Religion vs. Sexual Orientation:
Religion vs. Sexual Orientation:
A Clash of Human Rights?
(Bertha Wilson Lecture, 2002)
University of Toronto - Bennett Lecture Hall
February 12, 2002
Dr. Robert Wintemute is a leading scholar in the area of sexual orientation discrimination. He is a professor at the School of Law, King's College, University of London. Dr. Wintemute was invited to be the Bertha Wilson Distinguished Visiting Professor for this academic year at the University of Toronto's Faculty of Law. His visit included the delivery of the Bertha Wilson Lecture for 2002.
Introduction
Dr. Wintemute began his lecture by drawing parallels between his topic and the life of the Bertha Wilson, Canada's first woman to sit on the Supreme Court. "She would have been pulled between the right to freedom of religion, and the right to be free from sexual orientation discrimination," Wintemute said, "by her commitment to equality and her profound religious reverence for the Church of Scotland and the United Church of Canada. This kind of conflict, and the ways to resolve it are the subject of my lecture."
Religious Hostility Towards Lesbian, Gay, Bisexual, and Transsexual (LGBT) Individuals and Same-Sex Couples
"How should the law deal with the problem of continuing hostility on the part of many religious individuals and institutions towards LGBT individuals and same sex couples?" Wintemute asked.
"If you are a LGBT person anywhere in the world, it is hard to have warm feelings towards most major religious institutions. What you and your partner consider lovemaking, they will often call an abomination. When you seek the same rights, and opportunities, and benefits as heterosexual persons, many religious individuals will fight you every step of the way."
| Wintemute pointed out that religious hostility against LGBTs is not hard to find. The Vatican has a web site (see the side bar on this page) that collects the doctrines of the "largest, most influential Christian denomination." But Christians are not the only faith group hostile towards gays. Muslims, orthodox jews, and evangelical protestants joined the Catholic Church in oppossing same-sex marriage in the marriage cases currently underway in Canada. | "When civil legislation is introduced to protect behavior to which no one has any conceivable right, neither the Church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase." Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons |
"There are religious individuals and institutions in our world, who would rather see LGBT persons dead, in jail, or at least completely deprived of any legal protection against discrimination."
How to Respond to the Anti-LGBT Religious Hostility?
"Because religious institutions often present their doctrines as eternal, unquestionable truths, rather than as products of the social conditions prevalent when the doctrines were adopted, it can take many decades, if not centuries, to persuade these institutions to change their views," Wintemute said.
Instead, change must happen in the world of politics and governance.
In the face of religious hostility and active religious opposition, getting the political and legal system to protect the rights of LGBTs seems to be an impossible task. There are several ways, Wintemute said, for LGBTs to respond to "the apparently monolithic anti-LGBT consensus of the world's great religions":
| 1. Point out that consensus against LGBTs does not exist. Christian churches, for example, are increasingly becoming "welcoming" and inclusive. 2. "Religious doctrines must be deemed absolutely irrelevant in determining the content of secular laws and human rights. A separation between law and religion is a defining principle of every liberal democracy. Without such a principle, there can be no freedom of conscience and religion, for the beliefs of the religious majority will be imposed on how they execute the law." The Catholic Bishops may insist that their churches remain hostile towards LGBTs, but Canadians will not accept a church-state, and the Bishops will not withstand democracy. | "Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity [Gen 191-29; Rom 124-27; 1 Cor 6:10; 1 Tim 1:10.], tradition has always declared that homosexual acts are intrinsically disordered. They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved." Catechism of the Catholic Church - Chastity and Homosexuality (No. 2357) |
"The religious majority may seek to have their beliefs reflected in secular laws but they must do so through reasoned secular arguments. Religious text or doctrines must be excluded from legislative and judicial debates, because unlike secular law, they rely on inaccessible, extra-democratic source of authority, which cannot be challenged or overturned by reasoned arguments."
The European Court of Human Rights affirmed this principle in 2001 in the case of Refah Partisi (Prosperity Party) and Others v. Turkey.
Assuming that the law must not give effect to religious hostility to LGBT persons, the next step is to define the scope of this principle.
Religious Hostility Against LGBTs Has No Place in the Public Sphere
"A religious institution that advocates racial discrimination is likely to be viewed as highly eccentric and therefore entitled to minimal accommodation for its views," Wintemute said. "A religious institution that advocates sexual orientation discrimination has the support of many of the world's great religions."
To what extent, however, should the public world subsidize religious hostility directed towards its citizens?
"Does public funding for Roman Catholic or other anti-LGBT religious schools constitute financial support for sexual orientation discrimination analogous to financial support for racial discrimination and therefore violates section 15 of the Charter?"
| One could build a compelling case against the Catholic Church in Canada, however Wintemute said "it is highly unlikely that the majority of the Supreme Court would currently be willing to find a violation of section 15 [of the Canadian Charter], yet they would be tempted to do so if the religious school taught the superiority of the white race, rather than the superiority of different sex sexual activity and partnerships." As we saw during the Ontario marriage hearings, religious groups are fighting to maintain their influence over the public sphere, including the promotion of an anti-LGBT bias in law and public policy. |  "Does public funding for Roman Catholic or other anti-LGBT religious schools constitute financial support for sexual orientation discrimination, analogous to financial support for racial discrimination?" |
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"Somehow," Wintemute said, "the law ceasing to give effect to their belief that their different sex partnerships are morally superior to same sex partnerships, would marginalize them and turn them into victims or even exclude them from the legal institution of marriage."
Rosalyn Levine, the lawyer representing The Attorney General of Canada during our Ontario hearing, enthusiastically demonstrated how the government is willing to parrot the Papal doctrine. "You don't have marriage anymore," she espouses, if same-sex partners share in this important family event. It is the same fear mongering that has been used by bigots who fought to maintain laws against inter-racial marriages.
"I am sorry that they feel this way," Wintemute said, referring to Levine's clients and collaborators, "but this is what happens in pluralist liberal democracies that require everyone to accept the differences of their neighbors. Religious individuals will remain free to apply their own religious beliefs to their own lives, and they will have to accept that the law does not require others to comply with their beliefs."
Registered Domestic Partnerships
One of the solutions proposed by religious groups and the Attorney General of Canada, as voiced by Rosalyn Levine, is to segregate marriage for heterosexuals only.
"They want the institution [marriage], just the word, but not the goals," the Attorney General's lawyer claimed, showing either contempt or ignorance. "They want the word."
| More recently, the Law Commission of Canada agreed that marriage has evolved over time, and that it should continue to do so to include same-sex couples.
Wintemute has a practical response to those who advocate segregation in our marriage laws. | "'De facto unions' between homosexuals are a deplorable distortion of what should be a communion of love and life between a man and a woman in a reciprocal gift open to life. However, the presumption to make these unions equivalent to "legal marriage", as some recent initiatives attempt to do, is even more serious. Furthermore, the attempts to legalize the adoption of children by homosexual couples adds an element of great danger." Family, Marriage and "De Facto" Unions, Pontifical Council For the Family |
"Surely that is not fair," said Justice Blair, one of three justices hearing the case.
"I ask you, whether women, who achieve the highest academic rank in university, should be denied the title Professor, in order to respect the feelings of those who believe that only men should be professors and [women] instead [should] be granted the title Registered Teacher, while of course enjoying exactly the same pay, benefits and duties of a professor?"
Private Religious Views - Allow For Discrimination
"Should religious institutions be prohibited from discriminating on the basis of sex, sexual orientation or gender identify in deciding who can be a priest, a rabbi, or an imam, where an individual may pray, or which couples are permitted to contract a religious marriage? I would not go this far," Wintemute advised. "It has to be accepted that the protection of anti-discrimination laws must occasionally be curtailed."
 Dr. Wintemute is "looking forward to the first lesbian Pope." | Although we must stop allowing religious groups and their government mouthpieces to foster hostility towards others in the public, secular world, religious groups are free to form their own doctrines for their churches and private homes. |
"Don't insist on the eradication of religious hostility in the religious private sphere," Wintemute advises, "Otherwise it will enter the public sphere."
How can a LGBTs in faith groups or religious families escape spiritual, emotional and physical abuse inspired by religious doctrines?
Wintemute outlined the ways in which LGBTs cope:
a) Enter a different sex marriage to obtain the approval of their religious community.
b) Remain celibate to comply with the religious community's doctrines while not living a lie.
c) Act on their sexual orientation or gender identity and risk expulsion from their religious community.
d) Form your own spiritual community like the Metropolitan Community Church
e) Abandon organized religion.
f) Stay in the organized religious community and fight for change.
Conclusion
"Compared with the rapid movement towards equality for LGBT individuals and same sex couples in Canada, progress world-wide is slow. Of the 180 member states in the United Nations and Switzerland, only 20 countries have adopted some form of legal recognition of same sex partnerships. In many countries the basic rights of LGBT individuals to life, freedom from torture, and arbitrary arrest, and expression are the priorities."
Eventually, Wintemute believes, fervent opponents, like the Vatican, will apologize to LGBT communities "because of courageous individuals, working from within to change religious doctrines."
Thereafter, Wintemute said, lightening the oppressive mood, he's "looking forward to the first lesbian Pope."
Kevin Bourassa
Toronto - February 13, 2002