Catholics and Other Christian Groups Will Weigh in on Freedom of Expression

There was a time when the Catholic Church (and others) didn’t have to appeal to the earthly law in order to enforce its demands. The church’s doctrine was the law, and its leaders the judges, jury and executioners. Thankfully, that is no longer the case, and in modern democracies, church is separate from the state, the rule of law rests in the hands of legislators elected by citizens and judges chosen for their knowledge and prudence, rather than their adherence to dogma (in Canada anyway).

As a result, churches cannot simply impose their will on society any more; they cannot say and do without qualification all the things they believe their dogma requires of them; and when someone offends them, they have to make their cases before courts like other citizens. The Catholic Church in particular walks a fine line when it comes to demands for freedom of religious expression and freedom of speech. A current appeal before the Supreme Court of Canada puts these rights in question.

The Saskatchewan Human Rights Commission’s appeal of the Whatcott freedom of expression case (PDF) to the Supreme Court of Canada is scheduled to be heard in October 2011. I am following it very closely and have written about it and related issues previously on Slaw, here, and here. The aim of the appeal to the Supreme Court is to obtain direction on the proper balance between the rights to free expression and freedom from the harmful effects of publications that incite discriminatory actions or contain extreme discriminatory words and images.

The Catholic Civil Rights League (CCRL) has been given intervenor status and has tabled its factum (now available online). The CCRL and 22 other groups, including the Evangelical Fellowship of Canada and the Christian Legal Fellowship believe this case will determine the fate of religious freedom and free expression. Meaning, they hope the Supreme Court will strike down the laws that allow human rights commissions (or tribunals) to limit freedom of speech and religious expression.

According to the CCRL, at stake is the right for Catholics and other Christians who believe church teaching about human sexuality and morality (specifically, teachings against homosexuality and same-sex unions) to speak publicly about their beliefs. The Catholic Civil Rights League is not defending the merits of Whatcott’s views or “the language he chose to express those views”, but is concentrating its arguments on the way “unpopular opinions” have been labelled “hate speech” under the law.

In its factum, the CCRL argues that Section 14 of the Saskatchewan Human Rights Act is confusing, contradictory and cannot be reconciled. Section 14(1) lists many forms of speech that are restricted in Saskatchewan under the law.

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that he owns, controls, distributes or sells, any representation, including without restricting the generality of the foregoing, any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right to which he is or they are entitled under law; or

(b) which exposes, or tends to expose, to hatred, ridicules, belittles or otherwise affronts the dignity of any person, any class of persons or a group of persons; because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance.

Section 14(2) says that nothing in subsection (1) restricts the right to freedom of speech under the law.

The CCRL says the subsections cannot be harmonized. Thus, they cannot and should not be enforced, and should be invalidated.

The CCRL also argues that:

• Section 14 of the Saskatchewan Human Rights Act is not consistent with the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression in Section 2(b)
• Section 14 infringes on freedom of expression
• This infringement is not justified under section 1 of the Charter which states that the Charter is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Freedom of religion is a constitutionally protected right, allowing believers the freedom to express themselves without limitation or interference, similar to the protection that exists in the United States. But freedom of expression has limits, particularly when it comes to citizens’ right to be free from discrimination and discriminatory hate speech. Thus, the current idea of religious freedom as a human right remains a contested topic. The actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in various areas, such as employment, on the grounds of a variety of personal characteristics, including religion.

The Catholic Church was not always such a keen defender of freedom of religion or freedom of speech. For example, the Roman Catholic Church kept a tight rein on religious expression throughout the Middle Ages; consider the Spanish Inquisition when anti-church dissent was quashed and the unfaithful (i.e., non-Catholics) were expelled from Spain or killed. More recently, and closer to home, there is the influence the Catholic Church had on the province of Quebec (and continues to have in some regions); clergy not only exercised a top-heavy influence on their followers by keeping them in relative ignorance, but also by isolating them from the rest of the world, which contributed to the increasing economic inferiority which came to mark the province and remained severe until the recent past.

At those times, the church believed there should be limits (reasonable or not) on individuals’ rights to express themselves if that expression was contrary to the doctrine of the Catholic Church and religious beliefs.

How things change when we lose a great amount of influence and power! We will see how much influence the intervenor churches continue to exert over society as this appeal unfolds.