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Support for Free Speech Is Disappearing on the Left

April 11, 2004

“Canada is a pleasantly authoritarian country,” Alan Borovoy, general counsel of the Canadian Civil Liberties Union, said a few years ago. An example of what he means is Bill C-250, a repressive, anti-free-speech measure that is on the brink of becoming law in Canada. It would add “sexual orientation” to the Canadian hate propaganda law, thus making public criticism of homosexuality a crime. It is sometimes called the “Bible as Hate Literature” bill, or simply “the chill bill.” It could ban publicly expressed opposition to gay marriage or any other political goal of gay groups.

The bill contains a loophole for religious opposition to homosexuality, but few scholars think the loophole will offer protection, given the strength of the gay lobby and the trend toward censorship in Canada. Law professor David Bernstein, in his pro-free-speech book “You Can’t Say That!” published late last year, wrote that “it has apparently become illegal in Canada to advocate traditional Christian opposition to homosexual sex.” Or traditional Jewish or Muslim opposition, too.

Since Canada has no First Amendment, anti-bias law generally trumps free speech and freedom of religion. A recent flurry of cases has mostly gone against free expression. The Saskatchewan Human Rights Commission ruled that a newspaper ad listing biblical passages that oppose homosexuality was a human rights offense. The commission ordered the paper and Hugh Owens, the man who placed the ad, to pay $1,500 each to three gay men who objected to it.

In another case, the supreme court of British Columbia upheld the one-month suspension, without pay, of a high school teacher who wrote letters to a local paper arguing that homosexuality is not a fixed orientation, but a condition that can and should be treated. The teacher, Chris Kempling, was not accused of any discriminatory acts, merely of expressing thoughts that have been defined as improper by the state.

That anti-free speech principle, social conservatives argue, will become explicit national policy under C-250, with criminal penalties attached. Religious groups say it would become risky for them to teach certain biblical passages in their own Bible classes. Some prominent Canadians say that discussions about gay men giving blood will be suppressed. Some 87 percent of Canada’s AIDS cases are gay males.

Robert Spitzer of Columbia University, a longtime supporter of gay rights and an important figure in the American Psychiatric Association for many years, recently published a study finding that many gays can become heterosexual. Would that study be banned under C-250 as hate speech? And since C-250 does not mention homosexuality, but talks only of protecting “sexual orientation,” some think the bill opens the door for Canada’s free-wheeling judiciary to extend protection to many “sexual minorities.” Bestiality, pedophilia and sadism are among the conditions listed by the American Psychiatric Association under “sexual orientation.”

The churches seem to be the key target of C-250. One of Canada’s gay senators denounced “ecclesiastical dictators” and wrote to a critic, “You people are sick. God should strike you dead.” (He later apologized.) In 1998, lesbian lawyer Barbara Finlay of British Columbia said “the legal struggle for queer rights will one day be a struggle between freedom of religion vs. sexual orientation.”

The struggle is beginning to be defined that way in other countries. In Sweden, sermons are explicitly covered by an anti-hate speech law passed to protect homosexuals. The Swedish chancellor of justice said any reference to the Bible stating that homosexuality is sinful might be considered a crime. A Pentecostal minister is facing charges under the law. In Britain, police investigated Anglican Bishop Peter Forster of Chester after he told a local paper: “Some people who are primarily homosexual can reorientate themselves. I would encourage them to consider that as an option.” Police sent a copy of his remarks to prosecutors, but the case was dropped. In Ireland last August, the Irish Council for Civil Liberties warned that clergy who circulated a Vatican statement opposing gay marriages could face prosecution under incitement-to-hatred legislation.

In the United States, the dominance of anti-bias laws and rules over free speech and free exercise of religion is clear on campuses, not so clear in the real world. Still, First Amendment arguments are losing ground to anti-discrimination laws in many areas, and once stalwart free speech groups, like the ACLU, have mostly gone over to the other side. In the interest of fighting bias, liberal groups are willing to silence one side of the debate over homosexuality and several other hot-button social issues. The best defenders of the First Amendment are now on the right.

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