This guest post comes from Kathryn Oviatt, an Alberta-based attorney.
June 20, 2015 marked the ten-year anniversary of marriage equality in Canada. Six days later, the U.S. Supreme Court made its historic ruling in Obergefell v. Hodges, giving LGBT Americans the same marriage equality rights as their northern neighbours. Some critics of the SCOTUS decision point to Canada as a warning sign of the kinds of limits on religious freedom and freedom of expression to come.
As a Canadian, a lawyer, an LGBT ally, and a Mormon, I confirm that both religious freedom and freedom of expression are alive and well in Canada. Freedom of religion and freedom of expression are constitutional guarantees, which continue to be protected. If Canada is any lesson for Americans, ten years from now you can expect that the family will still be the center of society, political discussion will still be around, churches will not be forced to either change their doctrine or to perform gay marriages and life will continue on much as it is now. You can also expect that even a decade in, the tension between religious advocates, which teach that homosexuality is a sin, and LGBT advocates will continue.
In addition to marriage equality, all Canadian provinces have anti-discrimination legislation, which prohibits hate speech and discrimination on the basis of race, religion, gender, disability, place of origin, family status and sexual orientation. Accordingly, Canadian law accepts that sexual orientation is an immutable characteristic akin to skin colour or gender. This means that if it is not OK to refuse to bake a cake for a black couple because they are black, it is also not OK to refuse to bake a cake for gay couple because they are gay. If it is not OK to refuse to hire a woman because she is a woman, it is also not OK to refuse to hire a transgender woman because she is transgender.
Such a situation is not an infringement on religious freedom. Freedom of religion means being able to worship according to your beliefs. It means the freedom to be a member of a particular church or sect, the freedom to attend church in peace, and the freedom to worship in your temple. It also means the freedom to teach and share your belief system, and to hold whatever core beliefs your religion teaches as doctrine. In Canada, these freedoms are wholly intact. Religions may continue to teach doctrines that contravene our anti-discrimination legislation, including doctrines relating to sexual orientation and gender.
Similarly, freedom of expression is alive and well in Canada. The only limit on free speech is in relation to hate speech. In Alberta, hate speech is defined in part as a publication that is “likely to expose a person or class of persons to hatred or contempt.” Most other provinces have a similar definition. It is a high threshold to come within the meaning of hate speech-- only the truly hateful, toxic, vilifying statements that are prohibited. Civil discussions of politically important issues do not qualify as hate speech.
The Supreme Court of Canada discussed hate speech against LGBT persons in the Whatcott decision. In that case, William Whatcott was a zealous religious advocate against LGBT rights and handed out thousands of flyers vilifying homosexuals. The statements were extreme-- they compared homosexuals to pedophiles, called them inferior and untrustworthy, and called for discrimination against them. The Supreme Court of Canada ultimately found against Whatcott. It upheld the human rights tribunal’s decision prohibiting Mr. Whatcott from distributing further flyers of this nature and ordering him to compensate to the complainants. Critics have pointed to this decision as evidence of restrictions on religious freedoms in Canada. However, it is clear from the decision of the Supreme Court that the problem with Mr. Whatcott’s statements was the hatefulness of the message, and not merely ideas arguing against LGBT rights. The Supreme Court’s analysis is important (emphasis added):
[T]he legislative term “hatred” or “hatred or contempt” is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.
… The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think “correctly”.
Canadians are free to argue against same sex marriage, abortion, immigration, gender equality or any other issue that they care about. They may even do so in strong terms. The only limit on this speech is that we are not permitted to incite hatred. The prohibition against hate speech protects us all. No one should be subject to vilification or dehumanization in the name of religion or free speech.
There are no thought or speech police in Canada to monitor the content of our discussions. Complaints come before human rights tribunals in a similar way that litigation goes to the court. An affected individual files a complaint, which is then investigated and ultimately a hearing is held where both sides present their case. If either party is unhappy with the outcome, they can apply to the courts to review the tribunal’s decision. It can be a long process for the parties involved and is far from a perfect system, but it is in no way the apocalyptic censorship and surveillance system described by some. The truth is that it is a rather civil, boring process. In short, it is very Canadian.
There are ongoing and future battles to be had over the balance between freedom of religion and LGBT rights in Canada. We are far from societal resolution on these issues, but so far we are finding a balance that I am proud of, both as a Canadian and as a lawyer. I cannot say for certain that we will always find the right balance, but to my American friends and family concerned about the future, I can say affirmatively that, a decade into same sex marriage, the moral fabric of Canada is as strong as ever, families continue to be at the heart of Canadian society, and that I am proud to live in a country where there is marriage equality for my LGBT brothers and sisters.
[Correction: an earlier version of this article used the verb "transgendered" to refer to a transgender person. We regret the error.]