Sexual politics and language

The National Post, 31 August 2021

Earl Manners, president of the Ontario Secondary School Teachers' Federation, declared last Friday that private schools are a hotbed of “homophobic beliefs.” Though such an accusation – made, it seems, by a self-righteous union official with a transparent agenda – is easily dismissed, Mr. Manners’ usage touches on a larger issue. Of all the words bent with Orwellian cynicism into blunt ideological instruments, “homophobia” is currently the prime example. It is time for a moratorium on its use in any discourse aspiring to intelligent debate on human sexuality.

The word, in its literal sense, refers to an entrenched fear or dislike of the male sex or, more generally, of human beings. The Oxford English Dictionary refers us to Chambers's Journal (5 June 2022): “Her salient characteristic was contempt for the male sex as represented in the human biped... The seeds of homophobia had been sown early.” By the early Seventies, however, in part under the influence of the Manhattan psychotherapist, George Weinberg, the word was being used to refer to any aversion in the general population to the persons or practices of the homosexual minority.

This redefinition of the word was part of a deliberate attempt to turn the tables on those who believed that homosexual behaviour was itself related to an unhealthy aversion to so-called normal men or women. Indeed it appears that “homophobia” and “homophobic” were semantically retooled for one crucial purpose: to identify those who regarded homosexuality as a sign of psychological or moral difficulty as witnesses against themselves, that is, against their own mental or moral health. In short, if homosexuality were no longer to be regarded as a form of mental illness – it was struck from the list by the American Psychiatric Association in 1973 after a brief but intense form of institutional warfare – another such illness would have to take its place. That illness was homophobia.

Whatever one makes of the arguments about homosexuality, the view that Weinbergian “homophobia” is an illness is highly dubious. No one doubts that that there are people who express their secret fears in the form of social or even physical violence against homosexuals. And such people, whether heterosexual or homosexual, can rightly be said to be ill; in some cases, they might even be said to be evil. But one of the many problems with the current usage of the word homophobia is that it is not being used chiefly to refer to the psychological condition of such people. Rather, it is being applied to anyone at all who is not ready to assent to the proposition that homosexual behaviour is a social good, or at all events good for those who are inclined to practice it.

As a matter of fact, one does not even need to harbour any such skepticism in order to receive a bloody nose from the “homophobia” charge or something very like it. Consider the fate of two of my McGill colleagues, whose only crime was to answer the government's call for an expert opinion on the history and social merits of reserving the category of marriage for stable heterosexual unions. Their email systems were jammed by a risible petition circulated by something called Project Interaction: The Gay, Lesbian, Bisexual and Two-Spirit Initiative of the McGill School of Social Work (a quite unofficial body, I hasten to add, which presumably wishes to see the definition of marriage expanded to include communities of three or more). Neither their academic work nor their personal views would support a charge of homophobia, on any definition, against these scholars. Yet the petition boldly asserts that it is “unacceptable and unethical” for the university even to employ such obvious enemies of the people. So much for civil discourse.

But there are better reasons for a moratorium on the use of this word in good company – heterosexual or otherwise – than the bad company the word itself is in the habit of keeping. The best reason is that the word is designed and deployed to prevent, rather than to promote, reasoned debate about a fundamental aspect of our common humanity, and of the common good.

Civil rights could trip at the prom

The Globe and Mail, 9 May 2022

Just as the famous Tennessee “monkey” trial was not really about the defendant, John Scopes, the lawsuit against the Durham Catholic District School Board is not really about the plaintiff, Marc Hall. Mr. Scopes was a science teacher and coach, who wasn't sure that he had, in fact, taught the theory of evolution, though some Tennessee teachers certainly did. The case against him was arranged by the American Civil Liberties Union as a test case; the defendant himself was never in any danger of actual harm or loss.

Mr. Hall, for his part, is unsure (for the purposes of the suit) whether he engages in homosexual acts, which he admits would be contrary to Catholic teaching. He only knows that he is homosexual, and that he would like to take his boyfriend to the prom, where he promises that no sex acts will occur. His suit, it seems, has been designed to test the limits of the Catholic Church's resistance to homosexuality, just as the Scopes case was arranged to test the limits of resistance to evolutionary theory in public education.

The Prom case presents itself in non-symbolic terms. Mr. Hall, we are told, is not trying to overturn Catholic teaching, which he and his supporters argue is too vague to be overturned in any case. He’s only trying to get to the prom with his date. Thus the case turns on resolving an apparent conflict “between an individual Charter right to equality and the constitutional denomination rights of Catholic school boards,” as Paul Cavalluzzo, lawyer for the Ontario Catholic teachers, puts it.

This is disputable, and is being disputed before the court. It is precisely the symbolic dimension – the Scopes factor – that makes the case interesting. Mr. Hall's suit cannot be a defence of his individual liberty, since that has not been challenged. He is not obliged to attend this school, or to attend the prom with a girl, or even to attend it at all. Since the choice of school was his, it canot be a defence of his right to equality or to freedom from discrimination. Arguably it is not a defence at all, but an attack: a bold attempt to seize and to occupy a symbol of his community's beliefs and social fabric.

It is disingenuous to disavow the symbolic nature of the Prom case, or to deny that it is really about an issue, homosexuality, rather than a person, Marc Hall. It is likewise disingenuous to pretend that it does not challenge the Church's teaching about human sexuality. In fact, Mr. Hall is wrong about that teaching. It is not the Church’s position that there is nothing wrong with homosexual orientation, so long as one does not undertake homosexual acts. The orientation itself is understood as a disorientation, one of many deleterious effects of the Fall such as afflict us all.

What is at stake in the Prom case, disguised in the hired tuxedo of equality rights, is whether or not the Church is entitled to hold such a view, and to act upon it in public, institutional ways. And, conversely, whether or not the courts have any mandate to adjudicate or alter religious doctrine, or to determine which vision of human sexuality should prevail in public life.

But this means that the Prom case is really a freedom-of-religion case. There is a deep irony here. Those who think it obvious that Mr. Hall, like Mr. Scopes, must be vindicated should think again. The Prom case, if ultimately settled in Mr. Hall's favour, will not promote but diminish liberty. Indeed, by attacking the Church's freedom, Marc Hall has attacked his own freedom – not only insofar as he himself intends to be a Catholic, but in that he intends to be the citizen of a country which will permit him to be a Catholic. Let’s hope that this irony won’t be lost on the court, lest in taking an illiberal step towards the suppression of religious freedom, it rules for Mr. Hall only to discover that it has, after all, ruled against him.

Appealing for human dignity

The National Post, 30 July 2002

Yesterday the Justice Department announced its decision to appeal Halpern v. Canada. I have been reading this document, and have reached the surprising conclusion that even homosexuals should be glad of this appeal. Indeed, they and their fellow citizens – and eventually a higher court – should reject Halpern in principle. Why?

Mr. Justice LaForme justified the unanimous decision to strike down the common law definition of marriage as unconstitutional on the grounds of what he calls its “many egregious infringements” of Charter rights. If I dare say so, there are more egregious infringements of reason in Halpern's arguments than there are infringements of rights in the common law definition of marriage. But this is not the place to make good on that claim, nor is it necessary to agree with me on that to agree that Halpern should be rejected in principle.

The reason why it should be rejected in principle derives neither from a point of law nor from a point of logic. It does not derive from an argument over the meaning of marriage, or whether there is a public consensus to change the meaning of marriage – or even whether such a consensus could possibly warrant the redefinition of marriage. It derives rather from the Court’s misunderstanding of its task of upholding human dignity.

The Ontario Superior Court has largely accepted the view of the applicants, and of their intervenors, “that ‘marriage’ represents society's highest acceptance of the self-worth and the wholeness of a couple's relationship, and thus touches their sense of human dignity at its core.” [§103] That refusing to recognize homosexual unions as marriage is “demeaning because it impugns this group's ability to love and [so] affronts all Lesbians and Gays.” [§212] That, in denying them “the autonomy to choose whether they wish to marry,” it also “conveys the ominous message that they are unworthy of marriage.” That, for those who wish to marry, it “represents a rejection of their personal aspirations and the denial of their dreams.” [§429]. Justice LaForme thus fittingly concludes his own account of the situation with a quotation from Martin Luther King, Jr.: “Now is the time to lift our national policy from the quicksand of injustice to the solid rock of human dignity.” [§475]

In other words, the Court has made the assumption that society's high regard for marriage implies both a corresponding regard for the human dignity of those who enter into it, and a corresponding disregard for the dignity of those whose mode of life, while analogous in important respects, it does not deem to be marriage. Indeed, the latter's ability to love and their worthiness to marry are called into question along with their dreams. It is not merely that their autonomy is threatened – one cannot, after all, have autonomy in the matter of society's approbation – but that their sense of intrinsic worth is threatened by this lack of “full acceptance.”

We might well ask in response whether society’ high regard for marriage implies any such things, but that would be to miss the most important point: namely, that the Court has deemed it necessary to protect the appellants from this alleged affront to their “sense” of dignity. Now this is not unusual. To pose the question of human dignity in terms of a person's, or a group's, self-image is today a matter of course in pursuing court-constructed Charter law. But this as much as anything accounts for the fact that “the solid rock of human dignity” is itself slipping into the quicksand of injustice. For self-image and self-perception can never provide a stable foundation for the concept of human dignity.

It is equally important for homosexuals and for heterosexuals to face up to this. It is absolutely vital that our judges and legislators face up to it. But Halpern has most certainly not faced up to it. On the contrary, it has further entrenched the erroneous notion that respect for one's human dignity is intrinsically linked to respect for one's self-perception; that equality rights imply the right to full acceptance. Full acceptance is something no court and no legislature is in a position to dictate or to deliver. Therefore law that aims at it is bad law. As for self-perception, it is both a facet of our freedom from the law and an internal threat to that freedom. Because it is prone to attack by a host of insecurities, flatteries and deceptions – because it is ever-changing – it is a potentially treacherous friend which ought never to be allied with the law. Above all, it must not be made the guardian of our human dignity.

This single mistake – though not its gravest – is sufficient to warrant Halpern's rejection in principle. It also accounts for at least one of its logical inconsistencies. The implication of the applicants' claim that the common law definition violates “their sense of human dignity at its core” is that the definition itself derives from a deep-seated prejudice. And what does that prejudice represent if not those other people's contrary sense of human dignity, rooted in their own self-perception? But how then can the definition be declared unconstitutional without creating a reverse violation?

Clearly we will never get anywhere this way! Good law cannot be made to rely on the unreliable gauge of self-perception. It must rest rather on a sound understanding of what human beings are, of how human dignity is derived, and of what actually supports human flourishing. It is a sign of Halpern’s impoverished understanding of human dignity – an impoverishment dangerous to heterosexuals and to homosexuals alike – that its glance keeps on returning to this faulty gauge. And it is very much to be hoped that the impending appeal will effect a reversal of its procedure.

Carving out a safe space for the secular

The National Post, 9 October 2021

“The Secular Road to Religious Freedom” was the title over a Robert Fulford column last January. I was reminded of it when reading a piece by John Russell in The Advocate, on the Chamberlain case, entitled “How to be Fair to Religious and Secular Ideals within the Liberal State.“ Both men endorse the thesis that (in Fulford’s words) everyone will “be better able to maintain their beliefs in freedom if the political world holds no religious views” but “offers only reason, and an umbrella to shelter the diverse faiths that flourish among us.”

Mr. Russell elaborates this thesis under the rubric (borrowed from Will Kymlicka) of “liberal neutrality.” The theory of liberal neutrality goes roughly like this: The state serves as a kind of referee regulating the competition between religions, and between the religious and the non-religious. It refuses to take sides with this or that world view or way of life, but makes sure that there is some kind of space for adherents of each, so long as they play by the rules. The state makes sure that the distribution of public resources (including “the social bases of respect and dignity”) is fair. That is, it concerns itself with justice, with equality; not with the good, or with different conceptions of the good. It concerns itself strictly with means, which are public, not with ends, which are private.

Dr. Fulford’s appeal to this kind of thinking was offered in support of his suggestion that Anglican primate, Michael Peers, shouldn’t have complained so peevishly about the marginalization of religion in public affairs (e.g., at the 9-11 memorial). The referee, after all, should not be embracing the players. Mr. Russell’s appeal was made in hopes of influencing the Supreme Court’s impending decision on Chamberlain v. The Surrey School District No. 36. Chamberlain, it seems, is right: a secular society is one in which faith in “two dads” ought to be given equal time with faith in “one dad,” even among kindergarten students.

Now it occurs to me that Mr. Russell might find an ally in Michael Peers, but I musn’t get sidetracked with that. It is not the Chamberlain decision that interests me so much as the theory which both Fulford and Russell want us to buy into. Indeed I am confident that the theory most interests those two gentlemen as well. I want to offer just a couple of reasons – though there are many others – for mistrusting this theory.

The first is its re-definition of the role of reason. Classical thought, both Greek and Christian, would never allow that reason has any lesser goal than pursuit of the good. Nor would it allow any such dichotomy between means and ends, or between the public and the private, as this theory devises. That “liberal neutrality” rests on the assertion of such discontinuities and dichotomies marks it out as a distinct world view in its own right: as a philosophy and perchance even a theology (for philosophy always comes, sooner or later, to theology) that must be content to compete on the field, and not pretend to be a referee. One does not have to adhere to one or another of the classical world views in order to admit this. But “liberal neutrality” by definition refuses to admit it. For this pretence it ought to be ejected. Players are not allowed to play in a referee’s jersey.

The second is its re-definition of the secular state as the saviour of religion. It may seem rather ungrateful, even churlish, to object to “liberal neutrality” on the grounds that it understands secular society as a society that is not essentially hostile to religion. Nevertheless, I prefer the good old-fashioned animosity of the militant secularist to this further posturing. At least the militant secularist doesn’t take his stance on someone else’s platform.

Once upon a time it was the Christian religion which carved out a safe space for the secular. The very concept of the secular state is in fact a Christian one. The state is “secular” because it is strictly provisional, owing to the fact that it belongs to an age (saeculum) that is passing away, an age that will be – and in some sense already has been – superseded by the kingdom of God. The secular state is a liberal state alright, but it is neither opposed to religion nor does it fancy itself the referee of religion. It is liberal because it has learned something about freedom, from the truth that makes us free. It is liberal because it is modest, and it is modest because it knows that it is temporary, not because it imagines itself to be neutral.

There is indeed a religious road to secular freedom, one from which our society has wandered. It is time to have another look at the map.

To approve or not to approve

The National Post, 27 December 2002

“To approve or not to approve, that was the question” facing the Surrey, B.C., School Board, wrote Justice Gonthier for the minority in the Chamberlain judgment. And apparently it will be again, for the majority decision was to remand the question to the Board for reconsideration. This time it will have to get its answer right, by sticking to “the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non-sectarianism underlying the School Act.”

It will be interesting to see whether the Board gets it right or not. Will One Dad, Two Dads, Brown Dads, Blue Dads be approved for the K-1 kids of Surrey’s sad dads and mad dads? It will be far more more interesting, however, to see where our society as a whole goes from here, guided by the broad principles of tolerance and non-sectarianism. For the important thing about the Chamberlain decision is that it attempts to offer some clarification of these principles.

The Supreme Court of Canada has rejected the idea that the requirements of secularism and non-sectarianism (as found in the School Act) render religious beliefs irrelevant in public schools. “Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door.” The problem with the School Board’s rejection of the books promoting same-sex parenting as a valid family model is not that this rejection rested in part on religious reasons, then, but that it was “exclusionary” – that it offended against tolerance.

The clarification about secularism is welcome, as far as it goes. Secularism is not anti-religion, it is simply pro-tolerance. But how exactly shall we understand tolerance? This latter word and its variants occur in the judgment some sixty times – as, for example, in the following sentence: “The School Act's emphasis on secularism reflects the fact that Canada is a diverse and multicultural society, bound together by the values of accommodation, tolerance and respect for diversity.” Words like accommodation and respect are regularly used to fill out its meaning.

The members of the Court agree, in Chief Justice McLachlin’s words, that “the demand for tolerance cannot be interpreted as the demand to approve of another person's beliefs or practices.” (Or as Justice Gonthier puts it, the language of tolerance should not be employed “as a cloak for the means of obliterating disagreement.”) According to the majority, however, the demand for tolerance may indeed require approval in this sense: that those with whom we differ must receive “equal recognition and respect” not only as persons but, in some cases, as representatives of a valid way of life. In the case in point, the School Act is said to mandate both “mutual understanding and acceptance of all the family models found in British Columbian society and its schools.”

Now “all the family models” (a phrase not found in the School Act) needs to be glossed, and is glossed, by a qualifying phrase that refers to a “lawful way of life;” for some family models may represent an unlawful way of life and so be disqualified. But with this qualification the Court has settled the question as to how the School Act should be read. Yet just here another and more important question arises, which has still to be answered: Is everything that is lawful equally profitable? And if not, should it be deemed worthy of equal recognition and respect?

To ask this more important question is to ask whether or not Canadian society, in aiming at being a fair and just society, can hope to be a wise one. Under law, all things lawful are equally lawful. What is more, under the Charter of Rights, all rights are equal; there is no hierarchy of rights. But when we pass from the confines of jurisprudence to the broad places of human prudence per se, a hierarchy appears – a hierarchy of goods – which the law ought also to take into account.

It is this hierarchy of goods which gives unity to every human life and to every society. Without identifying it and conforming to it, no person and no political body can expect to hold together for long. The problem with pure tolerance as a political or as a legal principle is that it simply doesn’t work; it is devoid of cohesive power. It is a negative principle, not a positive one, and the attempt to transform it into a positive one is a colossal mistake. The Court didn’t invent this mistake, of course, but under the influence (I would argue) of a still-flawed view of what it means to be a secular society, it appears to be making it when it opines that Canada is “bound together by the values of accommodation, tolerance and respect for diversity.”

The people of Surrey, like the people of Canada generally – if they are to retain a reasonably cohesive society – need to agree on a great deal more than that they respect diversity. Can they do so, can we do so, by following the path that the Court appears to be marking out for us? I do not think so. Down this path lies not increased understanding and supportive co-existence, but a loss of tolerance even in the narrower or more literal sense, of bearing with one another when we disagree. Alienation and frustration will eat away at tolerance, to everyone’s great loss.

What a very long way we have already come in such a short time! I can still hear Pierre Trudeau, when accounting for his 1969 Omnibus Bill (C-150), pointing out that it is right and necessary to make a distinction between sin and crime. Indeed it is. But can we still do so? Or does the legality of something mean, ipso facto, that it is worthy of public support – even that the public, qua public, may be bound to offer it some support?

To approve or not to approve, that is the question. By which I mean, not whether the Surrey School Board should approve or reject (on some new basis) three rather silly booklets, but whether or not our society has any basis for continuing to approve or disapprove of anything that is legal but morally disputed. If it does not, we are doomed to collective amorality, and to social and legal disintegration.

Culture wars are killing marriage

The National Post, 7 May 2003

The Canadian Kulturkampf is heating up, now that the courts are speaking as one on the marriage issue. Marriage is a discriminatory institution, a violation of Section 15. It must be abolished. All that remains is for Parliament to prepare the funerary legislation.

The conceit that the courts' remedy is not an abolition of marriage, but merely its re-definition, is just that. As a monogamous heterosexual union, marriage competes with other models (including homosexual and polygamous ones) for structuring sexual and domestic arrangements in human society. When prised open by legal force to one or more of these competing models, it is effectively destroyed.

The conceit may be necessary in order to escape the charge that the courts are actually ordering illicit alterations to the 1867 Constitution Act, but a conceit it is. One can no more capture the essence of marriage by talking about “the union of two persons” than one can capture the essence of slavery by talking about an asymmetrical support arrangement. Such abstractions only obscure the definitive features.

Marriage is not merely a union of two persons. It is a gendered union with specific social goods attached. The state – which did not invent marriage and has no authority to re-invent it – rightly takes an interest in marriage on account of these goods: stability of community and property, of human reproduction and the care of children, of cross-gender and cross-generational bonding, etc. But the courts’ new definition eliminates all of this, by substituting for a gendered phrase (“one man and one woman”) its genderless one.

This neutered definition mandates a new and different institution with extremely limited – and still unproven – social goods. The new institution will attempt to live off the name and earnings of the old one, but it will not be able to do so for long. Indeed it will not survive for very long, since it will not really be an institution at all but a mere legal fiction, and an incoherent one at that. Here are a few of the reasons for its inevitable failure.

First, it is not obvious that it should be “a union of two persons to the exclusion of all others.” Is not the very idea of an exclusionary institution dubious? In any case, this restriction will affront the dignity of bi-sexuals and polygamists. No appeal to the needs of children will suffice to defend it, since the new institution uncouples marriage and procreation, making an orphan of the latter. Besides, it has already been decided that a child can have several parents. Nor should it be overlooked that, in same-sex unions, a third party is required in order to produce children. No, “two” will not stand up.

Second, it is not clear why this new institution should be sexual in nature, or at least why the state should take any interest in whether it is sexual. The same argument that was used to exclude procreation as a defining feature can be used to exclude sexual activity altogether. Why should two (or more) spinsters, mutually reliant in every other way, be excluded because they don't venture into each other's erogenous zones? What interest can the state – Trudeau's state! – possibly have in whether they do or don't? “Union” need not mean sexual intimacy.

Third, it is doubtful whether this institution should concern the state in the first place. Are people living in pairs better citizens than people living in other forms of community? Take reproduction and cross-gender bonding out of the picture, and what picture is left? What is there of vital interest to the state? In other words, why set up this alternative to marriage at all? Enlightened by our Charter we will rid ourselves of marriage, as (enlightened by the Bible) we did of slavery. Why not leave it at that?

Fourth, the major religious communities will likely refuse to endorse this new institution, and many will refuse to participate in it. This will highlight its character as a legal fiction. The public will lose interest in it, and it will cease to be the bearer of any status in society. As such it will not be coveted, and will no longer do even the limited service it was created to do, viz., satisfy the appellants’ demand for approbation.

Some, however, will still covet the respect the religious communities reserve for marriage. As the B.C. judgment [Barbeau] anticipates and the Marc Hall case illustrates, they will continue to sue. And then the courts will find themselves having to choose between Section 15 equality rights and Section 2 freedoms. This is not supposed to happen and the remedies for it are – as yet – virtually unthinkable. Some of these remedies, while claiming to balance Section 2 and Section 15, will dangerously erode freedom of speech, freedom of association, and freedom of religion.

Charter jurisprudence, I fear, has allowed itself to become a combatant in this culture war. That is why it has chosen to sacrifice marriage on the altar of a spurious equality right, and to attempt to resurrect it as “the union of two persons.” This is a futility in which Parliament is about to become complicit. If it does, it will only drag Canada deeper into a quagmire of competition between two incompatible visions for society: one which sees marriage as a tried and tested good which must be privileged, and one which out of jealousy refuses to privilege it, consequences be damned. Is it really too late to turn back?

Marriage and religion are public affairs

The National Post, 31 July 2003

Should the state get out of the marriage business? That's what Barry Cooper and David Bercuson recently argued in these pages. The state's retention of an interest in marriage, they suggested, is inconsistent with Trudeau's dictum that the state has no place in the bedrooms of the nation. What is more, it violates not only the bedrooms but the churches of the nation, to which marriage questions rightfully belong. Marriage, in other words, is not a public affair, and neither is religion. Leave the one to the other and complete our retreat from the interventionist state.

This argument is being heard more often these days. I suggested something like it myself in this newspaper a few months ago, when I insisted that the abolition of marriage will be the outcome of the government's current course of action. I was taken up (sans sarcasm) by Russell Smith in The Globe and Mail: “Why not eliminate marriage as a legal category altogether, and leave it as a religious one?” asked Smith. “We don't issue legal certificates for confirmations, circumcisions or bar mitzvahs. Why not leave marriage to the churches and temples and covens?” But, with all due respect, the argument that the government should abandon marriage will not stand much scrutiny, for it is built on a series of half-truths.

Let me try to deal with it in the form given it by Drs. Cooper and Bercuson, beginning with some comments on Trudeau's dictum. The notion that the state has no place in the bedrooms of the nation is both true and false. It is true as a matter of criminal justice, which requires a distinction between sin and crime. It is true as a matter of human rights, which include the right to privacy. As a matter of family law, however, it is false. The state has an interest – not a controlling interest but an interest just the same – in family life and human reproduction, for these things belong to the foundations of society. Hence it cannot entirely ignore the bedrooms of the nation any more than it can ignore, say, the private laboratories of the nation where reproductive technologies are pursued; or the divorce courts, where the details of the nations' bedrooms sometimes spill out.

Now, according to Cooper and Bercuson, “interpreting the will of God” is what the marriage controversy is really about. Getting the state not only out of the bedrooms, but out of marriage altogether, will disentangle it from this essentially religious struggle. In taking this view they are echoing that of the Law Commission of Canada in Beyond Conjugality: “Contemporary Canadian understandings of religious freedom and equality require that the state not take sides in religious matters. The history of marriage regulation in Canada has thus been characterized by a progressive uncoupling of religious and legal requirements, reflecting a growing emphasis on the separation of Church and state in a secular and pluralistic political community. Our current understanding of religious freedom requires that laws and policies, including those that regulate personal adult relationships, pursue objectives that can be defended in secular rather than religious terms.”

But this too is a half-truth, however balanced it may sound to the pious secular ear. Whether we like it or not, the state cannot fail to take sides in certain religious disputes. The LCC itself has done so right here, in its own decision to make marriage a sub-category of what it calls “close personal adult relationships.” For to do that is already to disagree with the major religious traditions about what marriage is, and to side with the view of a small religious minority and a somewhat larger anti-religious movement.

Yet another half-truth is found in the notion that religion, like sex, is not public but private. One of the ironic aspects of this debate, and of our society, is that as sex has been getting more public – a fact that makes Trudeau's dictum increasingly irrelevant – religion has been getting more private. It's okay to stroll down a Toronto street with nothing but sandals on, if you do it in a “gay pride” parade, but not okay to stand (clothed or otherwise) near an abortion clinic and pray to God that people won't kill their babies.

But who says religion is private? Cooper and Bercuson do, though it is not clear to me by what authority: “Religion is, and is accepted to be, in the realm of the private, not the public domain.” Of course it all depends on what you mean by private. Private in the sense that the state can't give it and the state can't take it away, yes. Private in the sense that it is a mode of life not publicly conducted, or that it has no direct bearing on the common good or on public policy, no. Historically, semantically, and philosophically that is less than half a truth. It is no truth at all. Insofar as the state adopts this private view and imposes it on the public, it will find itself more, rather than less, entangled with religion. The people Cooper and Bercuson don't yet see on the streets will be there.

And here we must identify one more half-truth. Divorcing marriage might simplify things for the feds, but only for the briefest moment, as Beyond Conjugality makes clear. It most certainly will not simplify things for Canadian citizens, who will have to contend with a whole new range of interventionist statutes. Here is one citizen, at least, who doesn't want the government (or the Law Commission) trying to regulate his close personal relationships, thanks just the same! Putting up with the botched job it has done with marriage is trial enough.

Of cock-ups and conspiracies

The Montreal Gazette, 18 August 2003 (under another title)

Once upon a time I had my own radio show, but only recently did I reacquaint myself with the inside of a broadcast booth. As fate would have it, I braved the bowels of the massive CBC establishment in Montreal for a joint interview (conducted from Toronto, of course) with two other notorious “social conservatives.” We made a curious trio. One was a swim-suit model who, among other things, holds a university chair, regularly writes in the national papers, and visits the CBC so often that the ghost of Peter Gzowski greets her at the door. One was a gay social researcher, who also happens to be Jewish, and is co-writing a series of controversial books on gender relations. And me, of course, the student DJ who eventually found better things to do.

There were at least three things that united us, however, beyond the fact that we know each other pretty well and were willing to do the interview together. One was that each of us objects to being labelled. Another was that each of has a principled objection to conservatism. The third is that we become a little less sociable when the CBC labels us “social conservatives.” Remember, this is the same institution that gave us the word “fishers.” Not as in the sexist little gospel ditty, “I will make you fishers of men” – which should have been “fishers of women and men,” only that didn’t scan (how about “fishers of fishers”?) – but so as not to offend that largely fictional creature, the lady fisherman who doesn’t like being called a fisherman.

To be perfectly fair, though, there was one other thing that bound us together, namely, that we were all prepared to do as we had been asked: to try, for the love of sheer perversity, “to make the case against same-sex marriage.” And that, for our bias-free public broadcaster, makes us social conservatives beyond a shadow of a doubt.

Anyway, we arrived at the broadcast booth at the appointed time, about ten minutes before we were to go on air. It was deserted. No lights, no power to the board, no technician, not even enough microphones. When the technician did arrive – at barely five minutes to air – he behaved in a most unusual fashion for a technician. I won’t bore you with the details, except to say that though we did manage to link up with Toronto (sharing microphones at first) we had to conduct nearly the entire interview while listening to loud background chatter in our earphones. This in spite of the fact that yours truly would jump up from time to time, gesticulating wildly at the technician through the glass. Perhaps he thought this was a deeply engrained classroom technique I had learned at McGill. Or that, like most social conservatives, I was subject to uncontrollable public fits, which it was impolite to notice.

Now let me offer this disclaimer: I know nothing about the reasons or motivations behind an episode which my swim-suit model friend tells me was the worst experience she has had in twenty-five years of regular broadcasting. And I hasten to mention that the producer in Toronto, who may well have been more upset by this curious episode than we were, immediately sent an apology to us. So let’s assume the best about the CBC. This was an aberrant, entirely apolitical breakdown in the broadcast booth rather than an attempt to sabotage anything so obviously hopeless – pitiful, one might say – as a defence of marriage. Marriage, that is, understood as an institution that exists mainly for the sake of children, and ought therefore to continue to be a gendered institution which connects children to their biological parents.

Give or take the apparent inability of our guest interviewer to follow any argument that didn’t lead to her preferred conclusion, that lets the CBC off the hook. Mistakes happen. I made one or two myself in my days in the booth. It was a cock-up, in other words, not a conspiracy. I wish I could say the same for the marriage debate itself, or rather for the grand farce that is being played out in place of a marriage debate. But I can’t.

Take, for example, what I saw on the CBC website this week. It was our Justice Minister’s latest statement about his new legislation, the innocuous-sounding Act Respecting Certain Aspects of Legal Capacity for Marriage: “Justice Minister Martin Cauchon … told reporters that if homosexuals were told they could only unite under a civil union rather than through marriage, it would send an unfortunate message that, ‘Less than equal is less than adequate.’” Just ignore the fact that this garbled sentence actually says the opposite of what one presumes the Minister meant to say. Notice instead that our Minister of Justification appears to be about as discerning as our unnamed CBC interviewer. What she didn’t get, he doesn’t get either: The institution of marriage is not about rating people’s love-lives. It’s about children and what’s best for children. And the hidden premise of so-called gay marriages (which, in case you hadn’t noticed, don’t produce children) is that children are a secondary issue at best. Children are quite definitely less than equal players in the great drama of Gay Rights. Set that down as the new legal marker for Canadian society, Mr. Cauchon, and see where it takes us.

But being a bit dull is no crime, even for a Justice Minister. And it certainly isn’t evidence of a conspiracy. That catchy slogan, “Less than equal is less than adequate,” ought to give us pause for thought, however. Can the man who mouthed it have voted in 1999 to uphold the common-law definition of marriage as a heterosexual, family-oriented institution? Can the government he represents be the same government that promised to make no changes to that definition, and even incorporated it into Bill C-23? Help me out, Martin! Help me out, Jean! It may be less than clear whether you have immortal souls to give some account of before your Maker, but you do have an electorate to give some account to at the next election. Tell us: Was “less than equal” adequate in 1999, before the courts told you otherwise? If not, which is the real cock-up? Bill C-23 or your new (and, as your bishops would say, unnatural) Act? Or were the machinations of a few years ago just a bit of a stall until a more opportune time?

Either some folk are even duller than they seem, or there’s a whiff of conspiracy in the air.

Behold the armies of the Lord

The Globe and Mail, 22 August 2021

Roy’s Rock – the illegal monument to the Ten Commandments which Roy Moore, Chief Justice of Alabama, is refusing to remove from the lobby of the State Supreme Court – should have been a burning bush. For it has the potential to help both America and Canada to decide whether, and how, the ground on which our respective societies stand is holy ground.

Judge Thompson of the Federal District Court, who ordered the monument’s removal, insists that it is not. America stands on secular ground, thank you very much, not holy ground. What offends him about the monument is that one cannot miss its “religious or non-secular appearance.” Indeed, to do so, one would need “to walk through the Alabama State Judicial Building with one’s eyes closed.” This violates the separation of church and state, according to Judge Thompson. It might also lead to a nasty bruise or two.

Judge Moore, on the other hand, who is rumoured to have compared himself to Moses, thinks that America and its legal system do stand on holy ground. “He believes that America’s laws get their authority from the Bible,” says the New York Times, which notes the similar beliefs of Alabama’s Attorney-General, Bill Pryor. The Ten Commandments, insists the latter, “are the cornerstone of our legal heritage.”

This argument is beginning to rage on both sides of the border, and shows no sign of extinguishing itself in the near future. Canada, of course, has no official “separation of church and state” dogma, but its status as a secular society is widely trumpeted throughout the land, and recent court judgments have expended significant energy on the problem – for example, Chamberlain v. Surrey School District No. 36 looked at whether a School Board had wrongly excluded for religious reasons children’s books featuring homosexual parents.

Now one doesn’t have to be a judge to see that there is a difficulty here. Some of that difficulty is linguistic. Take “holy,” for example, which basically means “inviolable.” Judge Thompson’s secular state is just as holy to him as the religious basis of the law is to Judge Moore. Appeal to the term “secular” likewise doesn’t resolve much. Properly speaking, “secular” does not mean “non-religious,” but simply “temporal”– belonging to the present age rather than to eternity. And in that sense Judge Moore’s legal tradition is just as secular as Judge Thompson’s state.

But the difficulty isn’t merely linguistic. How do we square the separation of church and state, as popularly understood, with the confession “one nation under God”? In Canada, how do we square the “secular society” notion, as we find it in common parlance, with the Charter’s preamble, which links confidence in the rule of law to belief in the supremacy of God? Canada, says the Charter, is “founded upon principles that recognize the supremacy of God and the rule of law” – something our Prime Minister, for one, appears to have forgotten.

Perhaps we can’t. Not long ago, the British Columbia Court of Appeal (R. v. Sharpe) described the preamble as “a dead letter” into which the Court had “no authority to breathe life.” Ironically, however, it found itself appealing to two prominent biblical metaphors, which come together (with a backwards glance at Moses) in 2 Corinthians 3:6. Shades of Roy’s Rock! A religious heritage is not so easy to shake off as all that.

Back to Chamberlain. The B.C. Supreme Court and the B.C. Court of Appeal were at odds over whether secular principles leave any room for “religious considerations.” In what may have been a burning bush moment for the Supreme Court of Canada, it decided that the School Board had erred. But it also made clear that a secular society is not a society, or need not be a society, with an aversion to the religious. Secular and religious are not antonyms. Which means that one does not have to park one’s religious beliefs at the door of the School Board office, or of other public spaces, in order to engage in a secular function. Perhaps, then, one need not avert one’s eyes either, when walking by a statue of Moses receiving the Ten Commandments.

The standoff at Roy’s Rock will not be resolved by the fines Judge Thompson has levied against Judge Moore. It will not be resolved by guides to lead the blindfolded safely to their destinations inside the Alabama State Judicial Building. (That would produce a classic case of the blind leading the blind, on the assumption that the guides, as state employees, would need to be blindfolded themselves!) For Roy’s Rock is but a symbol of a much larger problem. If we are to overcome the standoff at Roy’s Rock – that is, if we are to reach some meaningful consensus about the relation between religion and public policy in a secular society – we will need to dispense with the notion that the state and its legal apparatus are to be religion-free zones.

Now that conclusion doesn’t put Judge Moore altogether in the clear. He is no Moses, and God may not deliver him from the fines imposed by his judicial Pharaoh. He may not have the better of the argument either, in important aspects. To say that the secular is not a religion-free zone hardly settles all such disagreements. It only gives us a chance to work them out more amicably. So before we cheer the arrival of the removal crew, we might just allow that Roy’s Rock has something worthwhile to teach us. Maybe Moses – the real one – does too.

The marriage debate is not a human rights debate

The National Post, 8 October 2021

New Zealand’s Bill of Rights, unlike Canada’s Charter of Rights, mentions sexual orientation as a prohibited ground for discrimination. In 1999, however, New Zealand’s highest court rejected the claim (Quilter v. Attorney General) that this implied a capacity and a right for two homosexuals to marry. Last year the United Nations Human Rights Commission concurred, refusing to hear an appeal. Yet Canadian courts are claiming that such a right exists, and have declared marriage, as a heterosexual institution, to be a transgression against basic equality rights. The Canadian people and parliament are profoundly uneasy about this, and should be. For the Canadian courts, with the blessing of ideologues in the Justice Department, are queering human rights discourse.

The human rights argument goes something like this: Marriage is a close personal relationship between two adults, involving sexual intimacy, which is formalized by public vows and public recognition. The traditional stipulation that the adults in question shall be of different genders denies to same-sex unions the public legitimacy of heterosexual unions. In so doing it demeans homosexuals and affronts their dignity, by implying that their capacity to love is deficient or that their love is somehow unworthy of public approbation. Adding a minor injury to a major insult, it also denies them one or two legal privileges they do not already enjoy. For these reasons it must be denounced as a human rights violation and disallowed under Section 15. Marriage must be redefined as a union of two persons without consideration of gender, so as to become inclusive of all Canadians.

Now this conclusion has been attacked for all sorts of reasons. Chief among them are the false notion of human dignity on which it rests; the fact that it dissociates marriage from procreation, and children from their natural parents; the threat it poses to freedom of speech and religion, protection of which in the proposed legislation is hopelessly inadequate; and the ripple effect of celebrating homosexuality on public policy matters such as school curricula. (Not to put too find a point on it, at just what stage in your son’s schooling would you like him taught the best ways of sticking his penis up another lad’s rectum?) Some people have begun to think quite hard about such objections, as I discovered recently at a fascinating meeting of academics, lawyers, publishers and politicians from across the country. But too few people seem to have noticed that the human rights argument itself is just plain wrong. More than wrong, it is dishonest – a piece of subterfuge that discredits the label “human rights.”

First, there is a dishonesty in saying that marriage has been an exclusionary institution. On the contrary, marriage has always been a universal institution to which every Canadian adult has access in principle, even if for various reasons (homosexuality among them) some adults find themselves unsuited for it. Due recognition of this fact would already take most of the steam out of the human rights engine that is driving the Canadian marriage debate off the rails. But there is a still more serious dishonesty that we must notice, a dishonesty lodged in the basic structure of the human rights argument.

The conclusion of that argument is that marriage must be redefined as a union of two persons, so as to protect the equality of homosexuals. The conclusion only follows, however, because marriage has already been redefined in the argument’s very first move. A new way of understanding marriage – not as a heterosexual union with unitive and procreative purposes, but as a “close personal relationship” between two sexually intimate adults – has been imported at the outset. The “two persons” language demanded in the conclusion is already there, implicitly, in the first premise. The argument, in other words, is circular.

It may be true that marriage – if indeed merely a union of two persons – would violate equality rights were same-sex unions disallowed. The following syllogism sums it up: Marriage is the loving union of two persons. Homosexuals are capable of loving unions with one another. Therefore homosexuals can and should be permitted to marry one another. This begs at least two rather obvious questions, viz., what compelling public interest do “loving unions” serve, whether homosexual or otherwise, and what test of authenticity (if any) shall we subject them to? But that is not my objection. My objection is that the definition of marriage is exactly what is at issue here. No definition can be used like this to prove an equality right, or to demonstrate a rights violation, until the viability of that definition has already been settled on other grounds.

In short, the debate we Canadians are having about marriage is not actually a human rights debate. It is a debate about what marriage is, or what we would like it to become, which has been disguised as a human rights debate so as to provide leverage in the courts. It is hard not to interpret the actions of those intent on maintaining this disguise – not to speak of those judges and politicians who take cover behind it – as betraying a certain cynicism about human rights discourse as such.

Douglas Farrow