© 1998  Karen Selick
Human Rights Ruling Endangers All
An edited version of this article first appeared in the April, 1998 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.



 
 

Human Rights Ruling Endangers All

"If you canít say something nice, donít say anything at all," was the advice many of us heard from parents or teachers as we were growing up.  Now, it appears, this advice is out of date.  No longer is it acceptable to remain silent on subjects where you have nothing nice to say.  Now, according to our so-called human rights laws, there may sometimes be a positive duty to say something nice, even when you donít believe it. 

Just ask  Dianne Haskett, the mayor of London, Ontario.  In 1995, the Homophile Association of London Ontario requested that she proclaim a Gay Pride Week.  She refused, stating that it was her policy not to make proclamations on sex-related subjects.   A complaint was lodged with the Ontario Human Rights Commission.  Appearing before a board of inquiry last summer, Ms. Haskett, a Christian, said that making the proclamation was contrary to her religious beliefs. 

The board fined Ms. Haskett and the London City Council $10,000 and ordered them to make the proclamation if the request were renewed.  It also ordered them to make a "statement of recognition" that the cityís "gay, lesbian and bisexual communities" are "integral and important" to the city.

The London incident is not the first of its kind, nor apparently will it be the last.  In 1995, the mayor of Hamilton, Ontario was fined $5,000 and ordered to proclaim Gay Pride Week.  The mayor of Fredericton, New Brunswick, is facing a similar complaint to the Human Rights Commission. 

According to a New Brunswick law professor quoted in The Globe and Mail, the refusal of a public official to make such a proclamation might be considered "inciting or promoting hatred" against homosexuals. 

Many Ontario municipalities have decided to stop proclaiming special days altogether, rather than get embroiled in the gay pride controversy.   In my view, this is the right result, but for the wrong reason.  I donít think it is part of the proper role of government to proclaim special days regardless of whoís asking.  Events such as Tap Dance Day, Tartan Day, Shoe Week and Vegetarian Month (all genuine proclamations made by some level of government or other in the past) are simply not part of the reason we have governments.

In fact, this controversy highlights one of the perpetual problems of government.  When we are all forced to contribute to the common pot, each of us feels, quite justifiably, that he or she has a right to say how the pot should be used.  If I happen to be gay, Iíll believe I have a right to hold a gay pride parade on the city streets.  After all, theyíre "my" streets, arenít they?  Similarly, neo-Nazis will feel they have a right to hold Nazi parades on "their" streets.  Avoiding this sort of free-for-all over public property is just one of many good reasons why the scope and property of government should be strictly limited. 

Unfortunately, though, thatís not a sufficient solution.  The human rights tribunal was empowered to fine and coerce an involuntary statement out of the London City Council not because council was a public body and the keeper of the common pot.  The tribunal derived its power from the fact that the making of proclamations is considered a "service" provided by the city of Londonóa service available to the public.  Under the Human Rights Code, anyone who makes services available to the public is subject to similar treatment, be it a government or a private business.

So if, for example, a Christian who believes homosexuality is immoral owns a magazine that accepts advertising from the public, he would not be able to refuse an advertisement from a gay group. 

Why canít gays see that what they are now doing via "human rights" legislation is the very same thing that was once wrongly done to them?  They are using the power of the state to force their views on others who donít share them. 

Yes, it was wrong that our laws once made criminals out of adults who engaged in consensual homosexual sex.  But those laws have long since been repealed.  Thatís as far as the stateís role in this issue should go.  To attempt to change peopleís views on homosexuality, or to forbid them to express their views under threat of punishment, is simply to make the same mistake all over again in the opposite direction.

A government that is powerful enough to outlaw discrimination by private individuals is also a government that is powerful enough to compel discrimination when the public mood changes.  A population that is intimidated into compliance when the state tells it to embrace a particular minority group will also be intimidated into compliance when the state tells it to attack a particular minority group.  The danger we all face, heterosexual or homosexual, lies in the power of the state, not in the opinions of private individuals.  The crucial distinction is that the state holds a legal monopoly on the use of force, while individuals are legally forbidden from using force.

These days, "human rights" laws allow some individuals to tap the stateís coercive powers for private purposes.  This abuse of power must end.
 

 

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June 20, 2000