Thursday, April 12, 2007
California Mischief
The California legislature seems to do little but get into mischief. Current bills under consideration include AB 374, titled the “California Compassionate Choices Act,” which authorizes physician-assisted suicide. There is also legislation to legalize homosexual marriage (AB 43), create additional rights for homosexuals (AB 14 and SB 777), restrict parents’ right to discipline children (AB 755) and allow illegal aliens to obtain driver’s licenses (SB 60). Hat tip to Pacific Justice Institute.
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A concern I have is that if the evangelical church declines to a point in Canada where "liberal Christianity" is far more dominant than even today, is whether the rights of Biblically based Christian churches to abstain from performing same-sex marriages will continue to be protected. I therefore opposed same-sex marriage for the sake of society and the church.
In Canada, the Liberal government brought in the following in 2005:
Bill C-38
C. Religious Marriage (Clause 3)
Clause 3 recognizes that officials of religious denominations may refuse to perform marriages that are at odds with their religious beliefs. It is worth noting that the Court’s reference decision considered a differently worded provision of the draft legislation under which “[n]othing in this Act affects” religious officials’ freedom not to officiate at same-sex marriages. The Court found that provision ultra vires Parliament’s constitutional authority, in that it related to those who may perform marriages, a matter over which provincial legislatures have exclusive competence under subsection 92(12) of the Constitution.(27) A revised version of that provision’s terms is set out in the preamble’s seventh paragraph where, as noted, it serves to provide context and rationale for the legislation.
Ultimately, the Court observed, “it would be for the Provinces, in the exercise of their power over the solemnization of marriage, to legislate in a way that protects the rights of religious officials while providing for solemnization of same-sex marriage” (par. 55). In this regard, the Court added, “[i]t should also be noted that human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter” (par. 55). In the Court’s view, “it … seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter” (par. 58).
Throughout the Bill C-38 legislative process, questions were raised as to whether the recognition language set out at clause 3 is sufficiently distinct from that of the more declaratory language of the former draft provision to pass constitutional muster. The matter may not arise, in the absence of a legal challenge to the provision.
D. Freedom of Conscience and Religion (new clause 3.1)
The House of Commons Legislative Committee heard from a number of witnesses opposing Bill C-38 that a primary concern from their perspective related to the bill’s inadequate protection of religious freedom, and of expressive freedom based on religious belief, for both religious institutions and officials as well as individuals. The absence of parliamentary authority to remedy this perceived failing owing to the constitutional division of powers was seen by these witnesses as particularly problematic. Acknowledging that the solemnization of marriage and other practical contexts in which the guarantee of freedom of religion is engaged largely fall under provincial jurisdiction, some were of the view that the bill could and should enhance the level of protection available in respect of areas of federal jurisdiction. To address this perceived deficiency, the government proposed, and the Committee adopted, a new provision under which,
For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
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