Group rights don't supercede Individual Rights

[Lynda]

Editorial — Bruker: The Supremes "Get" it

2008-01-09 10:04:31

“There is room in this Northern Dominion — under one flag and one set of laws — for one great people. There is no possibility for that greatness — under that same flag and those same laws — if we succumb to a hundred squabbling particularities.” -Thomas D’Arcy McGee

The Supreme Court’s Stephanie Bruker decision was right and a long time in coming. What surprises us is the number of commentaries appearing in the press that have criticized it. One of the leading criticisms is actually one of the two major reasons why the court was so right.

The Bruker case involved a contractual promise signed by Bruker’s ex-husband to grant her a Jewish divorce, a “Get”, in the event of a marriage breakdown. Her ex decided to renege on the written promise claiming that this was a religious matter and freedom of religion superceded contractual obligations. The Supreme Court said no. It upheld contractual obligations, the foundation of the rule of law, and said that freedom of religion was a personal matter and could not overrule, nor be imposed on, secular societal norms.

The criticisms of the decision generally rest on the specious argument that Canada is a “multicultural tapestry” and religious traditions should not be the subject of court rulings. These critiques miss the point entirely and are frankly dangerous to the country.

The Bruker decision was right for upholding the principle that religious sacraments shall never be elevated to secular rights. The very principle the court violated in the same-sex marriage reference. It is important to review why.

Pierre Elliot Trudeau’s purpose with the Charter of Rights and Freedoms was to enshrine the supremacy of individual rights and individual consequence against any forms of discrimination by the state or demands of particularity by a collective. Too often this purpose has been twisted by “progressives” who insist that it created new classes of group rights — whether religious, cultural or sexual. It was never meant to do that.
As Trudeau said so often “It is no small matter to know whether we are going to live in a society in which personal rights, individual rights, take precedence over collective rights. When collective rights take precedence over individual freedoms we cannot claim to live freely.”

It matters not if a citizen wants to have carnal knowledge of a McCormick Reaper. Choices are protected from discrimination by the state and the services it offers. But this does not mean that there are thereby created a new body of group rights based on sexual proclivity that every individual must accept within their personal individual lives. The state cannot refuse pension rights to a cross-dresser for example, but no citizen can be forced to hire one in an office if he does not want to.

The same with religious rights. If two consenting parties want to have their lives governed by particular religious creeds, that is their choice as long as there is no coercion. But when one party demands the protection of public law, as Ms. Bruker did in asking for a contractual obligation, then they are to be protected by the state in the same manner as the state protects the citizens it serves against discrimination in sexual preferences.

But in neither case must the state elevate demands for religious recognition of sexual particularities on the one hand, nor protect religious particularities from the protection of public law on the other. To demand that the state enforce same-sex marriage equality, as opposed to civil union equity, implicitly ranks sexual preference on a par with the classic freedoms of constitutional liberalism, namely those of thought, expression and assembly. As a proposition it is simply perverse and nothing but transparent political pandering. The same is true of asking our public law to exclude religious traditions from the protection of contract law, one of the keystones of the rule of law.

A basic building block of western liberalism is the notion, best expressed by James Madison, that “the civil administration should take no cognizance of religion.” The separation of church and state must be absolute. Government should not be involved in validating an estate of religion. The French “modèle républican”, with all its faults, could be considered a standard.

The only role for the state in a union between any two people is strictly to interpret the “contract” between them and the rights flowing from that. The basis of contract law as the fundamental construct for the interpretation of relations between governors and governed has been primordial since Magna Carta. “Marriage” is a concept of faith and any demands by citizens to bring such faith-based estates to an equal level in law should be considered illegitimate.

Post-war progressive legal traditions in the west were actually in the process of rolling back the state’s role in “marriage” until the wave of politically correct attitudes of the past decade. Gay rights and religious rights taken this far, as other demands for collective rights, do damage to the development of a society based on constitutional liberty and create what Fareed Zakaria has called “illiberal democracy”.

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I find this article interesting due to the rights aspect, on groups vS individual rights, not marriage or religion.

I think this article could be transfered for many other issues just as easily. I believe we are starting to have rights on tiers and compliance is subjected to gov't or media perception, courts, etc.
Individual rights should be superior then group rights; in my opinion. That way there is no way to allow opinions or "group think" to take away anyones rights.

Do you agree or not?

[WestViking]

There are no group rights in Canada. The Charter protects individual rights and freedoms. The Canadian Human Rights Act protects individuals, not the groups they may belong to. The HRCs are misinterpreting the law when they hold that statements of opinion may subject some members of a group to ridicule. Unless a complainant can show that there is real and present danger to an individual, a specific person, a respondent cannot be held as having committed an infraction of the law. <a href=http://www.canlii.org/en/sk/skca/doc/2006/2006skca41/2006skca41.pdf>Owens vs Saskatchewan</a> is a startling precedent. I strongly suggest that members download and read it.

[maxjones0]

What is this "Charter" thing? Is that the thing they wrote in 1980 or so? And who wrote it by the way? And where did this historic event take place? And where is my copy of the Charter of Rights and Freedoms? I've never received one, never even seen one. How does it start? "We the people...?" or what? I have no clue. Can't be much of a document of any great significance if it has no greatness associated with it. The Charter must be a bland government document meant for bureaucrats. If was meant for me, I would have received a copy by now. Most Americans by comparison know all about their constitution by the time the hit puberty. They even have large parts of the actual document memorized.
Ours was likely written by (bilingual) government lawyers. I don't really remember anybody I know saying we need to replace the system that was already in place back in 1980. It was a made up agenda for reasons i have never really understood.

[TomFoolery]

What is this "Charter" thing? Is that the thing they wrote in 1980 or so? And who wrote it by the way? And where did this historic event take place? And where is my copy of the Charter of Rights and Freedoms? I've never received one, never even seen one. How does it start? "We the people...?" or what? I have no clue. Can't be much of a document of any great significance if it has no greatness associated with it. The Charter must be a bland government document meant for bureaucrats. If was meant for me, I would have received a copy by now. Most Americans by comparison know all about their constitution by the time the hit puberty. They even have large parts of the actual document memorized.
Ours was likely written by (bilingual) government lawyers. I don't really remember anybody I know saying we need to replace the system that was already in place back in 1980. It was a made up agenda for reasons i have never really understood.

A document by the Elite, for the Elite, and exercised by the appropriations of authority from you, I, and everyone else alive at the time.

The lawyers and lawyer politicians who drew it up were IMO operating against their professional code prohibiting acting in a conflict of interest.

Its time the likes of Peter Lougheed came clean on this.

[westcoast woman]

I seem to remember that Rafe Mair, a talk show
host in B.C. and a former lawyer, said on his
show something to the effect that the new
Charter would make the lawyers rich. It
certainly has made them busy.

[WestViking]

What is this "Charter" thing? Is that the thing they wrote in 1980 or so? And who wrote it by the way? And where did this historic event take place? And where is my copy of the Charter of Rights and Freedoms? I've never received one, never even seen one. How does it start? "We the people...?" or what? I have no clue. Can't be much of a document of any great significance if it has no greatness associated with it. The Charter must be a bland government document meant for bureaucrats. If was meant for me, I would have received a copy by now. Most Americans by comparison know all about their constitution by the time the hit puberty. They even have large parts of the actual document memorized.
Ours was likely written by (bilingual) government lawyers. I don't really remember anybody I know saying we need to replace the system that was already in place back in 1980. It was a made up agenda for reasons i have never really understood.

The 'charter thing' was incorporated into our constitution in 1982 when we finally took our constitution out of the control of the British Privy Council.

You must have misplaced your copy, but fortunately you can view a copy here:
http://laws.justice.gc.ca/en/charter/index.html

Our constitution is readily available and readable. You can obtain a copy here:
http://laws.justice.gc.ca/en/const/PRINT_E.pdf

This annotated copy will give you the background on development of our constitution to date.

[maxjones0]

What is this "Charter" thing? Is that the thing they wrote in 1980 or so? And who wrote it by the way? And where did this historic event take place? And where is my copy of the Charter of Rights and Freedoms? I've never received one, never even seen one. How does it start? "We the people...?" or what? I have no clue. Can't be much of a document of any great significance if it has no greatness associated with it. The Charter must be a bland government document meant for bureaucrats. If was meant for me, I would have received a copy by now. Most Americans by comparison know all about their constitution by the time the hit puberty. They even have large parts of the actual document memorized.
Ours was likely written by (bilingual) government lawyers. I don't really remember anybody I know saying we need to replace the system that was already in place back in 1980. It was a made up agenda for reasons i have never really understood.

The 'charter thing' was incorporated into our constitution in 1982 when we finally took our constitution out of the control of the British Privy Council.

You must have misplaced your copy, but fortunately you can view a copy here:
http://laws.justice.gc.ca/en/charter/index.html

Our constitution is readily available and readable. You can obtain a copy here:
http://laws.justice.gc.ca/en/const/PRINT_E.pdf

This annotated copy will give you the background on development of our constitution to date.

1982? You mean I missed the 25th Anniversary Celebrations of the ratifying of our Charter of Rights and Freedoms? Damn , if I had know this 13 days ago, I could have had my own 25th party. I know I do not watch much Canadian news but if there were any celebrations, they must have been hard to find.

Let me just skip to the end of my logic. Although lawyers are well schooled on political subjects and are also talented in ways that make them seemingly ideal politicians and organizers of society, it might be smarter to have economists leading us rather than lawyers. Lawyers might be the primary source of guidance for an economist who is a politician but I posit that the legal profession is bias towards more regulation.

This is because the legal system deals in everybody's dirty laundry all day every day(and into the late evenings for lawyers, after everyone else has gone home). It only makes sense that if you ask a person employed in such a way what needs to be done, they will say "From what I see everyday, people do not get along very well. We should probably have a new law that says ..."

Maybe a Milton Friedman type of economist would be better at promoting liberty than a lawyer. Only two facts are needed to be accepted for the economist to govern well:

1. Every person in the world follows their own personal interest
2. Governments are spending someone else's money on someone else, which is never as wisely done as when spending your own money on yourself.

There sure seem to be lots of people in the legal profession who are happy with our loss of freedoms. In fact, they designed and orchestrated it. It is amazing that so many smart people can be so short sited and that their intellectual elders in the profession let things get so far out of hand.

[TomFoolery]

It is the "some are more equal than others" and the collectivist enumeration of "Classes of Persons" clause that boils my sense right.

Every single person has attributes of ALL those enumerations. So all that happened is that the self-Conception of the Canadian has shifted from being "an individual" (and viewing others likewise, generally) to Class Warfare in the courts.

[Rohan01]

Suggestions that lead to the CHRC being put in its place.

The floor is now open:

[Kate Shaw]

I will believe you mean it when the next All Adult private business opens without a shriek of ANTI FAMILY! ANTI CHILD! going up to the highest heavens...or when the first Smoking Airline, Smoking Bar or Smoking Anything opens for business without somebody suing to have it immediately closed down -- on the basis that nobody has any right to dictate who will and will not be allowed on his or her private premises or to structure his or her business according to personal preference -- in some matter that does not involve sexual intercourse.

Until then, the default premise is that ONLY Group Rights exist in Canada.

[Grig]

The Bruker case involved a contractual promise signed by Bruker’s ex-husband to grant her a Jewish divorce, a “Get”, in the event of a marriage breakdown. Her ex decided to renege on the written promise claiming that this was a religious matter and freedom of religion superceded contractual obligations. The Supreme Court said no. It upheld contractual obligations, the foundation of the rule of law, and said that freedom of religion was a personal matter and could not overrule, nor be imposed on, secular societal norms.

I wish that was the case, but it was not. The court instead claimed the authority to order people (and churches) to violate their conscience if they feel the 'public consequences' of doing so would be good enough in their opinion. A VERY dangerous precedent.

From the Globe and Mail story:
http://www.freedominion.ca/phpBB2//view ... 9e08411bf6

Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "take into account the particular religion, the particular religious right, and the particular personal and public consequences — including the religious consequences — of enforcing that right."

[Grig]

The Bruker case involved a contractual promise signed by Bruker’s ex-husband to grant her a Jewish divorce, a “Get”, in the event of a marriage breakdown. Her ex decided to renege on the written promise claiming that this was a religious matter and freedom of religion superceded contractual obligations. The Supreme Court said no. It upheld contractual obligations, the foundation of the rule of law, and said that freedom of religion was a personal matter and could not overrule, nor be imposed on, secular societal norms.

I wish that was the case, but it was not. The court instead claimed the authority to order people (and churches) to violate their conscience if they feel the 'public consequences' of doing so would be good enough in their opinion. A VERY dangerous precedent.

From the Globe and Mail story:
http://www.freedominion.ca/phpBB2//view ... 9e08411bf6

Writing for the majority, Madam Justice Rosalie Abella said that courts are empowered to referee religious disputes provided they "take into account the particular religion, the particular religious right, and the particular personal and public consequences — including the religious consequences — of enforcing that right."

I found the ruleing online at

http://csc.lexum.umontreal.ca/en/2007/2 ... scc54.html

A fuller quote says:

In deciding cases involving freedom of religion, the courts cannot ignore religion. To determine whether a particular claim to freedom of religion is entitled to protection, a court must take into account the particular religion, the particular religious right, and the particular personal and public consequences, including the religious consequences, of enforcing that right.

In other words, freedom of religion only applies if they want it to apply.

[TomFoolery]

Lets assume that a community of Muslims voluntarily contracts themselves to Sharia Law. (fine with me provided they keep it in their borders)

The next event is perhaps a violation of the "code" and punishment requires a public stoning. Should the person who consented in contract to be governed by Sharia be stoned ?

OK - no dumb jokes about all the ways they can get stoned.

[Grig]

Lets assume that a community of Muslims voluntarily contracts themselves to Sharia Law. (fine with me provided they keep it in their borders)

The next event is perhaps a violation of the "code" and punishment requires a public stoning. Should the person who consented in contract to be governed by Sharia be stoned ?

OK - no dumb jokes about all the ways they can get stoned.

Freedom of religion is only legitimately limited by the basic human rights of others, not by the whim of a judge on what they think is right or nice. Stoning people to death or human sacrifices are not protected by freedom of religion.

In this case the court should have just said it is a valid contract and enforced the terms of it without creating a precedent that says judges and set freedom of religion aside if they personally feel like it.

[Kate Shaw]

But in point of fact, judges in Canada can set ANY law aside if they feel like it, and they frequently do.