Oh no, Canada

Terry Jeffrey
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Posted: Jul 09, 2003 12:00 AM

Henry VIII would well understand some recent rulings by Canadian courts. But the rulings may point to America's future as much as England's past.

The Canadian judgments are not as drastic as Henry's. Heads are not rolling in Ontario. But the issue is the same one the English tyrant raised in the 16th century and U.S. courts may face again soon: Can government compel people to act against their conscience?

Thomas More, Henry's one-time chancellor, bared his neck to an executioner rather than take an oath demanded by Henry.

More would not risk his eternal life on what he deemed incorrect theology. While conceding Henry's sovereignty over the state, he denied his supremacy in matters of faith and morals. As a Catholic, More believed that authority belonged to the Pope. That was not good enough for Henry: He beheaded More to intimidate others unwilling to surrender their souls to the king's moral guidance.

Catholics and non-Catholics, of course, disagree on More's theology. But lovers of liberty, from many religious traditions, cherish the freedom of conscience More died to defend. As late as 1966, Hollywood made an Academy Award-winning film -- "A Man For All Seasons" -- celebrating More's life.

So what in Canada reminds me of More? Take the case of Scott Brockie, an evangelical Christian who owns a Toronto printing business.

In 1996, Ray Brillinger, then-vice president of the Canadian Lesbian and Gay Archives, asked Brockie to print the group's letterhead, envelopes and business cards. According to an opinion issued last June by the Ontario Divisional Court, Brockie held "a sincere religious belief . . . that homosexual conduct is sinful and, in furtherance of that belief, he must not assist in the dissemination of information intended to spread the acceptance of a gay or lesbian ('homosexual') lifestyle. Mr. Brockie draws a distinction between acting for customers who are homosexual and acting in furtherance of a homosexual lifestyle."

No one contested that Brockie served gay customers. The question was whether government could force him to print materials for an organization that promoted the gay lifestyle.

Brillinger complained to the Ontario Human Rights Commission. The commission ordered Brockie to pay $5,000 in damages and to provide printing in the future to gay and lesbian organizations.

Brockie appealed. The Divisional Court split the difference. Brockie, it said, should have printed the materials requested by the Canadian Lesbian and Gay Archives, because "limits on Mr. Brockie's right to freedom of religion in the peripheral area of the commercial marketplace are justified where the exercise of that freedom causes harm to others . . . by infringing the . . . right to be free from discrimination based on sexual orientation in obtaining commercial services."

On the other hand, the court conjectured, there might be limits to the limits government could place on Brockie's religious freedom even in the marketplace. It probably could compel him to print "a directory of goods and services that might be of interest to the gay and lesbian community." It probably could not compel him to print "material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle."

A future Canadian court may define the line between these two -- or obliterate it.

Another ruling issued in Ontario last June was not ambiguous. Superior Court Justice Robert MacKinnon ordered Monsignor John Pereyma High School to allow 17-year-old Marc Hall, an avowed gay, to attend the senior prom with his 21-year-old boyfriend. The board governing the school argued that allowing a gay couple to attend to the prom would contravene Catholic teaching about homosexual behavior and send the wrong message to Catholic students. The judge swept aside these arguments, and forced a Catholic school to act against its understanding of Catholic teaching.

That's what Henry VIII tried to do to Thomas More.

Do these Canadian controversies foreshadow American controversies?

Three years ago, Justices Anthony Kennedy and Sandra Day O'Connor joined the conservatives on the Supreme Court in a 5-4 decision holding the government could not force the Boy Scouts to retain an avowedly homosexual scoutmaster because the Scouts organization believes "homosexual conduct is inconsistent with the values it seeks to instill." Last month, Kennedy and O'Connor joined the court's liberals in declaring a constitutional right to homosexual sodomy.

If Kennedy or O'Connor change their minds about the Boy Scouts of America, or if another liberal is confirmed to the court, the Scouts might as well move to Canada.