Religious Freedom Under Siege
Over and over Canadians are being reassured that Bill C-38 will protect religious freedom. But it doesn't and can't.


Lorne Gunter a senior columnist with the Edmonton Journal seems to be the only journalist who "gets it" that Bill C-38 does not protect religious freedom. Not for clergy, not for anyone.

Section 2 of the Proposed Act is therefore … not worth the paper it's printed on.

It is absolutely astonishing that the government keeps stating that Bill C-38 protects religious freedom for clergy. Yes, it is true that there is a clause in the bill that says, "It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs." Well that's a nice statement, but it doesn't actually do anything.

Even if the clause in the bill nailed this to the wall, the Supreme Court of Canada made it perfectly clear that the federal Parliament cannot protect clergy. Only the provincial government has the jurisdiction and authority to do so. In The Marriage Reference the Supreme Court said, "only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily relates to the "solemnization of marriage" under s. 92(12). Section 2 of the Proposed Act is therefore ultra vires Parliament." That phrase "ultra vires" is the legal jargon for "invalid" or "not worth the paper it's printed on." It's right there in paragraph 37, so you can go read it for yourself.

That's two strikes against the supposed protection for religious freedom. But Gunter nails the third in his April 18 column in the National Post. In the column Gunter asks, Are clergy solemnizing weddings the only people deserving of protection?

Let me give you the short list of who is facing some sort of legal action right at this moment in defence of their religious freedom in relation to the redefinition of marriage:

  1. Bishop Henry is facing two human rights complaints in Alberta for comments he made in a pastoral letter on the marriage issue.
  2. Kevin Kisilowsky has made a human rights complaint in Manitoba to be allowed to continue acting as a marriage commissioner, providing civil marriage services, even though he refuses, on the basis of his religious beliefs, to solemnize a same-sex marriage.
  3. Claude Eliot the mayor of Gander, NF, resigned his marriage commission because solemnizing same-sex weddings is contrary to his religious beliefs.
  4. A Knights of Columbus group is facing a human rights complaint in British Columbia for refusing to rent its hall, on property owned by the Archdiocese, to a lesbian couple for their wedding.

Bill C-38 does not protect these people. Just think about the list of people potentially impacted by the redefinition of marriage:

  • Teachers who will be forced to teach about same-sex relationships and validate same-sex marriage to their students without accommodation for their deeply held religious beliefs. See the Chris Kempling case.
  • Students who will not have their religious beliefs respected but will be forced not only to learn about theses issues but also to reproduce what they have learned on tests.
  • Politicians will be required to give congratulatory certificates on significant anniversaries of same-sex couples.
  • Printers will be required to print invitations for same-sex weddings. See the Scott Brockie case.
  • Halls, caterers, florists, musicians, etc. will all be required to provide their services without discrimination to same-sex weddings.

This requires many, many people to validate same-sex weddings. It is not just a private matter between two people, it impacts all of society. Gunter rightly argues that religious freedom is under siege in this country.

The redefinition of marriage sets us up for years of court cases and human rights complaints where religious people will be trying to protect their rights to live what they believe about marriage. As Peter Lauwers, a lawyer acting for the Ontario Conference of Catholic Bishops put it before the Supreme Court of Canada, "This will be death by a thousand cuts."

Janet Epp Buckingham is director of Law and Public Policy and general legal counsel for the Evangelical Fellowship of Canada in Ottawa.