When Rights Collide:
Equality Rights vs. Freedom of Religion

Four hundred years ago we would have been sitting in a Catholic Church whether we wanted to be there or not. In fact, going to church was such an ingrained part of culture that few of us by this stage in our lives would have let the thought of not having to go to church, and not obeying the clergy pass through our minds.

What has happened in the meantime? We are here because we have the right to be here, because the law has changed over the last 4 centuries first to give us the right not to be Catholic, then the right not to be Anglican, then the right not to be Christian. Some of us are proud of our own little quirky paragraph in the evolution of religious freedom, the 1813 Unitarian Relief Act which was passed so that it was no longer a crime to be Unitarian. Prior to that time Unitarians could not, for example be witnesses and testify in court because they could not take the oath on the bible. If you were the victim of crime which occurred at a Unitarian function or someone didn't repay money you loaned to them too bad, you couldn't charge them or sue them because you couldn't testify and your witnesses ( all good Unitarians) couldn't testify. So choosing to be Unitarian ( or non-Christian) had pretty wide-sweeping implications in many aspects of your life, well beyond Sunday mornings.

But Unitarianism was quite fashionable in the Britain of 200 years ago - Charles Darwin's mother and Charles Dickens were Unitarians - and no doubt this upper middle class group was responsible for putting pressure on the government so that the Unitarian Relief Act was passed.

And it is now part of our law right up to today. But we don't need to rely on it specifically to give us the right to be here this morning. Today every Canadian's right to religious freedom is enshrined in our constitution, the Canadian Charter of Rights and Freedoms and which provides:

s. 2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;..

So you and I can choose to be here and any other citizen can choose to be in any other church this morning, or to be sitting at home with a cup of coffee and the paper instead.

So this all feels pretty good. Religious freedom is good. What problems could ever arise through the exercise of such a fundamental part of our view of our rights as citizens? Well, that very same Charter goes on to say in the very next sub-paragraph:

s. 2 Everyone has the following fundamental freedoms:..

(b) freedom of thought, belief, opinion and expression...

and also goes on to say in:

s. 15 (1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Those also sound pretty good. We all want to be able to think freely. That's one of the reasons we're here. Free thought is a kissing cousin of the right to be Unitarian. None of us likes unequal treatment; we don't have much in the way of dogma here but one of our core values is the equal treatment of others.

There are some dark clouds on that feel good horizon of Charter values, however. What happens when a core value of one religion removes or reduces the ability of some of its members to their own separate beliefs or mandates that some members be treated in a manner which makes them less equal than others?

What happens when one person's exercise of his or her religious right conflicts with another person's right to freedom of belief?

Canadians generally have come to view ourselves as welcoming of others, tolerant, respectful of difference and prepared to accommodate, perhaps because we are all immigrants or descendants of immigrants other than First Nations people. It is as though Charter values, which are no more than the legal expression of moral thought, have seeped into our collective consciousness. But some worry that our tolerance for difference not be allowed to threaten the very values which we seek to uphold.

Canada now has the highest per capita rate of immigration in the world, particularly from non-European countries. Edmonton has one of the highest rates of immigration within Canada, thanks to our healthy economy.

Michael Adams in his book Unlikely Utopia tells us that diversity and multiculturism are a success story in Canada. The integration of immigrants is going surprisingly well. Canadians generally have a very positive view of immigrants. Canadians are very proud of their freedom, their democracy, their equality, one to the other. There is evidence of mutual acceptance among communities. Foreign born immigrants are much more likely to be elected to Parliament here than in any other country in the world and not only in ethnic enclaves. And what about our Muslim neighbors? From a large scale polling Adams shows that they have the same level of pride in Canada as do other immigrants. An amazing 91% of that community believes the country is headed in the right direction as compared to 71% of the general population.

But many Canadians are beginning to question our tolerance where it involves cultural or religious actions based on subjugation of women and other minority groups, actions which express values which may be seen at odds with both our laws and our most fundamental values. Because of that cultural connection, these unacceptable actions within our multi-cultural community try our tolerance, cause us to question whether we are too liberal, whether our immigration policies are too lenient, whether we are creating a country in which are peaceable ways are threatened.

We find ourselves having doubts. Members of our community, otherwise tolerant, begin to express secret feelings of anger or criticism at the sight of veiled women in our midst. As my colleague Sheila Greckol says while we might think that Hutterites at the market on Saturday morning, head-scarfed and in quaint dress lend local color and charm to our community, different emotions spring up at the sight of a burka on our streets.

This raises the question of the extent to which a liberal society is willing to protect beliefs or practices that it considers illiberal. Some who examine the conflict between religion and equality rights conclude that religions which oppose those rights are simply wrong and therefore equality rights must trump religious grounds every time. However, because my religious believes in accommodation of many kinds of differences I cannot leap to the conclusion that the issue of colliding rights is irrelevant on the grounds that no true religion would oppose equality rights or easily decided on the ground that my vision of the world is morally superior and should therefore triumph in all situations.

Rights and freedoms exist in a democracy not merely to protect beliefs and values that I agree with, or even that the majority agree with - in fact presumably one of the purposes of such freedoms is to protect beliefs which are out of step with values of the majority. Those rights and freedoms extend far enough to allow a person whose religion tells them they must accept less than other people to accept less than other people.

The issue is easier when the questioned conduct is a clear violation of the law. Killing your daughter is illegal no matter what your religion tells you that you can do. Recent sad examples are offered from both Vancouver and Toronto where fathers could not accept their daughters' choices to date non-Muslims or to refuse to wear religious dress.

A smaller but more immediate example for me comes up from time to time in processing applications for divorce. Most are uncontested and done with a paper application so we don't see the parties or hear live evidence. Every so often a file comes up where the mother gives up her rights to her children and all matrimonial property and, typically, the father does not ask for child support. This is not the usual situation. These days it's a rare case where the parents don't share custody. A quick look to the top of the first page confirms that the parties have Muslim sounding names. So what do I think then? Well, I wonder if Sharia law has been in play.

There is nothing to prevent parties trying to settle the issues arising from marriage breakdown with the help of others before they come to court. No problem except what if one of the couple gives up their claim to what they legally have and what might be best for their kids because their religion tells them to? There are Sharia tribunals in Alberta which assist couples on divorce and produce the type of settlement that I've just outlined. The kids go to Dad not because they would be better off with him but because his religion entitles him to have them.

An alert judge picking up one of these applications, consented to by all parties, will send it back not because the mother gave up her rights but because the law requires her to pay child support. No deal without her also paying child support. So, directly, the law does not protect her from giving up her rights. But indirectly, this process can assist a mother because these inquiries occasionally reveal that the children are still living with her, and the result of approving the original application would leave the father with complete rights over the children but not the day to day responsibilities and, of course, no obligation to help them financially. That one's not going to fly.

But there is nothing to stop an adult Muslim wife from signing away her rights to her children and her home, and agreeing to pay child support to boot because her religion has told her she must. She has the right to freely choose to let her own exercise of freedom of religion allow her to be treated as unequal. That is an aspect of freedom of choice that can be hard to witness.

Harder yet are those collisions of rights where law does not assist to provide a ready answer. What should we think then? Should then Marc Hall, the Ontario teenager who obtained a court order last spring requiring his Catholic school to allow him to take his boyfriend to the prom have been successful in the face of evidence that the school board's original prohibition had been based on catholic principles? He went to court and got his injunction and went to the prom but should his equality right have trumped his school's genuinely held religious beliefs?

Catholic and other denominational schools have separate constitutional protection which allows them to operate without being considered to be in violation of the equality provisions in the Charter. If Marc felt so strongly about his entitlement to publically express his right to be gay, why not also respect the right of his school to follow its own religious values even where he disagreed with them? Why not go to a public school where his right to bring a gay date would not have met religious hurdles at least? Just because you and I might agree with Marc does that mean he was right?

The opposite result arose in the Mennonite school in Winnipeg which was successful in defending against a human rights complaint that an accounting clerk was fired because she was Morman, not Mennonite. The school required all employees to involve themselves with students, attend chapel prayer meetings regularly, have students to their home for bible study sessions and be available at any time to discuss faith matters with students. Maybe it's ok that they are entitled to have staff who can sincerely participate in these activities, who share the faith.

If we started a Unitarian school how would we feel about being required to hire people who spoke out about their belief that gays should not have the right to marry or take gay dates to the prom. Wouldn't we feel that to be an unacceptable intrusion on our own right to religious freedom and the right to have our children educated according?

And what about those hajibs on the soccer field? Are they really a safety risk? Not likely. Twenty years ago a nose piercing looked startling when it appeared on a nose that was not clearly Indo-Canadian. Now it is not only commonplace but I have come to view it as attractive, kinda. Maybe those head scarves will fall into the same category a few years from now, as no more than a simple expression of choice made by some Canadians. I hope so.

The instructions we give out to speakers for Sunday services here at Westwood rather charmingly suggest that sermons not simply be an academic talk but each should include a moral "ought". So what is my moral ought here today? I leave you with this.

Some culturally mandated conduct of minority groups can be threatening but not all of it is. Let's be careful to separate out the conduct that does intrude on the freedoms of others from that which does not. Let's keep our analysis and discussion alive, to resist the temptation to close our minds to our long history of welcome of immigrants because of unacceptable acts by some while acknowledging that the choices others make are sometimes just that - choices.

Myra Bielby

We believe that everyone has the right to seek truth and meaning for themselves. The fundamental tools for doing this are your own life experience, your reflection upon it, your intuitive understanding and the promptings of your own conscience.

Added to archive May 11, 2008