“A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal,” says the 66-page judgment.
“This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”
(From a unanimous 11/1/16 decision of the Appeal Court of British Columbia, describing as “unreasonable” efforts by British Columbia’s law society to deny Trinity Western University’s future lawyers the opportunity of working in the province as lawyers; quoted by the National Post; emphasis added)
It is heartening to see a court on this continent, for a change, not indulging knee-jerk assumptions that anti-discrimination laws trump deeply-embedded freedom of religion. If anything, I believe that this historic and constitutional/textual protection of religious liberty should make it trump — though I’m not prepared to say that categorically lest some jerk in the name of religion shove egg in my face.
At the very least, there’s a real contest, the “game” is zero-sum to some players, and blithe dismissal of religious freedom is an alarming omen.
Now if we can just sneak some common sense across our northern border …
… where some major mucky-mucks could stand a good dose:
Jumping into the fray over civil liberties vs. religious freedom, the U.S. Civil Rights Commission issued a report Wednesday that is sure to anger conservatives with this central finding:
“Religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights,” the report said.
The chairman of the commission, Martin R. Castro, went to the hot spot of the debate with a separate statement in the report that uncloaks what often, but certainly not always, lurks behind protestations about freedom of religion.
“The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance,” Castro wrote.
(Joe Davidson, Civil rights or religious liberty — what’s on top?, Washington Post, 9/9/16)
If the implication is not clear from the previous item, I do not consider freedom from private discrimination, or private business discrimination, to be a “pre-eminent principle” of American law, as the U.S. Civil Rights Commission says in a portion of its report not quoted above. Our history is nowhere near as simple as that. It’s facile to make every choice or unchosen trait the equivalent of race for purposes of anti-discrimination law, statist to make every business a “public accommodation.”
The British Columbia Court “gets” religious freedom to a depth unknown to the U.S. Civil Rights Commission — or to Justice Anthony Kennedy, for that matter.
Richard Garnett, an expert on the U.S. Constitution at the University of Notre Dame Law School, dismissed Castro’s statement as a “partisan talking point.”
“The key point that Chairman Castro’s statement fails to appreciate is that ‘religious freedom’ is not in tension or competition with ‘civil rights’ — it is a civil right,” Garnett told the Register.
“Of course, we often face the challenge, in a pluralistic and changing society, of balancing rights and interests. This challenge is not helped by painting and dismissing those with different views as bigots.”
(Joan Frawley Demond, National Catholic Reporter)
Hillary Clinton gets no prizes for prizing religious freedom, either:
[D]eep seated cultural codes, religious beliefs and structural biases have to be changed.
(Hillary Clinton, April 23, 2015)
Caveat: The context of Clinton’s remark was a speech to the Women in the World Summit. Politifact put it this way:
[Clinton] talked about the rates of maternal mortality, domestic violence, lack of access to education and “reproductive health care.” She said that laws must be enforced to protect those rights “and deep-seated cultural codes, religious beliefs, and structural biases have to be changed.”
But Politifact also notes:
Clinton’s speech didn’t only pertain to far flung countries — she was making a statement to religious conservatives in the United States.
“America moves forward when all women are guaranteed the right to make their own health care choices, not when those choices are taken away by an employer like Hobby Lobby,” she said. In 2014, the U.S. Supreme Court ruled that certain companies with religious objections can opt out of a mandate under the Affordable Care Act to provide free contraception to their employees.
“One would like to imagine that Clinton was speaking only about primitive cultures where children are forced into marriage and childbearing, or where genital cutting is common,” wrote Kathleen Parker, a conservative columnist for the Washington Post. “But we know that she also meant religious conservatives closer to home whose beliefs get in the way. She explicitly criticized Hobby Lobby for not paying for its employees’ contraception.”
I do not believe that Clinton limits her anatipathy to religious freedom to the most barbaric cultural practices (note that “cultural”: I don’t think any religion mandates, say, female genital mutilation, though the line between culture and religion can be very vague). This — not economic policy, continued profiteering through her foundation, or (supposedly) terminating inconvenient Americans with extreme prejudice — leaves me unable to vote for her.
UPDATE to Item 1: I meant to add this. The ABA has adopted a Model Rule of Professional Conduct that will in some instances chill free speech and free exercise of religion.
The proposal would create a “new Rule 8.4(g) that would make it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” High sounding words indeed — but words that, if adopted by state bar associations, would empower those who run state bar associations — largely establishment lawyers — to selectively discipline and even disbar individual lawyers whose values are traditional rather than progressive.
May those who officially adopt or don’t adopt ABA Model Rules have the good sense to reject this vague virtue signalling — good sense like Canada’s.
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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)