Submission to the House of Commons Standing Committee on Human Rights and the Status of Disabled Persons by the Canadian Conference of Catholic Bishops

Wednesday, May 01 1996
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The Canadian Conference of Catholic Bishops (CCCB) welcomes the opportunity to take part in the discussions around a proposed amendment to the Canadian Human Rights Act that has both individual and social ramifications.

The CCCB was founded more than fifty years ago and is the national association of the Catholic bishops in Canada. The bishops of the seventy-five Catholic dioceses are charged with the pastoral care of approximately 12.5 million Catholics across the country. In addition, the Conference has been active in bringing a moral, philosophical and spiritual perspective to a number of critical public policy issues.

Shared Concerns

As pastors, we wish to participate in the public debate in a constructive manner and to search for solutions that respect, as much as possible, the legitimate and deeply held concerns of Canadians on all sides of this controversial and complex question.

We share with the Government the desire to protect from unjust or arbitrary discrimination individuals who have been marginalized in our society. We also share with many other Canadians the serious concern that this amendment could undermine the institution of marriage. We therefore can support Bill C-33 in so far as it deters unjust discrimination, and provided that it adds the components set out in this text under the section, The Common Good.

These concerns and the principles of Church teaching upon which they are based were outlined in our letter to the Prime Minister on April 16, 1996, and are more fully developed in what follows. We are disappointed that the Government did so little in this bill to respond to the concerns that are held not only by us but by many people of goodwill across the country.

The Principles of Church Teaching

1. The dignity of the human person

Respect for the dignity of every human being is central to Catholic teaching; this is because we believe that everyone, without exception, is unique and created in the image and likeness of God.

2. Homosexual behaviour

It is well known that the Catholic Church has always taught that sexual relations must occur only within a marriage between a man and a woman who are open to procreation. For this reason, the Church considers homosexual behaviour to be morally unacceptable, while at the same time accepting the homosexual person. Accordingly, the Church makes a distinction, which is not often made in the public debate, between the orientation (inclination) and behaviour.

3. Discrimination on the basis of sexual orientation

The Catholic Church supports fundamental human rights and recognizes that everyone is entitled to be treated with dignity and respect. The Church does not include among human rights a "right" to behaviour that it considers to be morally wrong. However, the Church does have a duty to oppose discrimination in all circumstances where a person's sexual orientation or activity cannot reasonably be regarded as relevant. 1

Another way of stating this position is that the Church is against arbitrary or unjust discrimination. While some people believe that the concept of unjust discrimination is a contradiction, the Canadian Charter of Rights and Freedoms also acknowledges that discrimination can be justified in some circumstances. Section 1 of the Charter states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It is in this context that the Church believes that it is quite appropriate to make distinctions between heterosexual and homosexual couples because of the unique and important contribution that heterosexual couples make to the future of society. In this respect, the Church would agree with the plurality of judges in the Supreme Court of Canada in the Egan2 case.

Four judges in that case led by Mr. Justice La Forest held that restricting the definition of spouse under the Old Age Security Act to people of the opposite sex was not discrimination because:

The distinction was relevant to the objectives of the law, namely: to support married and common law couples because they have the unique capacity to procreate, and most children are born of these relationships and nurtured in these family units. Moreover, they are the only units that spend resources on a "routine and sustained" basis to care for children.

4. Marriage is a social institution and a sacrament

Marriage is both a basic institution of society and a sacrament in the Catholic Church. It plays a pivotal social role in the stability of the family and is a sign of the participation of men and women in creation. As Mr. Justice La Forest said in the Egan case in the Supreme Court of Canada:

There was nothing arbitrary about the distinction made by the Act because none of the other "couples" or pairings excluded (siblings, friends, relations, parent/adult child) are capable of meeting the social objectives of the law. Further, the fact that homosexual relationships have a sexual component is irrelevant to the objective of the law.

5. Violence against persons who are homosexuals

The Church condemns the misuse of its teaching to justify violence or the abuse of persons who are homosexuals.

Concerns About Bill C- 33

In our consideration of Bill C-33, we have kept before us the criteria that Cardinal Basil Hume recently indicated should be taken into account in assessing legislative proposals of this nature:

Are there reasonable grounds for judging that the institution of marriage and the family could, and would, be undermined by a change in the law?

Would society's rejection of a proposed change in the law be more harmful to the common good than the acceptance of such a change?

Does a person's sexual orientation or activity constitute, in specific circumstances, a sufficient and relevant reason for treating that person in any way differently from other citizens?

1. The institution of marriage

We are concerned that the proposed amendment to the Canadian Human Rights Act will facilitate claims for same sex benefits which may result in the redefinition of the historical understandings of marital status, family status, marriage and spouse.

The proposed amendment involves more than individual rights because the basis for most benefits and other rights for "couples" is marital or spousal status. In order to receive benefits, same sex couples challenge the definitions that restrict the meaning of spouse to the opposite sex and the prohibition of discrimination on the grounds of sexual orientation enables them to do so.

While proponents of the amendment may be right in asserting that its intention is simply to prevent discrimination, experience has shown that the effect may be to create social recognition of homosexual relationships or to change definitions of family, spouse or marriage. As a result of a similar amendment to the Ontario Human Rights Code ten years ago, same sex couples were awarded benefits as spouses because the definition of "marital status" in the Code that restricted the meaning of common law spouse to a person of the opposite sex was held to be discriminatory.

In the Leshner3 case, a Board of Inquiry found an inherent conflict between the section of the Code that prohibited discrimination on the grounds of sexual orientation and the definition of marital status that excluded homosexual relationships. The remedy was to "read down" the legislation so that the words "opposite sex" were deleted from the definition. While some might argue that this would not happen today in light of the Egan case which upheld an opposite sex definition of spouse, the majority in that case was slim and there is no provision in the Canadian Human Rights Act similar to Section 1 in the Charter.

At the federal level, the Supreme Court of Canada in the Mossop4 case held that the term "family status" under the Canadian Human Rights Act was not broad enough to include same sex couples but might have been had sexual orientation been a prohibited ground of discrimination in the Act.

The outgoing Chair of the Canadian Human Rights Commission, Mr. Max Yalden said, in testimony before the Human Rights Committee of the House of Commons5 two years ago, referring to Bill C- 108, a bill on this topic that was introduced by the Honourable Kim Campbell when she was Minister of Justice:

... we completely agreed that the inclusion of (sexual orientation) should be part of the amendments. Unfortunately, at the same time, a definition of the term "spouse" was added that seemed to restrict this status to heterosexual relationships. It seemed as though the government was taking back with its left hand what it had given with its right.

And further on in his testimony, Mr. Yalden said:

We are strongly in favour of an amendment (to the Canadian Human Rights Act) that would prohibit any discrimination based on sexual orientation. That means that if benefits are paid to a heterosexual couple living common law, the same benefits should be paid to a couple living in the same situation, except that they are two men or two women.

We are concerned that a major redefinition of spouse and marital status has been going on indirectly through the vehicle of otherwise worthy initiatives aimed at protecting individuals who have historically suffered unjust discrimination. If there is to be such a massive social reconfiguration and change in public policy, it should only happen after widespread and meaningful consultation.

The historical understandings of marriage, marital status and spouse are of immense importance to many Canadians. It is not enough to shrug off their concerns as unfounded because experience has shown that there is a rational basis for them. Those who opposed the changes to the Ontario law ten years ago were dismissed as alarmist, but their predictions came to pass.

2. The common good

In order to serve the common good which is much more than the sum of individual goods, the following components should be added to the bill:

a) Definitions of "marital status" and "family status" that are limited to heterosexual couples because of their irreplaceable role in the procreation and nurturing of children upon which the future of our society depends.

The preamble to Bill C-33 purports to recognize this important role by stating that:

...the Government recognizes and affirms the importance of family as the foundation of Canadian society and nothing in this Act alters its fundamental role in society.

This preamble, while welcome, does not go far enough because it overlooks what Mr. Justice La Forest said, writing on behalf of three other judges in the Egan case:

Because of its importance, legal marriage may properly be viewed as fundamental to the stability and well-being of the family....

b) A saving provision similar to Section 1 of the Charter of Rights and Freedoms so that the history and social objectives of legislation may be taken into account in determining whether certain policy distinctions are unjust discrimination.

c) The teaching and hiring practices of religious institutions be protected (Bill 108 attempted to do this).

The common good would also be better served if, in advance of any amendments, there were an in- depth study of the origin and purpose of benefits. If it is appropriate for other categories of relationships to receive benefits, then there has to be another more direct way to do so than by redefining or expanding terms such as marital status that have a long history in our society and culture. As we stated in our letter to the Prime Minister, it would be important that this study examine whether benefits can be extended to other categories (siblings, parent/adult child, same sex couples, friends) in a manner that does not involve social recognition of same sex couples or prevent special support to married couples.

Conclusion

We think that the issues around this matter are significant and warrant full public hearings. We are confident that they can be conducted in a thoughtful, constructive and respectful manner.

Our desire to support the institution of marriage should not be interpreted as unjust discrimination against homosexual persons or used as a pretext to attack them. While we cannot accept homosexual acts, we do accept the right of homosexual persons to be treated with dignity and respect. Moreover, we are keenly aware of how difficult some find it to hear and live the Church's teaching on this deeply personal matter.

Most Reverend Francis J. Spence
Archbishop of Kingston
President
Canadian Conference of Catholic Bishops


1. Cardinal Basil Hume, Archbishop of Westminster, "Note on Church Teaching Concerning Homosexual People", Origins, April 27, 1995; Vol. 24, No. 45.
2. Egan v. Canada, [1995] S.C.R. 513 (S.C.C.)
3. Leshner v. Ministry of the Attorney General (1992), 16 CHRR D/184.
4.Mossop v. Canada (Secretary of State), [1993] 1 S.C.R. 554.
5. Max Yalden, Standing Committee on Human Rights and the Status of Disabled Persons, House of Commons, March 15, 1994.
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