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 Title

Vriend: The Negative Policy Consequences

 Synopsis

The Supreme Court's decision in the Vriend case is not just a small victory for a small minority. The decision is a milestone in a steadily advancing agenda that will affect all Canadians.

 Author

Ted Morton

 Author Notes

Professor of political science, University of Calgary, Executive Director of the Alberta Civil Society Association. Mr. Morton is also one of Alberta's two Senators-Elect, elected by Albertans to represent Alberta in the Senate but so far ignored by Liberal prime minister Jean Chretien when making Senate appointments. Co-author (with Rainer Knopf) of The Charter Revolution and The Court Party (2000, Broadview Press)

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 Essay - 3/11/1998

"Gays will push for spousal benefits and other kinds of equal treatment to that received by heterosexuals following a favourable decision [in Vriend] . . . 'Simply getting included in human rights legislation is not the end of the struggle. It is the beginning of the struggle. What the gay, lesbian and bisexual community is looking for is equality - social and legal equality - that we get the same benefits as other people.'" Calgary gay rights activist Stephen Locke, as reported in the Calgary Herald, April 1, 1998. [1]

The policy consequences of Vriend go far beyond Delwin Vriend losing his job at Kings College. The addition of sexual orientation to the IRPA - is the thin edge of the wedge of a much more ambitious and radical agenda. The gay rights movement hopes to use Vriend to create a legal foothold with which to force their agenda in a variety of related policy fields. These policy changes serve in turn as a means to a still more radical end - the extermination of "heterosexism" and its source, the heterosexual family. The first part of this section reviews the practical policy changes that will follow, sooner rather than later, if the judges are allowed to add sexual orientation to the Alberta Human Rights Act. Part 2 summarizes the larger strategy and agenda behind Vriend and these intermediate policy changes.

Practical policy consequences of the Vriend ruling

The Individual Rights Protection Act (IRPA) prohibits all private sector actors - individuals as well as companies - from "discriminating" on the enumerated grounds in the areas of employment, services, housing and accommodations. Currently, the IRPA prohibits discrimination on grounds such as race, religion, sex, ethnicity and so on. Under the Vriend ruling, the Supreme Court would order the Alberta Human Rights Commission and all judges in Alberta to interpret and enforce the IRPA as though it included sexual orientation. Based on experiences in other Canadian provinces and US states that provide similar forms of legal protection based on "sexual orientation," Albertans can expect to see policy changes in the following areas.

Public education

Curriculum: Pro-gay materials will have to be introduced into the curriculum, particularly into any courses dealing with human sexuality. These "gay friendly" materials present homosexuality as a "natural choice" equivalent to heterosexuality. Recently, the Surrey, B.C. school board removed similar materials from a school library. As a result of this action, the school board has been sued and is being threatened with dissolution. This scenario will be replayed many times in Alberta if Vriend is allowed to dictate Alberta policy.

Hiring: First, it should be noted that there is not a single instance to date of an Alberta public school teacher being fired for homosexuality. Second, toleration and protection against firing is only the first stage of the gay rights movement agenda. Once this policy is firmly in place, the next stage is mandatory "affirmative action" hiring of homosexuals so that students will be exposed to "positive role models" of homosexuals. This has become standard procedure in the case of women and racial minorities, where of course it makes sense. After Vriend, the gay rights movement will claim the "right to equal treatment." A task force at York University recently recommended such a policy.

Counseling: Counselors and eventually all staff will be first encouraged, then required, to undergo "gay positive training" so that they can relate positively with gay students. Teachers who do not agree to such training, or who do not manifest "gay positive" attitudes will be ostracized and eventually forced out of the system.

Private education

There will be strong pressures to defund and isolate any private - and especially religious-based - educational institutions that do not embrace "gay positive" policies. The claim will be made that "equality rights" are more important than freedom of religion and freedom of association. Indeed, this argument has already been made before the courts in Canada. In Australia the "Gay and Lesbian Teachers and Students Association" is demanding an end to all funding of Catholic schools for this same reason. In British Columbia, the BC Teachers Federation has denied certification to the graduates of Western Trinity College, a Christian college similar to Kings College, for the same reasons.

Family law

Even before the Vriend legal victory, gay rights movement has mounted an all-out offensive to amend marriage and family law to recognize and thus legitimate homosexual marriages. NDP governments in both Ontario and British Columbia have already introduced legislation to this effect. In Ontario, the NDP caucus revolted and helped MLAs from other parties defeat this motion. The Ontario Government then went to court and asked the courts to do what their own legislature refused to do. As usual, the courts obliged. In the case known as M and H, the Ontario Court of Appeal ruled the Ontario Family Act unconstitutional for defining spouse as a member of the opposite sex. The appeal of this ruling was heard last week before the Supreme Court of Canada.

It should be noted that the gay rights movement objective is not just to obtain public affirmation of "homosexual marriage," but all forms of "families" - including "multipartner unions" and polygamy. Pro-gay advocates now routinely use the acronym "GLBt" to denote the full range of behaviour they want protected - gay, lesbian, bisexual, and transsexual.

Adoption law

Once family law is changed to include homosexual and "multipartner unions," so must foster parenting and adoption law. If allowed to stand, the Vriend ruling will provide "Miss T" - the lesbian foster parent in Edmonton - with additional legal arguments to act as a "foster parent." Once the law of foster parenting is changed, adoption will be next. Once this door has been opened, homosexuals will demand equal rights with lesbians to foster child and to adopt. Needless to say, what is in the children's best interest is routinely ignored in this battle over "rights."

Pension and benefit programs

All public and private pension and benefit programs that provide "spousal benefits" will be challenged under the Vriend (and probably, the M v. H) precedent. Extending such benefits to homosexual partners contradicts the original purpose of such programs - to provide financial support for families where one parent, almost always the mother, takes primary responsibility for raising the children. Whatever else might be said in favour of supporting homosexual marriages, support for child-rearing is not one! Moreover, it would be socially destructive to undermine such programs just as recent studies have affirmed the long-term benefits of in-home, parental care for young children. Extending spousal benefit and pension programs to homosexual partners will drain millions of dollars away from the intended beneficiaries of such programs.

Social and community life in general

"Gay Pride Weeks" will be obligatory for any municipality that celebrates other groups. The mayors of Hamilton and London have both been fined for refusing to proclaim "Gay Pride Weeks" in their cities. The mayor of Fredericton currently faces similar "charges" from the New Brunswick Human Rights Commission.

Employment law

This case is not about Delwin Vriend getting back his job. Kings College, like all religious institutions, is exempt from anti-discrimination laws. This exemption is itself provided by the Charter's protection of religious freedom. Outside of religious institutions, any lawyer will tell you that a person fired for homosexuality can already sue and win. Dismissal for reasons unrelated to job performance are already illegal under existing wrongful dismissal law. Once again, the objective of the Vriend case is not compensation for Delwin Vriend. Rather, the objective is twofold. The first is to force the government to put its resources, prestige and coercion behind the symbolic affirmation of homosexuality as a "normal" form of sexual behaviour. The second objective is to create a new legal foothold from which to mount further legal challenges promoting the gay rights movement agenda. Once sexual orientation is part of the IRPA, these challenges can be conducted in the courts and human rights commissions, beyond the reach of democratic accountability.

To conclude this section, compliance with the Vriend ruling will have numerous and far-reaching policy consequences. Nor should there be any doubt that Vriend is just the first installment. The ultimate objectives of this "equal treatment" is the subject of the next section.

The Gay Agenda

Just as the organized feminist movement has long since moved beyond the liberal principle of "equal rights" for women, so the gay rights movement has a much more ambitious agenda than just "equal treatment" of individuals such as Delwin Vriend. As stated by Didi Herman, an influential lesbian law professor and feminist activist, "law reform is a part of an ideological battle, and fighting over the meanings of marriage and family constitutes resistance to heterosexual hegemony." [2]

The gay rights movement agenda is not the paranoid creation of its critics. Rather, it is routinely advocated by its partisans and practitioners in the leading law reviews of Canada - the Osgoode Hall Law Journal, the University of Toronto Law Journal and Queens Law Journal, to name just a few of those that appear below. A recent study of twenty-two, randomly selected articles on gay rights in Canadian law reviews found that the "experts" were uniformly critical of legal support for the traditional family. One gay rights advocate describes the traditional family as the "ideological centrepiece of heterosexual supremacy." [3] This view is echoed by lesbian feminist authors: "heterosexuality is central to women's oppression." [4] [the heterosexual family is] "an oppressive and exclusionary institution." [5]

The author of this study summarized the dominant themes of these twenty-two articles as follows: "Family is presented as an invention of dominant societal interests that seek to regulate (i.e. repress) sexuality. Family's exclusive links to heterosexuality, it is argued, alternatively marginalize and seek to normalize non-conforming sexualities. The solution is to radically transform family, either by including non-conforming sexualities within family or by abandoning the legal category of family altogether, along with the distinction between family and non-family." [6]

Thus contrary to the public rhetoric of "homophobia," gay rights movement's real target is the traditional family - "the ideological centrepiece of heterosexual supremacy." Since a frontal assault on the traditional family would arouse too much opposition, gay rights movement has adopted a "Trojan horse" strategy of legalizing - and thus legitimizing - homosexual or "same-sex" marriage. While lawyers representing gay rights movement usually use the argument of biological determinism to justify "equal treatment" of gay couples, this is tactical. As noted in the preceding section, most gay activists reject genetic determinism, since it would condemn gays to permanent minority status.

The view that the heterosexual family is based on convention, not nature, is central to the gay rights movement agenda. [7] As gay activist law professor Bruce Ryder has written, since "heterosexual privilege is socially and legally constructed, it can be socially and legally dismantled." [8] The key to this dismantling is the legalization homosexual marriage. In the words of Peter Rusk, "sanctioning of same-sex relationships by the state would imply a high degree of social legitimation of these relationships" [9] Jody Freeman concurs: "recognizing marriage between gay men or lesbians would revolutionize its meaning." [10] In sum, by destroying the legal support for heterosexual marriage and the family, gay activists hope to "foster a plurality of sexual and familial arrangements." [11]

What most well-meaning Canadians don't realize is that there is nothing intrinsically benign about this "new plurality of sexual and familial arrangements." We are constantly bombarded by the media with unthreatening, sympathetic stereotypes of homosexuals: Tom Hanks' character in the move "Philadelphia"; Ellen deGeneris in "Ellen," and so on. While gay activists know the strategic value of these "clean" stereotypes, privately these "sanitized" versions of gay behaviour are laughed at and even criticized by gay activists, who celebrate the culture of bath-house promiscuity. In his recent book, HOMOS, Leo Bersani denounces the "assimilationist" version of gayness. "de-gaying gayness can only can only fortify homophobic oppression." [12] Bersani writes: "gay life styles cannot be dissociated from an authentically new organization of the body's pleasures," a prelude to his endorsement of sadomasochism as a form of ultimate sexual liberation. (He apparently is not bothered by his own view that "the master-slave pairing is akin to Nazism.") [13]

While not all homosexuals subscribe to this ideology, it does represent the cutting-edge ideology of gay rights movement activists and leaders. Equal treatment is just a stop on the way to the full sexual liberation. Unfettered sexual choice is what counts. The contents of that choice are irrelevant. That is, there are not good choices or bad choices. Activists strongly reject any attempt to distinguish "good homosexuals" from "bad homosexuals." [14] The only norms or institutions that are bad are those that "compromise sexual choice." [15]

This is the side of the gay world that polite company pretends does not exist. the bath-house culture of hedonism, self-indulgence, sexual promiscuity and violence. [16] Nor should you presume that homosexual sadomasochism is always consensual. When it comes from the mouths of critics, this characterization of gay culture is denounced as a libelous smear. But again, there is no need to rely on the critics. Gay advocates, such as Professor Bersani, supply all the evidence that is required. Or take your children to the next "Gay Pride Parade" in Toronto, where they can see gay men with exposed genitalia whipping one another on the passing "bondage floats." [17]

If you can't make it to Toronto, consider playwright Brad Fraser's recent "gay guide" to Calgary - published (of course) in "Canada's National Newspaper." [18] In addition to directing his readers to the various gay hot-spots, Fraser counsels against "buying drugs on the street" (i.e., buy them from people you know); and reminisces about how by "getting hammered cheap" at Calgary's notorious "happy-hours" he "often picked up straight men this way." There are also teasing references to "romantic dinners . . . followed up with a dirty weekend in cheap hotel rooms." For "anyone planning on staying up all night" (emphasis in original), Fraser recommends Goliath's, "the local bathhouse, home to the lovely Texas Lounge. It's charmless and squalid, but who cares," winks the sly playwright. What Fraser likes about Calgary is its contrasts, the clash of "the gay world and the straight world, the art world and the workaday world, the world of AIDS and the world of ignorance."

Toleration versus Public Affirmation

In a liberal and pluralistic society, citizens must tolerate much that they disapprove. Respect for individual privacy gives each citizen a zone of autonomy within which he or she is deemed to be free from state interference, provided, of course, the behaviour does not harm others. But this is the point of Vriend and the agenda behind it: gay rights movement is no longer about privacy but publicity. It is no longer about toleration but affirmation: the public affirmation - and thus legitimization - of homosexuality as just another "choice."

While liberal political principles require that we tolerate this kind of lifestyle, there is no obligation to affirm or celebrate it. There is much that we tolerate but do not encourage: pornography, prostitution, alcohol addiction, gambling (at least until recently!). This is what the current Alberta policy does. The current policy is a policy of state-neutrality on the issue of sexual orientation. It neither endorses nor stigmatizes sexual orientation. The current policy respects the freedom of association of both groups. Government leaves homosexual alone. And it also respects the freedom of choice and association of those of us who think homosexuality is unnatural and unhealthy. It strikes a balance - a balance that is supported by an overwhelming number of Albertans.

Conclusion

Section 33 is as integral and as legitimate an element of the Charter of Rights as judicial review. Indeed, it completes the new constitutional architecture of checks and balances. When governments make a constitutional mistake, judges can use judicial review to reverse it. When the judges make a constitutional mistake, governments can use section 33 to reverse it. Like the Court's endorsement of voting rights for convicted prisoners the Vriend decision is both bad law and bad policy, precisely the kind of decision for which section 33 was designed.

Voting rights for prisoners. Special protection for homosexuals. Where does this crusade of judicial imperialism end? Who ever told Canadians that the Charter repealed democracy and responsible government? The time has come for a provincial government to stand up to the blatant and ungrounded policy-making of the Supreme Court and declare that this is an issue that can and will be properly dealt with by the elected government of Alberta. The time for section 33 has arrived. Vriend is the case. Alberta is the place.

NOTES

[1]"Costs of gay ruling studied," by Steve Chase. Calgary Herald, April 1, 1998, A6. The second part of this quotation appears in the story filed by Chase, but was edited out of the final print version of the article.

[2] Didi Herman, "Are We Family? Lesbian Rights and Women's Liberation? " Osgoode Hall Law Journal 28:4 (Winter, 1990), 789-815, at 803, as cited in Greener, Deconstructing Family, 51.

[3] Bruce Ryder, "Equality Rights:and Sexual Orientation: Confronting Heterosexual Family Privilege," Canadian Journal of Family Law 9:1 (Fall, 1990), 39-97, at 94, as cited in Greener, Deconstructing Family.

[4] Herman, "Are We Family?" 813, as cited in Greener, Deconstructing Family, 45.

[5] Brenda Cossman, "Family Inside-Out," University of Toronto Law Journal 44 (1994), 1-39, as cited in Greener, Deconstructing Family, 47.

[6] David Greener, Deconstructing Family, M.A. thesis completed at the Univesity of Calgary, Department of Political Science, 1997, iii

[7] See Greener, Deconstructing Family, p.35, fn.2 for examples.

[8] Ryder, "Equality Rights," 44, as cited in Greener, Deconstructing Family, 46.

[9] Peter Rusk, "Same-Sex Spousal Benefits," University of Toronto Faculty Law Review 52 (Fall, 1993), 170-205, at 203, as cited in Greener, Deconstructing Family, 61.

[10] Jody Freeman, "Defining Family in Mossop v. DDS: The Challenge of Anti-Essentialism and Interactive Discrimination for Human Rights Legislation," University of Toronto Law Journal, 95, as cited in Greener, Deconstructing Family.

[11] Ryder, "Equality Rights," 94, in Greener, Deconstructing Family, 51.

[12] "Against Assimilation," Book review by Karla Jay. New York Times Book Review, Aug. 20, 1995, 26.

[13] Ibid. The quotation is Jay's description of Bersani's argument.

[14] See Freeman, "Defining Family," 71,in Greener, Deconstructing Family, 62.

[15] Ryder, "Straight Talk," 302.

[16] See Michael Coren's description of Dennis Cooper's account of the "rape, sexual beating, and murder of a boy whose excrement the author has just eaten. The victim's penis is cut in two and he is decapitated. The narrator masterbates over this. Friends arrive. `They kick the corpse around for a while. This created a pretty hilarious fireworks display of blood.'" As described by Michael Coren, "Conservative at Heart," in William Gairdner, ed. After Liberalism (Stoddart, 1998), 220-221.

[17] See Michael Coren, "Conservative at Heart," 225-227.

[18] Brad Fraser, "My own Private Calgary," Globe and Mail, Feb. 7, 1998, A14, A20


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