Freedom of conscience
and marriage
CARSON JEREMA STAFF
In 1984 Alberta pharmaceutical company Big M Drugmart sued the government for the right to open on Sundays. The argument used by Big M was that the Lord’s Day Act violated the company’s right to “freedom of conscience and religion” guaranteed in Section 2 of the Charter of Rights and Freedoms.
There is little doubt that Big M’s motivation was not religious but rather commercial. Yet the ruling, aside from highlighting the potential for the manipulation and abuse of the
Charter, demonstrates very clearly that the state has no business in an individual’s religious practices.
This concept is of particular importance today when it comes to the issue of marriage. Stephen Harper, if he becomes prime minister, has vowed to hold another free vote in parliament to define the term so that it more accurately reflects its traditional definition.
Harper’s proposal is a clear challenge to the equality rights outlined in Section 7 of the Charter. If marriage is a cultural institution without any religious affiliation, which is how it has largely come to be understood, then the issue of gay marriage should be a non-issue. But if it is a religious institution, as some opponents to gay marriage argue, then what business does the state have in sanctioning it?
Harper may go about maintaining the traditional definition of marriage by attempting to legislate two definitions. Under this proposal the term “marriage” would be reserved for heterosexual couples. Homosexual couples would be permitted to enter into a civil union. Such unions would ensure that same-sex couples receive all the same legal benefits as would “traditional” couples.
This policy is illustrative of Harper’s need to appeal to soft supporters of both sides of the debate. Win the center, maintain popularity, shed the “scary” image, and still appear to stand up for religious causes. If Harper can pull it off then the Conservatives may be more than simply a trust to keep parliament warm until the public is ready to put the Liberals back in office.
Musings of the future of the Conservative party aside, two definitions of union still smack of segregation, even if all we are talking about is how to define one term. It is comparable to, though not necessarily equal to, the not-so-old practice in parts of the United States of segregated bathrooms for whites and blacks. Black people were granted the right to use public washrooms as long as they didn’t impede on the space of white people.
In the same vein, if two definitions of marriage are legislated then gay couples will have the right to unite under the law so long as they don’t impede on the space of heterosexual couples. But, the state sanctions marriage not for religious reasons but for legal ones. For this purpose, it makes little sense to call it by two different names.
If same-sex couples can not be recognized for religious reasons, should the state also mandate that atheist couples be restricted from marriage? And what definition of religious marriage is being referred to?
If the definition is meant to reflect the Judeo-Christian tradition, then should people of other faiths also be restricted from referring to their union as marriage? Now it is unlikely to go this far, but it is to protect against such abuses that we have a separation between church and state.
If the state wants to restrict a service based on religious reasons then it has no right to offer that service, because it is an infringement on both equality rights and the right to freedom of conscience.
An alternative approach could be to remove the state from the business of marriage all together. If marriage is truly a religious institution, the overarching secular arm of the state should not be sanctioning it.
Under this proposal, the state would sanction civil unions for all couples without discrimination. If a couple, gay or straight, wishes to undergo a more traditional ceremony and thereafter call it marriage, that is their prerogative.
Social conservatives in Harper’s party probably wouldn’t support such a proposal. Their view is that the levers of the state should be used to enforce a particular form of morality.
However, if we are truly a nation that purports equality under the law and freedom of conscience, then pulling the state out of the sanctioning of marriage is a logical progression. Unfortunately, anachronistic visions of morality have the potential to supercede the respect and dignity that all people deserve.
Carson Jerema is a fourth-year political studies student and the Manitoban’s Comment Editor.
