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Wildrose leader Danielle Smith makes a point while ranchers look on during a campaign stop near Cremona, Alta., Monday, April 2, 2012. Albertans go to the polls on April 23. (Jeff McIntosh/THE CANADIAN PRESS)
Wildrose leader Danielle Smith makes a point while ranchers look on during a campaign stop near Cremona, Alta., Monday, April 2, 2012. Albertans go to the polls on April 23. (Jeff McIntosh/THE CANADIAN PRESS)

CLIFFORD ORWIN

Conscience rights? If you don't like the law, you can quit Add to ...

What will Albertans soon possess that Saskatchewanians and British Columbians won’t? No, not just abundant tar sands but “conscience rights.” That’s if the Wildrose Party forms the next government, for “conscience rights” are the brainchild of its leader, Danielle Smith.

As an Ontarian, I take no position on Alberta elections. I do take one on this issue, however. Not all brainchildren deserve to live, and this one of Ms. Smith does not. You’d think that, if anyone would go for this line of patter, I would. Didn’t I recently offer, on this very page, a ringing defence of religious freedom? Isn’t religious freedom also known as “freedom of conscience”? Why, then, quibble with the seemingly synonymous “conscience rights”?

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Because, by “conscience rights,” Ms. Smith doesn’t mean freedom of conscience. She means the right of a provider of public services to provide those services only selectively. A marriage commissioner, for instance, would be free to decide whether or not to perform a same-sex marriage, a health professional whether or not to perform an abortion, and a pharmacist whether or not to provide contraceptives.

There are some problems with this. The first is that doctors and pharmacists in Alberta already operate under “conscience codes” supervised by their professional associations. These permit them to opt out of the procedures mentioned. For them, “conscience rights” would be mere political grandstanding.

Marriage commissioners present a different problem. They don’t already enjoy such rights – and they shouldn’t.

Alberta’s marriage commissioners are private entrepreneurs whom the province authorizes to provide a public service. That service is to marry people. While their fees are paid by their clients, it’s only because the province appoints them that they can perform legal marriages. (These are civil marriages, of course; were they religious ones, and the commissioners clergy, different standards would apply.)

The question then becomes whether those whom the province has appointed expressly to administer its marriage law (and who have freely accepted this appointment) should be legally entitled to administer only as much of that law as pleases them.

In a free and democratic society, the law must be the law for all. As citizens, our obligation to obey is not conditional on our agreement with it. Liberal citizens are bound by laws passed by Tory governments. Judges and juries must apply the law whether or not they approve of it. We’re always free to decry a given law, protest against it, work for its repeal. It doesn’t bind us any less for that.

The rule of law depends on just this separation of public practice from private opinion. A public servant, who’s charged not only with obeying the law but with executing it, is duty bound to honour it in its entirety. Police officers are charged with enforcing all the laws, not just the ones that command their personal agreement. The issue isn’t, as Ms. Smith claims, “individual rights.” The issue is the rule of law. There’s no “individual right” of an appointed agent of the law to flout or otherwise frustrate it.

But suppose an Alberta marriage commissioner decides she can no longer in good conscience minister to the province’s marriage law in its august entirety. What then? Well, there’s always that old-fashioned “conscience right” called quitting. You do read that there’s other work to be had out there.

Clifford Orwin is a professor of political science at the University of Toronto and a distinguished fellow at Stanford University’s Hoover Institution.

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