Monday, March 01, 2010

Some forms of bigotry OK, court rules

Frothing homophobic pastor* activist William Whatcott is feeling triumphant, and so are the Usual Suspects in the Speech Warrior™ neck of the woods
. A Saskatchewan appeal court has ruled that a number of hateful pamphlets distributed by this former bisexual burglar turned Xian do not infringe the provisions of the Saskatchewan Human Rights Code. It overturned the findings of a Saskatchewan Human Rights Tribunal and those of a lower court.

The latter, it appears, were foolish enough to imagine that
infecting home mailboxes with invective against homosexuals might possibly "expose or tend to expose to hatred, ridicule, belittle or otherwise affront the dignity" of gays and lesbians--to use the language of section 14(1) of the SHRC.

Here's a small but entirely representative sample of what Pastor Whatcott had to offer:

[T]heir teachers seem more interested in sexual politics of a perverted type, rather than preparing children to do well when they are older

Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children

Break the Silence! Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!

If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!

And here's the judgement. It's tedious reading, but anyone concerned about the future of human rights protection in Canada should peruse it in full. The section to pay attention to is the second one, concurred in by two of the three judges who let Whatcott off.

In the first part, Justice D.C. Hunter, with the concurrence of Justice Nicholas Sherstobitoff,
find the comment reproduced above about AIDS and child abuse dubious (para. 79), but it did not, say the judges, taint the contents of the flyer as a whole. Good grief.

Of more consequence, they tacitly accept (para. 63) a false distinction between homosexuality and homosexual behaviour, because, they say, quoting another judge, there are people out there who make that particular distinction. In an era, in other words, when same-sex marriage is accepted and discrimination and hatred against homosexuals is against the law, it is still permissible to attack them for the very sexual practices that define them as homosexual in the first place.

Someday, as rulings like this continue to erode human rights legislation, it is entirely possible that an anti-Semite will escape court censure for discrimination because it will be held that his defacing of a kosher restaurant was not directed at Jews, but only at their practices. He would be guilty of vandalism and nothing more. Plain bigotry on the part of the unwashed can become, as we already see, chop-logic in the hands of a complaisant judiciary.

In any case, the first part of the ruling is bad enough: but Justice G.A.
Smith, with the concurrence once again of Justice Sherstobitoff, goes much further in the second part.

In a nutshell, the judges establish a hierarchy of bigotry, attempting to make the case that race and religion are somehow more important grounds of discrimination than is sexual orientation. Smith sets the stage for this at para. 102, develops it in para. 111 and further in para. 124, reinforces the spurious "homosexuality v. homosexual practices" distinction in para. 130, admits in para. 131 that this must "ring hollow" for gays and lesbians, but then accepts explicitly and in toto the "hate the sin and not the sinner" nonsense in paras. 133 and 134, leading to this (at para.136):

The flyers are critical of same-sex conduct. The authors do not want tolerance of that conduct to be taught in schools and they do not want young people to be exposed to it. Thus, the concerns of the complainants and the [human rights] commission with these flyers are not advanced, in my view, by a close analysis of the emotive level of the negative language used in them and this analysis is largely beside the point.

Never mind the hateful language of the Whatcott oeuvre, say the judges--that's irrelevant. What is relevant is disapproval of same-sex conduct, which is perfectly OK: so we are simply to ignore all that talk of "Sodomites," "filth," "sexual politics of a perverted type" and so on.

And the judges finally hammer home their conclusion at para. 138, addressing

the difficulty of interpreting s. 14(1)(b) in such a way that it limits or prohibits pejorative expression in relation to same-sex sexual activity. Such speech engages the constitutional values of freedom of expression in a way that the hate propaganda considered in Taylor does not. In my respectful view, where, on an objective interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a context of comment on issues of public policy or sexual morality, its limitation is not justifiable in a free and democratic society. The objective purpose of such discourse is not the promotion of hatred, and a proper
interpretation of s. 14(1)(b) therefore cannot be said to prohibit or limit it. This is not to say that speech that purports to fall within this category might not be found, on an objective interpretation, to have a more sinister purpose. This would be the case, for example, where the impugned expression is found on proper interpretation to advocate or approve violence on the basis of sexual orientation. [emphases added]

Let the full import of this specious reasoning sink in. Hate propaganda on the basis or race or religion is not to be tolerated. Hateful expression based upon sexual orientation, on the other hand, isn't hatred at all, but a contribution to public policy debate!

This is, not to put too fine a point upon it, an extremely dangerous decision: one which, if allowed to stand, will make the GLBT community increasingly vulnerable in Saskatchewan--and elsewhere, if the judicial madness spreads. An appeal to the Supreme Court of Canada is essential to resolve this matter for the country as a whole, and, more particularly, for GLBT citizens whose Charter rights have just taken a significant judicial walloping.

[H/t BigCityLib]

*Nudged by my friend Bene Diction, I dug around a little more, and I appear to be wrong in stating that Whatcott is or was a "pastor." He seem to be more of an Xian freelancer, but he's nominally a Catholic.

1 comment:

Cameron said...

But but but I thought the reason we could get rid of the HRC was that the judicial branch would handle all these real cases... I'm confused...