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The Terminus of ToleranceThe Terminus of Tolerance

The Terminus of Tolerance

In distorting legal tradition to accommodate same-sex marriage a decade ago, writes Don Hutchinson, Canadian courts may have signed the death certificate for our understanding of true tolerance as well

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The Terminus of Tolerance June 1, 2015  |  By Don Hutchinson
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Canadians have lost contact with the meaning of the words tolerance and diversity. These two concepts have been wrestled with since the founding of our nation nearly 150 years ago. They have shaped who we are. They are central to the existence of the Canada we live in today. And now, these words are being repurposed with different meaning in the media and elsewhere.

In an era of clicking "likes" and sharing memes, Canadians are confronted with the need for critical thinking on the meaning of both terms, and the principles that underlie them, to a constitutionally multicultural nation. It seems too many of us have either discarded or not developed our capacity for critical thinking.

Let's consider the issue of same-sex marriage.

One sunny Friday morning, as I rounded the corner just ahead of the parking lot for the church where I was working, I saw them. Along the boulevard in front of the church were sign after sign stating, "Adam and Eve NOT Adam and Steve." There must have been at least 50 of them. My first thought was, "Who put those there?" My next thought was to park then go to the property manager's office to ask him the very same question.

It was the dawn of Canada's early 21st century debate on marriage, and the high-profile church building had been rented out for a Defend Marriage rally. Some of the Defend Marriage team had arrived early to plant lawn signs. After a quick read of the contract, the signs came down for two reasons. First, sometimes slogans, no matter how catchy, are offensive when you think them through. Second, our church was doing a lot of good in the community, in the region and around the world. Our reputation should not be reduced to stock media photos or signs such as these lining the boulevard.

Why would we think the signs offensive? Two words. Imago Dei. This is the Biblical principle that all people are made in the image of God.

The Judeo-Christian belief in the inherent dignity and worth of all humanity — believing we are all made in the image of God — is the foundation for human rights. It is the basis for the expression of their guarantee in documents such as the Magna Carta, the United States' Bill of Rights, the United Nations' Universal Declaration of Human Rights and Canada's Charter of Rights and Freedoms.

Christianity is a religion with permeable boundaries. Some people are born into Christianity; others convert to Christianity as their religion of choice. Christians, however, are not called to a private faith but compelled by our sacred text, the Bible, to engage with the world outside the Church in a public witness of personal and corporate faith.

Public engagement outside of Church boundaries meant, among other things, establishing Canada's education, parole, children's aid and medical-care systems — all for the public good (i.e., not just for like-minded Christians). Christians continue to be active in these areas, as well as more populist contemporary issues such human trafficking, care for victims of crime and the impoverished, international development and environmental stewardship. All of this outside-the-Church community stuff is motivated by Jesus' command that Christians love the Lord their God and their neighbours as themselves.

Love asks acceptance even when there is not agreement. In Canadian society, this concept is what has until recently been meant by tolerance.

Tolerance is a social experience that Canadians have had to work out together. The Church was not without failure in the quest to live out the concept of treating others as we would desire to be treated.

And demonstrations of intolerance were intended to be addressed by 20th century human rights protocols — codes, acts and tribunals — envisioned as a shield for those who might be subject to discrimination. Permitting those protocols that were meant as a shield to be used as sword, to attack rather than defend, has moved the Canadian understanding of tolerance into a state of flux.

Along with the new human rights protocols, in the latter part of the 20th century Canadian laws were amended to correct the historic injustice that had seen widespread discrimination against Canadians who are gay, which included the criminalization of sodomy until 1969. Early in the 21st century, the societal pendulum on this issue may be swinging beyond simple correction.

What began as a pursuit of protection and accommodation, then equality, for the 1.9 per cent of the population who self-describe as gay, lesbian, bisexual or transsexual (LGBT) has progressed into an expectation that non-heterosexual inclinations and behaviour be recognized, even enforced and taught as alternative orientations or identities to be considered normative alongside the long-considered natural, and still almost universal, female-male relationship. The proposition is that same-sex marriages and same-sex parented families be acknowledged as equivalent to, equal under the law although different from, monogamous one-woman-and-one-man marriages that have the intent of procreation, resulting in families. The latter is often referred to as "traditional marriage" since Canada's definition of marriage was changed in 2005.

Statistics Canada also notes that 0.8 per cent of all Canadian couples are same-sex, with one third of that number married (i.e., 21,000 of the 9.4 million married couples in Canada in 2011 were same-sex).

The assertion often made by same-sex marriage advocates is that same-sex marriage is analogous to bi-racial marriage. However, a better comparison is to religious marriage. Long-term studies suggest that LGBT sexual passions and preferences may be the result of genetics (birth) for some and choice for others, similar to religion. Within the LGBT community, there is a diversity of beliefs about marriage. There are those who support same-sex marriage and those who regard traditional marriage as the legitimate marital option. This is also true in the Church.

The driving effort to redefine tolerance as necessitating approval of same-sex marriage, and diversity as incomplete unless embracing same-sex marriage, has led to its own injustices.

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In several provinces, marriage officiants who indicated that they could not perform same-sex marriages for reasons of conscience or religious belief lost their jobs. Ontario implemented a simple system that required two lists of officiants: one is provided to traditional couples and the other, to same-sex couples. Still, in other provinces and smaller communities, marriage officiants lost their jobs.

A debate rages about other wedding-related services. It has been predominantly Christian small business owners who have been accused of behaving in a discriminatory manner in regard to these services. They have been labelled anti-gay, homophobic. However, when one begins with the wrong assumption, one's odds of arriving at the wrong conclusion are assured. The objection of Christian printers, photographers, bakers and florists (and a pizza parlour owner in Indiana) is not to people who are gay or to serving people who are gay. The objection has consistently been stated as the request, sometimes a demand, to expressively support/endorse same-sex marriage through their inspired creative work, in violation of their religious beliefs.

On which foot should the shoe of accommodation be fitted when there is no question of emergency and there are a multitude of available service providers?

A private Christian university in British Columbia has been reproached by several provincial law societies for its proposal of a school of law that satisfies all the academic requirements of any other Canadian law school. The censure is based solely on the fact that the university holds to a religious perspective that asks its staff and students not to engage in sexual relations except as part of a traditional marriage (i.e. sex outside of marriage is regarded as sinful behaviour in accordance with the university community's understanding of orthodox Biblical Christian identity). Lawyers and academics across the country are divided on this issue. Is this difference in opinion based on political or legal correctness?

Again, let's give the last words on this issue to the deciders of the definition of diversity in our Canadian democracy. In two cases on this point, the Supreme Court of Canada shared the following wisdom, which remains law.

In 2004 in the Reference Re Same-Sex Marriage concerning Canada's then draft legislation to redefine marriage, the Court stated:

"The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the Constitution Act, 1982. In this case the conflict will cease to exist….

"It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter."

This pronouncement built on the Court's 2001 decision in Trinity Western University v. B.C. College of Teachers, in which it stated:

"Indeed, if TWU's Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected."

For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society. Think about it.

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