “positive secularity” here is precisely because it is an idea waiting to be filled out–something I want to do here. The idea may not prove ultimately to be fruitful, but it is far too early in the conversation to conclude that. Thus the deliberate question mark in the original title of the post.

Before filling the concept out, though, we do need to be clear that I (and many others) see an important difference between “secularism” and “secularity”–terms which have often been thrown about as synonyms, when in fact they are not. While probably an oversimplification, the main difference is that “secularism” is an ideological stance, while “secular” or “secularity” is meant to describe an “actuality” or “state of being.” That is, the reality is that the Canadian system of governance is “secular”–it is a system of governance which at a practical level operates in such a way that no one religious position is privileged in the day-to-day governance. The question is whether that secular reality in governance has led to a view of the State that is ideologically committed to “secularism,” where not only is no religion privileged (“secular”), but religion is, a priori, barred wholesale from participation (i.e., “secularism”). Further, I want to point out that it is still unclear (at least to me) where the Canadian state stands between being “secular,” on one hand, and being being ideologically “secularist,” on the other. But it DOES seem clear to me that the population of Canada is far from being “secular”–Canadians are still very religious in outlook, even if we grant that there are many who see themselves as completely secular or non-religious. And herein is the dilemma we face: Is it possible to live in a “religiously diverse” context which is governed by a “secular state” and yet allow religious people (with religious ideas, no less!) to engage in the public debate (i.e., “positive secularity”)? Or does a secular state necessitate that religion be barred a priori from public debate (i.e., “negative secularity”, or indeed, ‘secularism’)? 

A question of the how “tolerance” is used these days was mentioned by Barry and Bill. While there are many problems with the way “tolerance” is thrown around these days as a watchword, I don’t think having a commit to tolerance per se is necessarily the problem. There is a positive and negative sense of tolerance as well. And just because we may think that the form of tolerance often appealed to in Canadian society is in fact condescending and negative, (and frankly, intolerant of those with religious views!), this does not mean that there is not a good (dare I say, biblical) view of tolerance that could be translated into a politically usable concept. Can we conceive of a country where the state allows for freedom for religious claims to be included in debates concerning the public good without necessarily saying that we have thereby now committed to allowing one religion to be privileged? Again, the contrast between “negative” and “positive secularity” might be helpful to show that a “secular” country need not necessarily be ideologically secularist, even if that seems to be the path we have been on.  

I think Sarcozy’s phrase “positive secularity” might be useful in helping us to ask this: Since our society consists of religious and non-religious alike, why is it that the “late modern liberal democracy” can only be understood to work best by shutting out all religious opinion in public dialogue and debate in favour of purely non-religious opinions and options? (This is what I am calling “negative secularity”, or perhaps more accurately, just plain old “secularism”).  Is it not possible to conceive of a country operating under a principle of “positive secularity” in which no one religion is de facto favoured in reference to goverance, but which nevertheless does not see its role as suppressing the reality of religious plurality in favour of a “non-religious” position as the only legitimate point of public debate? Is there not a way to allow Christians to speak AS Christians, and Muslims to speak as Muslims, and atheists to speak as atheists in public debate about public policy without necessarily privileging, before the debate begins, the non-religious position?

It is this sense of “freedom” that I think O’Donovan (as noted in my previous post) is trying to get us to think about. It is a freedom that we as Christians believe is enabled by what God has done in Christ–even a freedom that allows non-Christians freedom not to be Christian, even while Christians are free to be and to speak as–Christians. We are free to speak as Christians, and we are free to allow others to speak as non-Christians, precisely because under Christ’s authority, there is no human authority that is ultimately binding to conscience and conviction?

I like the way Karl Barth poignantly puts it, “[Christ’s] kingdom is neither a barracks nor a prison, but the home of those who in, with, and by Him are free.” (Church Dogmatics, II/2, 311).

“Positive Secularity”?

I saw this morning that the Catholic international news agency, Zenit, reported on September 12, 2008, that French President Sarkozy greeted the visit of Pope Benedict XVI with a speech that promoted what he called a “positive secularity.” Zenit quotes President Sarkozy as saying,

It would be crazy to deprive ourselves of religion; [it would be] a failing against culture and against thought. For this reason, I am calling for a positive secularity. . . . A positive secularity offers our consciences the possibility to interchange — above and beyond our beliefs and rites — the sense we want to give to our lives.

While Sarkozy unfortunately slips into a kind of “secular transcendence” by wanting an interchange “above and beyond our beliefs and rites” (if we talk above and beyond our beliefs, I’m not sure what kind of non-trivial things we would end up talking about!) I nevertheless like the basic connotations of the idea of a positive secularity (without knowing fully what Sarkozy really means by it). I like it especially if for no other reason than it highlights the potential for a different kind of societal ethos over against a “negative secularity” in which all religious interchange is ruled out of court in advance in favour of some supposed “neutral” (and I would argue, chimeral) non-religious standpoint. In fact, the notion of positive secularity arguably better allows for a fundamental commitment to freedom over against a negative secularity that finds itself in the awkward situation of having to limit freedom of religious expression and interchange of ideas to preserve a minimalist lowest common denominator devoid of all religious language.

Oliver O’Donovan rightly points out that a commitment to the Gospel is finally a commitment to freedom (cf. 2 Cor 3:18 – “Where the Spirit of the Lord is, there is freedom”), particularly freedom from the absolute political and religious claims of fallen humans. As he notes, by sending Jesus Christ, in whom all authority in heaven and earth rests, “God has done something which makes it impossible for us any more to treat the authority of human society as final and opaque.” (Desire of Nations, 253).

The challenges of what a positive secularity would look like are probably just as massive as the challenges of trying to figure out how to accomodate religious conviction in what appears to have been a failing experiement in “negative secularity.” But maybe this small shift from the negative to positive could be an interesting starting point for discussion about the place of religion in a secular society nonetheless.

Supreme Court to Rule on Hutterian Group Rights

The Supreme Court of Canada is about to hear a case between the Alberta Government and Hutterian Brethren over the matter of requiring picture photos on drivers’ licenses. (See official case summary here.) The Brethren faith community are convinced that to allow their photos to be taken is a violation of the commandment in Exodus 20:4 (“You shall not make for yourself a graven image.”) Whether or not we agree with that interpretation of Exodus 20 is irrelevant; what is relevant is that this case will be precedent setting.

According to a letter I received from the Evangelical Fellowship of Canada today, the case is important for two reasons: 1) It is the first case in which the religious rights of a group are being tested (over against the individual right of freedom of religion already guaranteed by the Charter of Rights and Freedoms and by precedents in law by previous court challenges; and 2) “this case is about the right of an identifiable faith community (group) . . . to establish and maintain its statement and standard of faith in a manner that does not cause harm to anyone, without government interference.” As the EFC letter goes on to explain, if the Hutterian Brethren lose this case, then there is every possibility that a precedent will be set at the highest judicial level by which other faith communities–confessional churches, schools, mission organizations, and denominations–will be open to future legal challenges to have the right to set its own doctrinal standards.

Without claiming to understand the intricate legalities of this case, I, for one, am alarmed and gravely concerned at what a negative ruling in this case could mean for communal religious groups of any kind, whether Christian or not. If a religious community is forbidden from living in accord to its own fundamental convictions in doctrine and ethics, there will be only two basic options left: 1) To submit to the constitutional and judicial authority on specific issues with which we are challenged; or 2) Find ways to live in civil disobedience so that we can obey God, rather than man. The tricky part, of course, will be knowing when #1 is still living in obedience to God, and when #2 is necessary to remain faithful to God. In a paraphrase of Niebuhr’s prayer, May God give us wisdom and the courage to know the difference.

What word might we Christians have to say about this at this time?

Full disclosure: I am currently serving as a Board member of the Evangelical Fellowship of Canada and therefore take it as my responsibility to encourage you to consider supporting the EFC in prayer and even financial support (if you are able). The EFC legal team will act as an intervener to this case on October 7, 2008.