John Leo
'Canada is a pleasantly authoritarian country," Alan Borovoy, general counsel of the Canadian Civil Liberties Association, 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 has a loophole for religious opposition to homosexuality, but few scholars think it will offer protection, given the strength of the gay lobby and the trend toward censorship in Canada. Law Prof. David Bernstein, in his new book "You Can't Say That!" 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 laws generally trump 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, a British Columbia court 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 discrimination, merely of expressing thoughts that the state defines as improper.

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. If a student says something that irritates homosexuals in class, the student's parents might be held legally liable. Some Canadians worry that, for instance, discussions about gay men giving blood will be suppressed. Robert Spitzer of Columbia University, a longtime supporter of gay rights and an important figure in the American Psychiatric Association, 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 focuses broadly on "sexual orientation," Canada's freewheeling judiciary may explicitly extend protection to many "sexual minorities." Pedophilia and sadism are among the conditions listed by the American Psychiatric Association under "sexual orientation."

Church foes? 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." 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 versus sexual orientation."

It's starting to be defined just 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's stating that homosexuality is sinful might be a criminal offense, and a Pentecostal minister is already facing charges. 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 limiting 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 antidiscrimination laws in many areas, and once stalwart free-speech groups, like the American Civil Liberties Union, have mostly gone over to the other side. An unlikely split has occurred. In the interest of fighting bias, liberal groups reliably promote laws that limit First Amendment principles. The best defenders of free speech and freedom of religion are no longer on the left. They are found on the right.


John Leo

John Leo is editor of MindingTheCampus.com and a former contributing editor at U.S. News and World Report.

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