Coarse and rebarbative though his words undoubtedly were, William Whatcott was not far wrong when, in a flyer titled “Keep Homosexuality out of Saskatoon’s Public Schools,” he pinpointed the massive shift in law and public opinion that had taken place in Canada over the previous 30 years. “In 1968 it was illegal to engage in homosexual acts,” he wrote in one of four flyers he distributed in 2001 and 2002 to denounce the normalizing of homosexuality in schools and the mainstreaming of gay desire in the media, and “now it is almost becoming illegal to question [homosexuality].”
One of the most remarkable aspects of the judgment last week by Canada’s Supreme Court is the impression it conveys that it’s still 1968, that Canada is rampant with homophobia, with gay men and women living in the shadows, anxiously on the alert for the next Christian pamphlet that will unleash public humiliation and cruel reprisals. Is it irrelevant that six of the nine justices are senior citizens, four of them over seventy years of age? Do hellfire evangelicals wield such an enormous social influence that far-reaching measures by an enlightened Court are needed to protect sexual minorities? Canadian society has been a relatively welcoming place for gay men and lesbians for decades, with gay marriage legalized in 2005 and gay urban enclaves set up well before hate speech provisions existed. There is not complete acceptance of homosexuality in all quarters, but neither is there anything close to wide-scale discrimination. Nonetheless, the Supreme Court judges, in striking their phantom blow against prejudice, have handed down a decision that restricts the free expression of a religious minority and limits truth-based arguments on matters of pressing concern.
Much has already been written about the absurdities and inconsistencies of the Supreme Court decision, which affirms the constitutionality of Canada’s notorious hate speech laws and upholds Whatcott’s 2005 conviction, by the Saskatchewan Human Rights Tribunal, for hatred. A member of “Christian Truth Activists” and a former addict who became a biblically faithful Christian while in jail, Bill Whatcott campaigned to prevent the Saskatoon Public School Board from introducing discussion of homosexuality in Grades 3 and 4. His use of ugly words such as “sodomy,” “buggery,” and “filth” to describe homosexuality, and his apocalyptic-style warnings that “Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the Sodomite desire to socialize [them]” convinced the Court that his flyers went well beyond merely offensive speech.
The judgment seems to assume that blunt and old-fashioned words—though laughable to many in Canadian society today— are more dangerous than sophisticated ones. (As Bruce Bawer astutely points out, Whatcott’s obsolete wording is more likely to have crystallized opposition to him than to have incited hatred in previously hate-free hearts or “silenced” the targets of his opprobrium, as the Court avers.) Rather than rehearse the entirety of the foolishness and illogicalities in the decision, I will make a few points about the preoccupation with “effect” as the determinant of unacceptable speech. In focusing not on the content of Whatcott’s expression—in which case the judges would have had to acknowledge the statements about God’s grace that soften his abrasive message—but instead on its presumed effect, the decision creates a legal nightmare that advances an unworkable concept of hate, exposes Christians to contempt, and insulates repugnant Muslim doctrines, simply because they are held by Muslims, from justifiable exposure and attack.
As a number of critics have already pointed out (see especially Andrew Coyne’s brilliant article), you can’t get a much vaguer or more hypothetical definition of hate speech than its “likely effect” as determined by a “reasonable person.” As any reasonable person can attest, a “likely effect” concerning something as subjective as hatred can never be known in advance. It might be that a targeted group is as likely to be vilified because of excessive praise as because of hateful censure: would the praise then, in its harmful effect, constitute hate speech too? More to the point in this case, might the Court’s prohibition of expressions of hatred towards homosexuality actually exacerbate such hatred by creating the (not unfounded) impression that homosexuals are granted special legal protections not available to heterosexual Canadians?
Even more confounding to logic is the Court’s related claim that “proof of actual harm” need not be established in relation to hate speech. “The seriousness of the harm to vulnerable groups,” the Court states, is so great that it needs no demonstration, being “part of the everyday knowledge and experience of Canadians.” In a culture in which storefronts sport the rainbow flag to declare their allegiance with gay people, Hollywood celebrates gay heroes (and condemns evangelicals), and thousands applaud Gay Pride Parades in every major Canadian city, it is not clear that homophobia is “part of the everyday knowledge and experience of Canadians.” The Court’s fundamental assumption about the self-evidence of prejudice and therefore of the harm of hateful speech is demonstrably false.
Given that the Supreme Court’s own reasoning defines hate speech by its likelihood to cause an identifiable group to be subject to prejudice and discrimination, one could reasonably conclude that the judgment is itself an example of hate speech directed at bible-believing Protestant evangelicals, a religious minority comprising about 8% of the Canadian population according to a recent report. Is it not likely that many of the self-righteous and politically correct members of the chattering classes who read about the Supreme Court judgment in their Thursday newspapers experienced a satisfying frisson of disgust and smug horror against Christians? A main concern of the Court is that hate speech may cause people to “reconsider the social standing” of a vulnerable group. Many well-heeled secularists are already inclined to feel contempt for Christians who believe the Bible’s moral injunctions; now they have an enhanced reason to do so, and from a source far more respectable and influential than Whatcott’s crudely written flyers.
Given the massive increase in violence against Christians in the Muslim Middle East over the past two years, is there not a well-founded fear that the Supreme Court’s decision will reduce Canadians’ indignation over the persecution of the same group presented in the Court decision as hateful and malignant? Such speculations are, admittedly, as vague as the Supreme Court’s own definition of hate speech. Still, there can be no doubt that the Court decision places a particular limitation on Christian discourse, suggesting that speaking the Bible’s truth is unacceptable and that restrictions on Christian freedom are necessary to protect others from harm. By implication, Christians like Whatcott are a menace to society, a belief that the Supreme Court decision defines as typical of hateful expression.
Finally and most grievously, in affirming that “even truthful statements may … expose a vulnerable group to hatred,” the Supreme Court ruling places an ill-advised limitation on fact-based criticism of minority groups, especially those groups whose ideology and cultural practices may be heinous enough that their mere recitation is likely to incense and repulse listeners. The Court’s overwhelming concern is “the need to protect the societal standing of vulnerable groups”—but what if the “vulnerable groups” have beliefs and practices deserving of censure? The Court would suggest that one should draw the line at sweeping and vehement denunciations. Referring to cases of anti-Semitism, the Court notes that hate speech typically creates the false impression that a certain group is responsible for social problems or seeks to undermine Western civilization.
But what if the group actually does seek to undermine Western civilization, as Muslim Brotherhood strategy states? According to the Court, it doesn’t matter if criticisms are true or not, for “to the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects” as gutter-variety hate—and must be penalized. This is astounding. If truth is no defense against the charge of fomenting hatred, then we confront the collapse of all rational discourse in this country. The ruling comes at a time when there is a pressing need to speak about injurious Islamic practices such as honor killing, creeping Sharia enforcement, Jew hatred, and female genital mutilation—to say nothing about vicious physical as well as verbal attacks on homosexuals. What the Court clearly cannot imagine or accept is that there might be cases in which detestation of a culture’s practices is justified, even beneficial. Should not any group advocating a fascist program be exposed and denounced in vehement terms?
The Canadian Supreme Court’s overarching imperative to “protect the societal standing of vulnerable groups” makes the answer "No." I am still shaking my head in disbelief.
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