What difference does it make that people are paid from the public purse when it comes to the accommodation of conscience or religious beliefs? This question seems to underlie much contemporary discussion about how far the beliefs of, say, marriage commissioners or doctors (to name two) should be accommodated.

The best way to approach this question is to recognize that beliefs must always be accommodated in relation to work whether the setting is private or public. In a human rights context this means that in the private setting, employers must accommodate the beliefs of other people up to the point of undue hardship. Discrimination is allowed where such discrimination can be held to be a bona fide occupational requirement or where there are, as in many provinces, special employer exemptions. For organizations that fit within the statutory language in the provinces that have such provisions, the non-discrimination provisions of the Human Rights legislation do not apply. Typically the list of such employers includes special exceptions for “educational,” “charitable,” “religious” or “philanthropic” employers.

The issue here, however, is one of principle. We value personal conscience and religious beliefs as being of such importance to all of us that we make exemptions to rules of general application regarding discrimination. We allow for and insist upon accommodation of difference.

As noted scholar in the area Alvin Esau has written:

Is our society so illiberal that it cannot accommodate groups which generate a diversity of normative practices? At what point do we have the moral confidence to justify limiting liberty through law, or do we just base law on the values of the groups that happen to have the most power and popularity?....We need multiple sources of meaning if genuine pluralism is to be achieved in the face of the totalizing forces of the State and popular culture.

Alvin Esau “Islands of Exclusivity”: Religious Organizations and Employment Discrimination” (2000) 33 UBC Law Rev. Special Edition, 719 – 827 at 736 – 737.

Professor Esau’s question about whether our society is “so illiberal” or not is, once again, an open one in Canada; currently it applies to physicians and marriage commissioners; the first in relation, again, to abortion and the second, in relation to same-sex marriage.

To what extent are divergent viewpoints going to be tolerated in these contentious areas? That is what is at issue where accommodation is concerned. Concerning physicians, this is nothing new. The governing body of the medical profession, or its professional wing at any rate, the Canadian Medical Association, has developed excellent policies to allow physician dissent against practices with which a particular physician is in strong disagreement. As we shall see, however, this accommodation still rankles some people, and the pressure is always there to force physicians to do what they are opposed to on religious or moral grounds.

The Canadian Medical Association (CMA) does not take the position that once one is a doctor, he or she must, in exercise of that “public” function, duly licensed, and largely funded by the state, provide a “full range” of services or that to refuse to perform an abortion, or to refer for one, was to treat women seeking abortions (who have the right to abortions if they wish) as “second-class citizens.” In fact, at various times, this has been an argument to try to narrow the scope of the conscience and religious rights of physicians. That argument has, so far, failed. What the CMA has done is set out in the following principles:

[1.16] Health care providers should not be expected or required to participate in procedures that are contrary to their professional judgement or personal moral values or that are contrary to the values or mission of their facility or agency. Health care providers should declare in advance their inability to participate in procedures that are contrary to their professional or moral values. Health care providers should not be subject to discrimination or reprisal for acting on their beliefs. The exercise of this provision should never put the person receiving care at risk of harm or abandonment.

[ 2.11] If a health care provider cannot support the decision that prevails as a matter of professional judgement or personal morality, allow him or her to withdraw without reprisal from participation in carrying out the decision, after ensuring that the person receiving care is not at risk of harm or abandonment.¹

Further, the express CMA Policy on Induced Abortion states that a physician who is opposed to abortion due to moral or religious beliefs “should inform the patient of this so that she may consult another physician.” Nothing is said about a duty of referral and the language used, suggests otherwise; it is up to the patient (“she”) to consult another physician, not the dissenting physician to refer her to one.

Further, the Policy makes clear that “no discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology and anesthesia.” (Canadian Medical Association: Policy, Induced Abortion, December 1988, emphasis added)

What the allowance of refusal does is strike a balance between two citizens who have different viewpoints on a controversial issue. It provides that the physician has a duty to explain in a civil manner why he or she cannot provide the service sought; the person seeking the service must go elsewhere if the physician will not perform or supply the service.

Logically there should be no right of referral either. The imposition of a duty of referral upon a person opposed to something like abortion is the equivalent of forcing a person who is opposed to, say, capital punishment, to drive a condemned person to the gallows while allowing them to refuse to pull the rope: to the person opposed to capital punishment (or abortion) being involved in any part of the means to the objected end is involvement in the process itself and a supposed “requirement” to do so, therefore, provides no real respect for dissent. Surprisingly, this seemingly obvious argument and philosophical point is once again being debated within the medical profession by those who wish there was such a duty of referral on the part of physicians. In a July 4, 2006 editorial in the Canadian Medical Journal law professor Sanda Rogers and Health Law Institute scholar Jocelyn Downie, argue in a baldly assertive (and philosophically unsound) way that there is a duty of referral on physicians.

This is simply wrong. The physician has no duty of referral. Once he or she has stated clearly and without rancor, an objection to any procedure and told the patient, there is an end of the matter. The patient must find someone else to do the procedure. Anything more than this denies proper respect for the freedom of conscience and religion of the health care provider and subordinates entirely his or her rights to a supposed “right to the procedure facilitated by this person” of a patient. There is no such right nor can there be.

Jeff Blackmer, Executive Director of Ethics of the CMA, writing an electronic letter on February 19, 2007 writes a “Clarification of CMA Policy” to the Canadian Medical Journal pointing out the “misrepresentation” by the two law professors in these terms:

Although current CMA policy does not state or imply a moral obligation for physicians to refer patients for services to which they are opposed for personal or moral reasons, they should not prevent or delay patients from accessing those services http://www.cmaj.ca/cgi/eletters/176/4/4942/20/2007 .

It is a long way from “preventing” or “delaying” a “service” to requiring referral. Sanda Rogers and Jocelyn Downie, in misrepresenting the CMA policy and pressuring for a forced duty of referral on the part of physicians, just further recent examples of those whom we have often described in Centre materials as pushing the “liberal fundamentalism” (the term is John Gray’s) of “convergence liberalism” - - this time in the area of medical ethics. This “one-size fits all” school of pseudo ethics will continually pressure all aspects of the state and all citizens within it to do what they think should be done; to hell with accommodation.

One might well ask why such a misleading “guest editorial” even got into the CMAJ in the first place; will the journal allow a proper rebuttal? Will they, for example, print this short piece in response - - we would happily give permission for them to do so. Alas, as we learned some years ago when a similar set of misrepresentations of law and policy were put forward in the pharmaceutical area by Canada’s leading Pharmaceutical Journal, professional journals with axes to grind are sometimes not really the open and honest things they claim to be see:, Iain T. Benson “A Response to Frank Archer” at http://www.consciencelaws.org/Examining-Conscience-Legal/Legal04.html .

What the above CMA policies, when properly understood, do is precisely not to subject one citizen to the binding viewpoint of others on a matter about which there is legitimate legal scope for disagreement.

The argument that one citizen treats another as a “second-class citizen” when the first refuses to perform a service for another based upon the exercise of a constitutionally protected right (conscience or religion) focuses the inquiry of the conflict of beliefs in the wrong place. The way to solve “collision of rights” where they occur is through balancing not subsuming the rights of one citizen to another.² As it is with medical procedures, so it should be with those seeking marriage.

When a person seeks a same-sex marriage the right is to be married not to be married by this particular citizen acting as a Marriage Commissioner. The right of the freedom of conscience and religion exists in the citizen who exercises his or rights to conscience and religion and can be manifested by the citizen, the right to have a same-sex marriage is not attached to any particular citizen for its fulfillment whether or not the citizen occupies a public office. A more nuanced view of what rights are actually at issue shows a way out of the conflict without subsuming the conscience and beliefs of all citizens to one standard on a matter (same-sex marriage) about which diversity of viewpoints are allowed as long as they are expressed in ways that a free and democratic society can tolerate. In this way rights conflicts (when they exist) can be reconciled without eradicating one by the other.

Recall that the test on review of the claim for religious liberty is that the person claiming it is “sincere” and “honest”, and that is an objective not a subjective test. It focuses on the person claiming the religious liberty, not the one affected by it.

When a citizen, in an appropriate manner, sets out grounds for a conscientious or religious objection, the duty shifts to the State (or employer) that is to say, other citizens to create the appropriate conditions for that reasonable accommodation. Some commentators appear to have this the other way around, and focus the inquiry on responses to the claim of religious liberty rather than where it should be focused - - the request for conscientious and religious exemption. To focus on the “feelings” of the person that is at the other end of the conscience or religious refusal deflects us from the proper task at hand and would, in almost every case, be a rationale to treat the exercise of the conscience or religion refusal as irrelevant. A better example of a failure to place any weight at all on the scales of the balance can scarcely be imagined. Exemptions should always be used where the conflict has no other manner of being resolved.

In the Marriage Reference the unanimous Supreme Court of Canada found that religious beliefs should be respected in both the religious and the civil areas.

On the fourth question of the Marriage Reference, “does the freedom of religion guaranteed by s. 2(a) of the Charter protect religious officials from being compelled to perform same-sex marriages contrary to their religious beliefs?”, the Court pointed out that the compulsion which the question envisages is by the State and then pointed out that such compulsion for officials or for “sacred places” would violate the guarantee of the freedom of religion under s. 2(a) of the Canadian Charter of Rights. Most significantly, the guarantee was found to be “….broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.³ It is a sad state of affairs when provinces require marriage counsellors to do things against their consciences - - when such restrictions are challenged in court it is hoped that the courts will not succumb to the bullying of those who wish everyone to march to their own drummers.

Since the freedom of conscience is also protected in Section 2(a) of the Charter, it stands to reason that the objections of marriage commissioners need not be grounded in religion to be protected - - a conscientious objection to same-sex marriage would suffice. Lest I be misunderstood, it is also the case, that conscience or religious objections to heterosexual marriage could, on this reasoning, also require accommodation. The currents of conscience viewpoints and religious viewpoints need not flow only in one direction. This point should be considered in view of the fact that moves to either poly-amory (allowing for group marriage) or polygamy might raise other concerns in the future.

For both issues, therefore, and for many others, the invocation of a public position, as if such a position should act as a complete suppression on the beliefs of citizens, must be avoided. Diversity is, in fact, key to liberty. That great historian and scholar of liberty, Lord Acton, wrote of the dangers of “single definite objects” being the end of the State and wrote as follows:

Whenever a single definite object is made the supreme end of the State, be it the advantage of a class, the safety or the power of the country, the greatest happiness of the greatest number, or the support of any speculative idea, the State becomes for the time inevitably absolute. Liberty alone demands for its realization the limitation of the public authority, for liberty is the only object which benefits all alike, and provokes no sincere opposition….The presence of different nations under the same sovereignty is similar in its effects to the independence of the Church in the State. It provides against the servility which flourishes under the shadow of a single authority, by balancing interests, multiplying associations, and giving to the subject the restraint and support of a combined opinion. In the same way it promotes independence by forming definite groups of public opinion, and by affording a great source and centre of political sentiments, and of notions of duty not derived from the sovereign will. Liberty provokes diversity, and diversity preserves liberty by supplying the means of organization.⁴

The right to dissent for doctors and marriage commissioners is, like the right to dissent for all citizens, an essential right to preserve for the sake of all of us. Any inconveniences, embarrassments, lack of affirmation or implicit “judgment” occasioned by such dissents are part and parcel of living in a free society. Professionally, dissent should be managed through careful planning and fore-notice on the part of the dissenter. The movement to suppress “diversity” is a threat to everyone and all too predictable a part of the “one size fits all” folks who are the real menaces of our time.

Iain T. Benson ©

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