The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
When Mr William Whatcott – fired up by a queer religious fervor – distributed several flyers to the public of Saskatchewan in Canada in a campaign against what he clearly believes to be the abomination of same-sex love, he must have thought that his right to freedom of religion would trump the right of others to have their human dignity respected and protected.
Mr Whatcott’s pamphlets railed against “sodomites” who “want to share their filth and propaganda with Saskatchewan’s children!” (Mr Whatcott seems to have a rather morbid obsession with anal sex, children and exclamation marks – a rather odd combination, methinks.) In one pamphlet he claimed that “sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children!” In another that: “The Bible is clear that homosexuality is an abomination… Sodom and Gomorrah was given over completely to homosexual perversion and as a result destroyed by God’s wrath!” (Judging from these statements, poor Mr Whatcott labours under the misapprehension that only same-sex couples indulge in the delights of sodomy.)
The Saskatchewan Human Rights Commission found these pamphlets to be in breach of the prohibition on hate speech contained in the Saskatchewan Human Rights Code. Mr. Whatcott – seemingly not a man to take such a ruling lying down, so to speak – appealed all the way to the Canadian Supreme Court, arguing that to the extent that the Saskatchewan Human Rights Code prohibition on hate speech precludes criticism of same-sex conduct or activity, it infringes on the right to freedom of religion. He argued that sexual conduct has long been a topic of religious discussion and debate, and that:
[o]bjection to same-sex sexual activity is common among religious people. They object because they believe this conduct is harmful; and many religious people also believe that they are obligated to do good and warn others of the danger.
The Canadian Supreme Court, in Whatcott v Saskatchewan Human Rights Commission, rejected these arguments, affirming the principle that the legislature could impose hate speech codes that limited the freedom of expression and the right to religious freedom of even those with strongly and sincerely held religious beliefs – if this was done in order to protect others from serious harm.
In a judgment that would alarm fundamentalist Christian preachers across South Africa (the delights or horrors – as the case may be – of same-sex sodomy being their bread and butter, so to speak) the Canadian Supreme Court affirmed the principle – also applicable in South Africa – that hate speech should be judged objectively with reference to the effects of the speech and not subjectively with reference to the feelings of those targeted by the speech.
Courts should ask whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”. In the course of this assessment, a judge or adjudicator is expected to put his or her personal views aside and to base the determination on what he or she perceives to be the rational views of an informed member of society, viewing the matter realistically and practically.
The Canadian Court stressed the narrow application of hate speech prohibitions. Unlike the South African Equality Act – which prohibits speech that can reasonably be construed as having the intention to be hurtful – more serious harm is required in the Canadian hate speech regime before speech would be deemed unlawful. It was only when the effects of the speech would cause “detestation” and “vilification” that the speech could be prohibited.
Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimise them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims…. The act of vilifying a person or group connotes accusing them of disgusting characteristics, inherent deficiencies or immoral propensities which are too vile in nature to be shared by the person who vilifies.
The Canadian Supreme Court also warned against the use of hate speech provisions to limit legitimate forms of expression:
Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have.
In South Africa, people have a tendency wrongly to invoke the hate speech provision in the Equality Act whenever somebody they do not like (or who they fear) says nasty things about them or about the group they belong to. (The Equality Act itself also draws the hate speech net far too wide and is probably unconstitutional as a result.)
So, for example, if I were to say that pastor Errol Naidoo is a smarmy homophobe, somebody will inevitably claim that I am making myself guilty of hate speech, when all I am doing is expressing my opinion about the behaviour and attitudes of a public figure whose obsession with sodomy and sex I find rather queer. Similarly, if somebody complains about the racism of a fellow South African he or she will often be vilified for indulging in so called “hate speech” when all he or she is doing is challenging the prejudices of a fellow citizen.
It is intellectually lazy to invoke the spectre of hate speech every time somebody says something you find objectionable or hurtful. Often people do so because they are incapable of pointing out why the objectionable statements are factually wrong or morally reprehensible. Often they cry “hate speech” because of an irrational fear born out of their own prejudices, instead out of a concern for the harmful effects of truly hateful speech that is aimed at stopping an argument.
For example, it would be easy to report pastor Errol Naidoo to the Equality Court for regularly indulging in hate speech against gay men and lesbians. It would take a bit more work to develop an argument pointing out the inherent contradiction between his expressed fear and hatred of consensual same-sex love and his purported endorsement of Christian doctrine regarding the all-encompassing and healing love of God. An effective challenge to the good pastor’s reasoning would require some engagement with the perverted morality that underlies the promotion of discrimination and hatred under the guise of spreading love and compassion. You would have to show that it is not very rational to say: I love you so much that I would like to ensure that you continue to be vilified and discriminated against.
I would also have to show that, psychologically, the pastor’s obsession with anal sex would suggest that he is fascinated, maybe even entranced – rather than repelled – by the notion of sodomy. That would take some intellectual work. It would also be more fun than making legal arguments before a magistrate.
Moreover, I am personally rather skeptical of the strategic wisdom of using hate speech laws to try and stop uncomfortable or unpopular speech. I, for one, will not be approaching the Equality Court to prevent fundamentalist preachers from railing against “sodomites”. I always draw attention to such speech because I believe those who are so obsessed with the sexual acts of others do themselves and their arguments no favours. It always strikes me that their prurient and seemingly lustful focus on what other consensual adults do in the privacy of their own homes is more sad than harmful as it reflects badly on their own character – not on the character of those they aim to vilify.
But although I will not rush to the Equality Court in the wake of the Canadian Supreme Court judgment, the principle established in it that even religiously inspired hate speech remain hate speech, is timely. It reminds us that religiously inspired hatred remains hatred and its stench cannot be perfumed away by waiving about quotes from the scriptures. Hopefully the South African courts will follow this example when they are confronted with the same problem in future.BACK TO TOP