Homophobia is perhaps the last bastion of outright hostility to and denigration of a particular group which is implicitly condoned by society at large. Yet, unlike so much bigotry that has been cast off as archaic, an appeal to religious grounds seems to suffice for an argument to defend the most vile of hate speech against the gay community. On legal grounds, however, this argument rests on an incredibly shaky foundation, but one which is firmly misunderstood by those invoking the freedom-of-religious-expression card. As the Supreme Court of Canada prepares to hear the case of William Whatcott -- a notoriously zealous self-hating homophobic prick ‘ex-gay’ cowering behind freedom of religion and speech to spread his message of intolerance -- this appeal to religion will be put to the test. Cases like these reveal the sheer moral bankruptcy of so-called ‘rights advocates’ -- let’s call them the ‘Levantists’ -- who champion the ‘right’ of individuals to say anything -- in this case, the dangerous queer-bashing equivalent of yelling ‘fire’ in a crowded theatre. How quickly rights bodies, such as the Canadian Civil Liberties Association, excuse away reprehensive and dangerous speech while defending actions which put an entire community at risk. Their argument that speech should be ‘countered, not silenced’ runs in the face of the history of human rights struggles and simple logic. They take an extremely myopic view, seeing any prohibition as an evil to be countered. Such blanket apologias are wrongheaded and dangerous; they ignore the denial of rights to those communities targeted by hate.
The key aspect of religious freedom is not practice, but thought and belief. The contents of the mind are completely out of the reach of the state. There are no limits to thoughts. However, once these thoughts materialize in the public realm, this unlimited condition quickly dissolves. Thoughts, now expressed externally, become subject to public and, ultimately, government scrutiny. Yet there’s a strange duplicity at work in the religious mind, particularly as it relates to the public sphere. The argument is made often and has a common refrain: teaching gay issues in the classroom runs counter to the teachings of the church and, thus, violates Charter rights to religion or that gay pride is an affront to my beliefs and violates my right. This duplicity is also highlighted when it comes to other religions and belief systems, particularly in alarmist claims of Sharia Law will be imposed on Canada (I believe this is the Cult of Steyn). In essence, it is a denial of the public space to others, even other religions, made, antithetically, with an appeal to religious freedom. The argument also smacks of cultural imperialism and the perpetuation of a now bygone theme of Canada as a “Christian Nation”.
What is presumed is a positive right to express religion in whatever place and whatever means. Moreover, and quite astoundingly, such arguments often take as implicit not only that this expression may and must extend into the public realm, but that it also has an effect on other individuals. Taken to its maximum expression, the argument assumes a right to conduct oneself in public as one sees fit, without sanction from society and, more incredulously, that others must adjust their own behaviour to suit narrow religious practice. Quite the contrary, this right of religion - like the others - is purely negative and need not be affirmed or sanctioned by the state.
Liberty, within Reason
Even the most ardent defender of individual liberty -- John Stuart Mill -- recognized distinctions between types of freedom and the need to moderate it, particularly when others are concerned. Indeed, writes Mill:
There is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or, if it affects others, only with their free, voluntary, and undeceived consent and participation (10).
Here he includes absolute freedom in thought and sentiment, but notes explicitly that liberty of expressing and publishing fall under another principle as “it belongs to that part of the conduct of an individual which concerns other people” but notes its near inseparability from freedom of conscience. Indeed, Mill defends the free utterance of falsehoods -- indeed, he says “the usefulness of an opinion is itself matter of opinion” anyway (19) --on the grounds that even these have utility. They serve to bolster the truth and make it clearer, avoiding becoming ‘dead dogma’ (29).
The tension in Mill comes when thoughts and conscience move solely from being internalized within the individual to being manifested in the public sphere. Freedom of expression essential to our individuality and human well-being, enabling growth and development. The basic proviso remains in place: “The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people” (46). The tension is heightened, however, when individuals come into contact with each other on a direct or indirect level. Mill’s argument works best as a negative prohibition against government interference in an individual’s liberty but becomes much more complicated otherwise. As a result, the applications he provides offer little help (drinking, taxation, crossing a dangerous bridge).
Canadians, with the protection of the Charter, are more than free to avail themselves as a ‘nuisance’ to others. Speech acts require not only an utterance but a receptive audience. As such, they are not isolated within the individual and, in most cases, are meant to be seen and heard. While any written material or image will always require interpretation, and this will vary by the individual, the argument is ludicrous if taken to its end. Where opinions differ, the state and ultimately the law become the final arbiter. This is particularly the case when such material induces violence or threatens the rights and safety of an identifiable or vulnerable group. Unlike other vulnerable groups targeted by hate -- in Canada, largely, but not limited to Jews and Muslims where crimes are often limited vandalism -- the queer community is disproportionately targeted physically (see Janoff). Indeed, there is a disproportionate response given that graffiti attacks on Jewish sites of worship -- while deplorable-- illicit immediate condemnation and outrage from the Premier and the opposition leader despite being purely symbolic and having only claimed property. Meanwhile, queer individuals are beaten and murdered with alarming frequency, yet this does not illicit a response from Queen’s Park. A non-partisan Parliamentary coalition reports on rising anti-Semitism, yet extreme homophobic violence, where individuals and not property are brutalized is not deemed a crisis. It is regularized, expected and, ultimately, tolerated. Coupled with the fact that homophobic expression is far more socially accepted than religious or racial slurs, the chances that speech will spur violence is increased. The increased visibility of the LGBT combined with less than adequate responses to homophobia and homophobic violence render the queer community particularly susceptible to salacious, derogatory and incite violent reactions. One need only look to the example of the targeting of sex offenders through the innocuous use of a fairly neutral registry to realize how powerful words are.
Clearly there are limits to speech, but those restrictions should be in place only so far as to prevent violence or active discrimination. In William Whatcott’s case he claims he is not inciting hate with his printed material but rather is commenting and warning against behaviour. Even if we are to believe, as Whatcott claims, that he is targeting ‘sexual behaviour’, the way in which is does it is inherently problematic and renders his argument deficient. First of all, contrary to his claim, he is not targeting sexual behaviour at large but the particular sexual behaviour of an identifiable group: homosexual males. Certainly he is correct in his assertion that behaviour is not protected under the law. However, the problem resides in his spurious linking of all homosexual males with the kind of behaviour he describes in his literature. Indeed, this claim is self-defeating as it illustrates precisely that he is not targeting behaviour but the what he perceives to be the behaviour of a particular group. Had he railed against child abuse in all its forms rather than zeroing in on gay men only, his argument could have been valid. As it stands, however, it is quite inconsistent.
Much of Whatcott’s factum attempts to undermine the judgment of the lower courts, particularly the interpretation of the material by arguing that the criteria are far too broad to be considered a reasonable limit. Whether the law is or is not too broad is not particularly interesting. It amounts to a decision over an essentially arbitrary line. What is interesting, however, is the continued insistence upon religious expression as a positive right. Religion is, at its most basic, a matter of conscience and belief. If the state impedes the ability to conduct one’s religion -- for instance, ban prayers for Muslims or some other active prohibition on private religious practice -- then the rights of the Charter have been breached. The right to practice religion in the public sphere, in public places and to doing so where it impacts others has been limited. Two cases -- one siding with the religious argument, one not -- are instructive here. First, the 2006 Multani case found in favour of the appellant who, arguing on behalf of his son, won the right to wear the ceremonial dagger -- a kirpan -- concealed under clothes in the classroom, as per tradition. In a second case, Alberta vs. Hutterian Brethren from 2009, the court ruled that requiring photo ID drivers licences was a reasonable limit under the Charter. Each dealt with the expansion of religion into the public sphere, yet arrived at different judgements. In the former, there was no proof of harm from the kirpan and, thus, there was no purpose in the ban. In the latter, the court found that the overreaching safety concerns of the province outweighed this particularly religion belief (particularly as the government had offered several compromise solutions). Each, however, illustrate the firm limits on the extension of religious practice into the public sphere and firmly closes open arguments agitating for positive rights to public displays of religiosity.
The appeal to ‘freedom of religion’ has become, to borrow a well worn aphorism, the last refuge of a scoundrel. When appeals to free speech, and to common notions of decency and respect in legitimate speech are exhausted, religion is trotted out as a trump card. Whatcott’s appeal to authority is itself grounded in another century altogether. His citing of Justice Southin’s own questionable assertion that arguments against homosexuality could be drawn from reason (yes, indeed, if reason is stretched to it’s limit or placed in an historic context). Moreover, his contention that Blackstone’s grounding of law in nature -- and by way of Nature, in God -- is accepted among legal scholars today is a preposterous (19). Whatcott is barking up the wrong tree entirely in trying to ground his beliefs in reason or religious beliefs. That he holds them to be part of his beliefs system is not something that needs to be proven. What is at stake, however, is the limits of how he may legitimately express them. He conclude this section by claiming that religious positions are equally legitimate in the public sphere, which, as I have indicated, it utterly false. Beliefs may be claimed to be equally legitimate in any sphere, what is not ‘equally legitimate’, however, is how they manifest themselves in the public sphere.
Whatcott continues an already moot line of reasoning into his next section, arguing that religious belief conflicts with ‘sexual behaviour’. Certainly he is correct in pointing out that sexual behaviour of the same sex is looked down upon by religion in most cases and that it is fair game to oppose same-sex marriage or homosexuality as he so chooses. He is mistaken, however, as his speech act is not criticism, but speech framed in such a way as to stir up hatred. He goes on -- as he tends to do -- to make another outlandish claim: criticism of homosexuality would lead to the repression of criticism of premarital sex or adultery “based upon the orientation of heterosexual people”. This asinine statement is so logically flawed, yet it reflected an underlying problem outlined earlier. First, I don’t think he really means that premarital sex and adultery is a heterosexual thing (although, following What-logic, since gays can’t get real married, they can’t have sex before something that can’t exist and, related to that, can’t cheat if they don’t have real relationships). Regardless of this insane statement, again the problem is that he’s moving from particular to general. Again, he ignores that it can’t be discriminatory if it applies to everyone. Second, the problem isn’t with criticism but with the nature and form: the vile, hate-mongering homophobic form it takes.
Whatcott’s next section, a pity-party in which he lists the discriminatory statements made against him by the courts can simply be described as a Hudakian argument about the ‘gay agenda’. Essentially gay pride parades amount to evangelical outreach in which pseudo- religious teachings are transmitted to our young. This is particularly true in the schools where kids are
Moving on: Whatcott’s statement of religious beliefs includes the usual assortment of cherry-picked theological tidbits. Conspicuously absent: the whole ‘love they neighbour’ spiel.
Rights -- despite popular contention to the contrary -- are contingent and often conflict with one another. Homosexuality, however, it is received by the religious establishment, does not impact in any way the ability of religious believers to practice fully their faith. Whatcott argues counter to this, but in a thoroughly inconsistent way, claiming that the homosexual sexual acts in someway impede the practice of his Judea-Christian beliefs. For example: “In this case, the freedom to engage in same-sex sexual activities had trumped fundamental freedoms, and in particular, the freedom of some religious people to criticize such activities” (Factum, 28). How it is possible for acts between consenting adults -- in a purely private setting entirely away from those of faith -- to impinge upon the freedoms of others? Moreover, the excerpts from magazines Whatcott distributed were found in literature expressly for gay males and unlikely to be seen by outsiders. Again, it is difficult to see how the existence of something can act solely by metaphysics to prevent some other unrelated phenomenon. He continues: “Religious people, however, have frequently been denied the right to act upon their belief that same-sex conduct is unreasonable and harmful” (28). This wrongly equates belief and action as one and the same. Moreover, if homophobia is such a central feature of religious belief the core of that system can only be described as hollow and lacking moral weight. The argument furthermore cannot differentiate dissenting opinions and hate. It cannot make a distinction between expressing objection and doing so in an unreasonable manner. Clearly it is not a blanket prohibition, but one built upon acceptable limits of discourse in a public sphere. Essentially this argues that any prohibition on conduct -- whether the means are expressly indicted in scripture or not -- must be tolerated under the rubric of religious freedoms.
Perhaps, what is most pronounced in this factum is the complete disregard for the rights of others. It elevates religious expression above other Charter rights without explanation and attempts to get around sexual orientation provisions by instead attacking ’sexual acts’. Since the sole target is homosexual men -- both straights and lesbian women are entirely ignored -- it becomes clear that the aim was indeed a targeted attack on a particularly group by focus on particular attributes. Indeed, since it is largely gay men who have sex with other men, it is hard to argue that his bile is directed at any other group. Apart from a denial of rights, there is a total disregard for worldviews -- even religious world views that embrace gay members -- that run contrary to his own. The claim is made that “sexual behaviour and sexual morality are matters of religious teaching” (35). This disregards evidence that sexuality is not a choice but something inherent and inseparable from an individual. The bulk of his arguments rests upon the assumption that his worldview is dominant and, ultimately, correct. Regardless, even if his view was shared with the majority of society (and informed by religion), the court has affirmed that such views cannot be forced. For instance, in the Big M Drug Mart case, the ban on Sunday shopping was overturned as it denied freedoms to groups who differed from the Christian prohibition. It is worth noting that the case did nothing to undermine religious practice as it did not force Christians to work or shop on Sundays (and they remained free to preach against it, though most relented) and as such had direct relevance to the Whatcott case. Simply because the view is no longer hegemonic or enforced by the state does not render religious freedom diminished.
Finally, Whatcott turns his attention to the ‘Oakes Test’ and finds that the Human Rights Code cannot be saved under section 1. Only under and expansive view of religious and speech rights would this be the case. First, the state has a clear objective and, in the case of the LGBT community, this concern is particularly heightened. Second, there is a rational connection: limiting the scope and means of speech is directly related to the prevention of hate crimes. Moreover, there is minimal impairment. The core of religious beliefs remain intact and the message of intolerance can still be spread, albeit in a less vitriolic, hate inciting form. Finally, the means is proportional. It tones down the rhetoric and prevents severe trauma to the queer community, possibly saving lives.
Simplistic, but Common Arguments
While Whatcott may appear as a fringe character -- a self-loathing man, unsure of his own identity and confused by the heteronormative world around him -- his views are by not means limited or novel. Homophobia is, to a large degree accepted, if not officially sanctioned by the state often glossed over or excused away. Incidents of violent homophobic attacks and bashing, even in the supposed queer havens like Toronto or Vancouver, remain all too common. Numerous brazen attacks attest to this. Moreover, if ever there was a problem of unreported crime, this would be it. Incidents of taunting, bullying, verbal harassments and physical violence remain so routine that they are expected and ultimately shrugged off.
The same heteronormative religiously tinged rights language is play out in Ontario’s Catholic Schools. There is not point debating whether or not parents have a (so-called) ‘right’ to indoctrinate children in their own believe system. The argument is likely to be lost and the least likely anyway to persuade. What is interesting, however, is the framing of education rights and the binary that is sets up. First, education is not thought of as being solely -- if considered at all -- about the rights of students to be in a nurturing environment to learn and grow as human beings. Rather, the debate here is narrowly constructed around a parent’s rights again, to indoctrinate and direct the development of the child’s social and ‘spiritual’ identity. Somehow the right of the child is lost and metaphysically transferred to the adult guardian, no doubt for safekeeping. This is problematic enough in and of itself. Education in this setting becomes adult-centred, no child-centred. Secondly, and where the binary is constructed, is the idiotic mutual exclusion of queer and catholic. In the minds of parents, instructors and, no doubt, the Pope himself, the two as regarded as wholly incompatible states of being. The nonsense of this claim is patently evident, yet so frequently lost in translation.
An irony here, of course, is that the dangers of indoctrinating youth in the religion of the parents (or state) would no doubt be exemplified by the extra-circular activities of a young Joseph Ratzinger coming of age in the utopia of the German Reich. Needless to say, it probably didn’t look like this.
The sum of this simply points to the utter hypocrisy and inconsistency in the rights dialogue of those promoting homophobic hate speech under the guise of religious freedoms.The point is not to debate if this is hate speech or not -- that is for the courts and states to delineate (although in my opinion it is) -- but rather to reveal the inherent weaknesses, built-in contradiction and clear inconsistency in arguments which defend hate speech on the grounds of religious freedom. They are built upon a false reading of the Charter’s free speech provisions, which they read as positive rather than negative. The right is negative, in which the state must refrain from interfering, unless valid under section one of the Charter, from infringing on rights to thought and expression. There is no requirement for the state to act as an enabler of religious freedom and certainly no right to use the public sphere without regulation. Moreover, claims that the existence of homosexual rights or same-sex activities infringes on religious freedom is ludicrous. It defies logic and stretches rational thought.
The Whatcott case will be yet another high profile case of a bigot hiding behind his Charter rights to abuse a marginalized group, promote hate and infringe upon the rights they enjoy under the same Charter. In a way it defies the impetus of the Charter, particularly its equality provisions. Whatcott and his ilk are presuming a privileged place within the Constitutional firmament, a place that, until the implementation of the Charter they readily enjoyed. The spirit of the Charter is balance, not about one set of rights winning out at the total expense of the other. Certainly not all rights can always be in equilibrium, but a compromise is usually possible. Sadly, for those, particularly on the religious and conservative right, that document is viewed through the lens of the American Bill of Rights, in which rights are not “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” but absolute and individualistic. Whatcott illustrates that, while those who freely abuse the rights of others readily hide behind the Charter, they have no understanding of the relationship between rights and responsibilities, nor do they care.
Citations and Suggested Readings
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 S.C.R. 567
Canadian Charter of Rights and Freedoms
FACTUM OF THE RESPONDENT, WILLIAM WHATCOTT
Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256, 2006 SCC 6
R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295
R. v. Oakes,  1 S.C.R. 103
Douglas Victor Janoff Pink Blood: Homophobic Violence in Canada (Toronto: U of T Press, 2005)
Kathleen A. Lahey Are We 'Persons' Yet? Law and Sexuality in Canada (Toronto: U of T Press, 1999)
Bruace MacDougall Queer Judgements: Homosexuality, Expression and the Courts in Canada (Toronto: U of T Press, 2000)
John Stuart Mill On Liberty