Judges with Bibles

With his recent judicial appointments, Prime Minister Stephen Harper is once again showing his true colours. He has appointed several judges with some seriously socially conservative backgrounds.

Now, I don’t want to get into the credentials and alleged political biases of the particular individuals Harper appointed. Instead, I want to address a broader debate that the appointments have stirred up — whether Harper is just putting some balance back in the courts, a corrective to decades of left-leaning, Charter-wielding judges appointed by the Liberals.

A matter of balance? Well, balance is a good thing, when it comes to justice.

Let’s think about it, working with a hypothetical, so as not to interpret or misrepresent the views of anyone in particular. Imagine the following appointment: a religious social conservative who opposes abortion and same-sex marriage. In fact, he or she sees abortion and homosexuality as sins. Let’s say that he or she is a critic of the Charter Of Rights And Freedoms, and doesn’t think that judges should be interpreting the equality rights of the Charter to protect gay and lesbian folks.

Obviously, gay and lesbians folks aren’t going to like this appointment. It’s against our interests. Socially conservative folks are going to like this appointment, call it a matter of balance.

Here’s the problem. Our hypothetical judge opposes the law. He or she is against abortion, which is legal in Canada. He or she is against same sex-marriage. That, too, is legal in Canada, though rather more controversial.

But our judge is also against homosexuality in general. It is, in his or her view, a sin. That’s a non-negotiable belief: if you think it’s a sin, then you pretty much have to be against it. You are not going to want to have law protecting the sin and the sinner. You aren’t going to much like the decriminalization of sodomy (Canada did that in 1968) nor laws against discriminating against gay men and lesbians (that’s been in place since the 1980s), to say nothing of same-sex marriage.

So our hypothetical judge is a person who opposes, for deeply religious reasons, basic principles and rights of Canadian law. As a religious social conservative, our hypothetical judge is a person who believes his or her religious values should be brought to bear on the law.

Is this balance or the undermining of the rule of secular law?

There are lots of different views that judges might take on difficult constitutional questions, like whether the Charter really does protect same-sex marriage, aboriginal fishing rights or funded healthcare. Judges can disagree on the question of how broadly or narrowly they should interpret Charter rights, and how much deference they should extend to the legislature. These are hard questions about which reasonable people can and do disagree.

But our hypothetical judge is about more than this. He or she wants to interpret our law through the lens of their conservative religious beliefs. That’s not balance. That’s a violation of the basic principles of secularism that inform our law. That is a commitment to undermining not only abortion rights and gay and lesbian rights, but also a secular rule of law.

I fully realize that Harper is going to appoint judges with whom I don’t agree, just like he is going to try to pass laws I don’t like. He’s the prime minister; he gets to do that kind of stuff.

But there is a big difference between judges with conservative leanings who may be more deferential to legislatures, and those who seek to impose their religious beliefs on all Canadians. We should be able to expect a basic commitment to a secular rule of law. No amount of ranting about balance should change that. We need judges who are committed to a secular democracy, not a religious state.

If Harper’s appointments are just a little conservative in bent, well, unfortunately, that is balance. But if they are set on using the Bible to interpret the Constitution, then we should all be up in arms.