The Supreme Court's ruling in the Whatcott case, a nuanced and well-crafted decision, resolves a number of important issues concerning the interpretation and constitutionality of human rights codes. But in spite of the court's assurances that individuals remain free to debate questions of sexual morality in the public sphere, the practical effect of the ruling is to all but strangle certain kinds of argument – particularly those made from a religious point of view.
The decision rests on a compelling premise: that published statements treating members of vulnerable minority groups as somehow less worthy of dignity or respect – as less human – than the rest of us don't deserve the same degree of Charter protection as other exercises of expressive freedom.
The reason is simple. By demeaning members of that group, and suggesting that they are inherently immoral, irrational or criminal, one effectively makes it more difficult for them to participate in public discourse.
The kneejerk response is to say, as Bill Whatcott and several intervenors did, that one can criticize a practice without suggesting that those who engage in it are somehow subhuman or less worthy of respect as persons. The court agreed, to a point. But some practices, it observed, are so central to the identity of a group that one cannot disparage one without degrading the other. It is, for example, difficult to criticize the act of engaging in homosexual practices without suggesting that there is something inherently wrong with those who want to engage in them.
One can still criticize certain sexual practices, but the objection must be framed in such a way that it is not irretrievably tied to the identity of a particular vulnerable minority. In other words, one may not proceed on the basis that a practice is made worse or more disgusting merely because bisexual, lesbian or gay persons engage in it.
The court goes to great pains to argue that its ruling in Whatcott does not bar religious persons and groups from expressing their views about sexual morality in the public sphere. That may be true in principle, but in practice, I am not so sure. For many Christians, the fact that a sexual practice is engaged in by members of the same sex is spiritually and morally significant. Requiring them to frame their arguments against certain sexual practices as though the gender of the participants is irrelevant will tend to distort their views.
We should not kid ourselves, either, that this ruling won't affect the expressive freedom of those too unsophisticated or inarticulate to construct an argument addressing the merits of sexual practices without disparaging those who engage in them. The court in Whatcott engaged in a line-by-line reading of the offending pamphlets, parsing them much more finely than the lower courts. It is all well and good to say that someone who wants to engage in debate on such a sensitive issue ought to be "encouraged" to think carefully about how his words are likely to be received. But if one cannot enter into the debate without first having a lawyer vet the text, we have imposed a very real burden on those who believe that their religious principles require them to proselytize on sexual morality.
The decision in Whatcott forces one to ask just how important it is that matters of private sexual morality be debated in the public sphere. Maybe it's fair enough to say that the state has no place in the bedrooms of the nation. But does that mean private citizens should not be allowed to express an opinion about what goes on in them? After all, although it may seem a trivial matter for many of us, for others, sexual morality is tied to questions of the highest spiritual significance and urgency. Perhaps a commitment to equality demands that their views be muffled somewhat. If that is true, though, we should be honest about what we are doing.
Michael Plaxton is a law professor at the University of Saskatchewan.