On April 13, the Court of Appeal for Saskatchewan also did the right thing. A three-judge panel unanimously told a group of gay activists
that a newspaper ad expressing dislike for homo sex was legal. But sadly, we yet again have a decision
that allows free speech only in the very specific context of a different decade.
But first, the 411: A git named Hugh Owens
bought an ad in the June 30, 1997 Saskatoon StarPhoenix,
in direct response to all the positive Pride stuff he was being forced to see and read that same month. Owens' ad featured references to various homos-are-bad Bible passages, and two male stick figures holding hands, with a line through them (for "no gays").
Is this hate? Is this hate illegal? Is it acceptable hate because of its religious basis?
A human rights panel, and then a Saskatchewan court, both declared the ad to be illegal. Owens was ordered to pay $1,500 to each of the three (presumably) queer complainants.
But the appeals judges decided otherwise last month.
From the ruling (written by Justice Bob Richards): "Part of the context which must inform the meaning of Mr. Owens' advertisement is the long history of discrimination against gay, lesbian, bisexual and trans-identified people in this country and elsewhere.... At the same time, it is significant that the advertisement in issue here was published in 1997 and, thus, in the middle of an ongoing national debate about how Canadian legal and constitutional regimes should or should not accommodate sexual identities." "Sexual orientation" was added to The Saskatchewan Human Rights Code four years earlier. And two years before the ad, the Supreme Court of Canada had agreed on "sexual orientation," too.
"Parliament would not pass legislation to make government programs and benefits available on an equal basis to gay and lesbian couples until three years after the advertisement appeared." And same-sex marriage was nowhere. "[I]t is important to consider Mr. Owens' advertisement in the context of the time and circumstances in which it was published. That environment featured an active debate and discussion about the place of sexual identity in Canadian society. Indeed, the advertisement at issue here was published in connection with gay pride week – an event promoted by the gay community as a celebration of diversity and used in part as a platform for the advancement of gay rights. Seen in this broader context, Mr. Owens' advertisement tends to take on the character of a position advanced in a continuing public policy debate rather than the character of a message of hatred or ill will."
Ironically, under this logic, the more secure gay men and lesbians become in Canadian society, the more easy it will be for us to cope with hatred, the less legally acceptable it will be to diss homos.
And, while gays considered that the Pride timing was particularly offensive, the justices see this as making the message particularly relevant. It's a fascinating exercise, to see the world from another viewpoint.
The ad is "jarring," yes. But does it "involve extreme feelings and strong emotions of detestation, calumny and vilification"? Cuz that's what the law requires.
"For his part, Mr. Owens says the advertisement simply means 'God says no to the behaviour of homosexuality' and, as a result, he submits there was no violation."
The gay complainants "expressed the anger, hurt and frustration caused to them by the message in the advertisement. [One man] believed the advertisement gave licence to people who wanted to discriminate against gay men and a licence to people who were inclined to harass or assault gay men. [Another] said the overall message he received from the ad was that 'God instructs us that intimacy between two people of the same gender is inappropriate or some type of religious crime and those who engage in such acts should be put to death.'"
Certainly Owens believes gay sex is a sin. The ad directs readers to the Bible: Romans 1:26
(which mentions carpet munchers, I'm pleased to say -- why should the boys get all the attention?), Leviticus 18:22
, Leviticus 20:13
, and 1 Corinthians 6:9-10,
all of them stating that homosexualists are very naughty, indeed. (Most notable is the grand old cliché of the Holy Book: "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death.")
So. Is a listing of Biblical passages considered hate speech? The Good Book is actually full of messages, many of them contradictory, from kill-the-homos to love-thy-neighbour. In fact, notes the ruling, "love, tolerance and forgiveness" are its key concepts.
The judge actually works up a way of ensuring that the Bible is not considered hate propaganda: "[The] objective reader of Mr. Owens’ advertisement would see it in the context of the other concepts popularly understood as flowing from the Bible.... A second point concerning the Bible passages cited by Mr. Owens is that an objective observer would understand that their meaning and relevance for contemporary society can and would be assessed in a variety of ways." For example, gay sex is like adultery -- a sin, but... whatever, eh.
"The fact that the passages referred to in the advertisement can be seen in such a variety of ways makes them significantly different than the hypothetical present day message referred to above, i.e. a message that 'Homosexuals should be killed.'"
Next, the hand-holding stickmen with the line through them. "They are not," writes the justice, "depicted in a way which suggests undesirable characteristics such as dangerousness, untrustworthiness, lack of cleanliness, dishonesty or deceit. They are presented in a neutral and straightforward fashion."
"Accordingly, in my view, the [Human Rights] Board of Inquiry properly concluded that the not permitted symbol 'may itself not communicate hatred.' [...]
"Indeed, the stickmen element of the advertisement can be seen as understating the literal meaning of the most extreme parts of the Bible text in that it suggests certain kinds of activity are not allowed rather than suggesting that gay men should be killed."
So, the ad is not hate speech. At least, it wasn't back then, in '97. Today? I guess someone would need to file a human rights complaint, then fight through the courts for a few years, to find out.