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Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties

The advance of progressive ideology is leading to the retreat of religious freedom in Canada. Last year, the Supreme Court of Canada ruled that Trinity Western University, a Christian institution in British Columbia, could be denied accreditation of its law school simply because students would be required to live according to Christian sexual morality (i.e., sex permitted only within a heterosexual marriage). This was seen as a “no gays allowed” rule and such apparent bigotry could not be permitted in a Canadian law school.

Another new restriction on religious liberty has been since approved by a court in Ontario. On May 15, 2019, the Court of Appeal for Ontario (the province’s highest court) released its decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario. This decision denied Christian physicians the right to avoid complicity in medical procedures that violate Christian ethical principles.

Until quite recently, strict sexual behavior rules for students of private religious universities and a physician’s right to avoid practices he or she considered to be unethical were relatively uncontroversial. However, as progressive ideology becomes more dominant, especially within the legal community, it becomes correspondingly intolerant. People who live according to historic Christian principles are becoming virtual outcasts in some situations.

“Human Rights” v. Christian Doctors

The Christian Medical and Dental Society case came about as a result of changes in policies regulating the medical profession in Ontario.

The College of Physicians and Surgeons of Ontario (CPSO) is the state-mandated regulatory body for the medical profession in the province of Ontario, Canada. It acts as an agent of the state in regulating doctors. In 2015, the CPSO revised its policy entitled “Professional Obligations and Human Rights.” This document explains the expectations for physicians who refuse to provide certain medical services for moral and religious reasons. Among these services would be controversial practices such as abortion.

Although doctors are not required to perform the medical services themselves, they are required to make an “effective referral” for their patients to ensure that those patients receive the desired service. In short, an “effective referral” would involve the physician in actively helping the patients to receive the service.

Also in 2015, the Supreme Court of Canada struck down certain Criminal Code prohibitions on assisted suicide. As a result, the CPSO adopted a policy called “Medical Assistance in Dying” commonly referred to as the “MAiD policy.” It too required doctors who opposed MAiD to provide an “effective referral” to ensure that a patient who desired such assistance could be killed in a timely fashion.

Since many doctors were not comfortable with these policies, the Christian Medical & Dental Society of Canada (CMDS) along with some individual physicians and a couple of other pro-life medical organizations challenged the “effective referral” policies in court. When they lost at the lower court level, they appealed to the Court of Appeal for Ontario.

Forcing Doctors to Violate Their Consciences

The position of the Christian doctors is briefly and accurately summarized by the court as follows: “they all have a sincere religious belief that human life is sacred, that abortion and MAiD are sinful, and that complicity in either practice, in the manner required by the Policies, is equally sinful.” In short, they believe the CPSO’s policies compel them to be complicit in medical procedures that violate their religious beliefs. For these doctors, “providing a patient with an effective referral to a physician who provides MAiD or an abortion would be the same as performing the medical procedures themselves. It would make them complicit and would be sinful.” In their view, “the act of referral is a form of direct cooperation in the act which makes the physician complicit.”

Because the effective referral policy would require Christian doctors to act contrary to their sincerely held beliefs, the CMDS argued that the CPSO’s policies violate section 2(a) of the Canadian Charter of Rights and Freedoms which guarantees “freedom of religion and conscience.”

As an alternative to the effective referral requirement, the CMDS proposed a “generalized information” process where doctors could provide patients with information about resources that enable the patients to locate other doctors who would be willing to provide the services they desire. As the court noted, “The ‘generalized information’ model places the burden on the patient to self-refer to find a physician who will provide the health care they seek.”

In short, the policies imposed by the CPSO place the burden of accessing the controverted medical services on the unwilling doctor, whereas the proposal offered by the CMDS places the burden on the patient. In the latter case, the doctor is not directly cooperating in obtaining an immoral medical procedure.

Limiting Religious Freedom

The court agreed with the CMDS that the CPSO policies did, in fact, violate the physicians’ section 2(a) freedom of religion. However, section 1 of the Charter states that its guaranteed rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Under this provision, the court determined that “effective referral” policies are “reasonable limits” on the physicians’ freedom of religion.

The policies do not seem so reasonable to some of the Christian doctors, however. They indicated that they would need to leave Ontario or discontinue their medical practices to avoid violating their deeply-held religious beliefs. In the court’s view, such drastic courses of action were not necessary. Instead, the doctors could simply change their area of specialization.

As examples, the court referred favorably to the testimony of a Medical Adviser for the CPSO who indicated “areas of medicine in which physicians are unlikely to encounter requests for referrals for MAiD or reproductive health concerns, and which may not require specialty retraining or certification: sleep medicine, hair restoration, sport and exercise medicine, hernia repair, skin disorders for general practitioners, obesity medicine, aviation examinations, travel medicine, and practice as a medical officer of health.”

Love It or Leave It

The court’s solution, in other words, is for conscientious Christian doctors to avoid all areas of medicine where they could be asked for one of the controversial referrals. Among other things, this would mean no more Christian family doctors. When it comes to a medical specialty that may involve effective referrals, the court’s message to doctors is, “love it or leave it.” Any who would opt to change to a specialty not listed by the CPSO’s Medical Advisor would likely face years of retraining.

As the court explained, the Christian doctors “have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests.”

In our secular, progressive society, abortion and medical assistance in dying are deemed by the state to be in the public interest. Physicians who oppose those practices are therefore in conflict with the public interest and must put their own views to the side. Who needs a doctor guided by strong ethical considerations, anyway? Especially in a publicly-funded medical system like Canada’s, perhaps it’s better for medical professionals to see themselves as technicians who carry out the policies of the progressive state. Good riddance to those “anti-choice” doctors (who, by the way, were denied the right to make their own choice on these vital matters).

Increasing Adversity

Religious liberties that were taken for granted just a few years ago are now being increasingly restricted. So-called “progressive” thinking on matters of human sexuality and end-of-life issues is becoming dominant in Canada, and people who dissent from this new way of thinking no longer “fit.” Medical professionals are being put into particularly difficult situations where their livelihoods are threatened by the imposition of progressive ideology. It’s probably only a matter of time before other occupations experience the same type of adversity. Even if this matter were to reach the Supreme Court of Canada, that court’s 2018 Trinity Western University decision offers little hope for those seeking religious freedom protections in an era of progressive hegemony.

Reader Discussion

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on June 05, 2019 at 10:52:32 am

This article about the growing threat to religious freedom in Canada is based on a very questionable assumption, namely, that religious freedom allows persons/groups to disobey with impunity valid secular laws that indirectly burden their exercise of religion. In America, at least, historically and currently (according to the Supreme Court), that is not what religious freedom meant or means. Rather, in America religious freedom has traditionally meant freedom from laws whose PRIMARY purpose or effect is to advance or harm religion or any particular religious belief or practice. If religious freedom means what the author of this article assumes that it means, then it is always going to be under threat, because it is the subjective and changing objections of private individuals/groups--not the intention of the government--that determines whether religious freedom is being violated by a law. Thus, we now have an epidemic of measles in America because many parents think that religious freedom gives them a moral or legal right not to have their children vaccinated.

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Ellis West
on June 05, 2019 at 10:56:30 am

[…] Source: Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties […]

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Image of Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties – The left wants to bring this to America and they will succeed unless we fight it. – Melvin Charles McDowell, Member of PA Republican State Committee, Representin
Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties – The left wants to bring this to America and they will succeed unless we fight it. – Melvin Charles McDowell, Member of PA Republican State Committee, Representin
on June 05, 2019 at 12:24:46 pm

The author makes it clear that the threat to Religious Liberty is the direct result of a progressive ideology that has demonstrated it’s intention is to refuse to tolerate that which affirms the Sacredness of human life, and In fact, coerce those who affirm the Sacredness of human life, and thus affirm the inherent Dignity of being a beloved son or daughter, into violating their Faith and morals.

When you consider the age of Paganism, progressive ideology has come full circle; I suppose there is nothing new about recycled “progressive” ideology after all.
https://www.lawliberty.org/liberty-forum/freedom-of-the-church/

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Nancy
on June 05, 2019 at 12:46:12 pm

I think you are conflating the special case of freedom of or from religion with the fundamental case of liberty of conscience. While conscience is often informed by religion, liberty of conscience is often, perhaps more often, informed by philosophical considerations common to many religions but not particular to any religion like "first, do no harm." It also includes idiosyncratic or prudential risk balancing by individuals.

Liberty of conscience is a fundamental principle dating back to the Reformation that was fully adopted by the Enlightenment.

Your vaccination argument is cute but unsubtle. Mandatory vaccination laws may impose civil penalties like fines and barring children from enrollment in schools but the threat must be on the order of a small pox outbreak.

Extending this to refusal to provide a referral to an abortionist or a specialist in euthanasia is bizarre. It's easy to imagine that the notion of toxic masculinity may well someday prompt well meaning state or provincial authorities to require that all males be medicated for the problem as a condition of attending schools and the like.

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EK
on June 05, 2019 at 14:28:32 pm

Your reply is not convincing for the following reasons: (1) your article uses the phrase "freedom of religion" and does not distinguish that from "liberty of conscience;" (2) although I cannot speak about Canada, throughout American history until quite recently "liberty of conscience" was just another term for "religious freedom;" (3) expanding liberty of conscience to include non-religious reasons for wanting to be exempt from laws makes it even more likely that so-called threats to liberty of conscience will increase even more, because "conscience" is so open-ended; and (4) your position that some conscience-based exemptions are required and others are not raises the question, is there a principled (non-arbitrary) way of distinguishing between the two?

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Ellis West
on June 05, 2019 at 18:53:52 pm

You would not allow a private university to require your daughter to live according to a Muslim or Buddhist or Vegan morality, and yet you think it's OK for your Christian morality to be forced on others?

The individual chooses their morality, not the parent or spouses or church or school or employer or government. You don't lose your right to live by your moral code because you choose to go to school, or get a job, or live in society, etc. For instance, a licensed doctor doesn't lose the right not to perform abortions because they practice medicine--whether alone or in a building with other doctors.

The government can only require that you obey the law, not require that you practice another's moral code.

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Duckworth
on June 05, 2019 at 20:40:54 pm

There doesn't need to be a distinguishing. You don't want o be compelled to engage in activity or speech, case closed. The client or customer simply goes somewhere else. Forget religious liberty, etc. What if a non-religous person's objections?

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anony
on June 05, 2019 at 20:42:01 pm

There doesn't need to be a distinguishing. You don't want to be compelled to engage in a specific activity or speech, then it should be case closed. The client or customer simply goes somewhere else. Forget religious liberty, etc. What if a non-religious person has objections?

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anony
on June 05, 2019 at 20:46:14 pm

If it's private, they set the standards, which causes ZERO problems...since you're not FORCED to attend their in the first place. How is Christian(or any) morality forced when no one is being forced to attend any university in the first place??? You don't like it, you simply attend somewhere else. They have their freedoms, you have yours. Simply not complicated in any way.

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anony
on June 06, 2019 at 00:24:20 am

A private school or workplace is not a law-free zone. There lots of things your school or employer can't do--like discriminate against you, physically assault you, steal from you, make you work for no wages, stop you from voting, spy on you in the rest room, and so on. Not violating your constitutional rights is even more important than not violating your physical integrity.

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lucky 13 amendment
on June 06, 2019 at 06:53:12 am

Difficult case.

1. In his Commentaries on the Laws of England (1765–1769), Sir William Blackstone acknowledged that it was already common law that “if an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.”

Prof. Charles Burdick (1911) described the duty of the “inn-keeper, or other victualler” of which Blackstone spoke as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.” The act of entering into a given profession causes members of the public to alter their behavior in reliance on this fact—and to then withhold the services proffered would lead people into detrimental reliance.

Arguably this view underlies the US’s 1964 Civil Rights Act, which imposes a duty on employers, landlords, and providers of public accommodations to refrain from discriminating on the basis of certain suspect categories—regardless of the employer’s/landlord’s/provider’s sincere religious beliefs to the contrary.

2. Similarly, many jurisdictions impose mandatory reporting requirements on members of certain professions whereby they must report evidence of certain crimes (e.g., child abuse and neglect) to the police. Jurisdictions vary in the extent to which they recognize a religious exception to this obligation.

3. This specific case is complicated by the fact that Canada has a publicly funded health care system (which is further complicated by the fact that private clinics operate, and even compete with, that system, even though their legal status is dubious). Generally he who pays the piper calls the tune—so if government is paying the bills, government gets to specify the services it wants people to provide. I sense the Ontario court decision applies to private as well as publicly funded physicians, but couldn’t really be sure.

4. This case is somewhat analogous to the US case of Zubik v. Burwell wherein some employers cited religious objections to providing to employees insurance that included contraceptive coverage--and to the accommodation of notifying government when they had a religious objection. The plaintiffs regarded the mere act of stating their objection as implicating themselves in wrongful activities. The US Supreme Court remanded the case to lower courts to provide the parties with “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”

4. Some long-time readers here may recall that I have proposed amending US civil rights laws to grant greater leeway for dissenters by adopting an affirmative defense—but one element of the defense was to offer a referral.

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nobody.really
on June 06, 2019 at 11:57:29 am

Going back to Jacobson v. Mass. (1905), although he was a Lutheran minister, Jacobson did not assert a religious objection to vaccination but rather asserted his personal autonomy. The court held that the state could over-ride Jacobson's autonomy when the circumstances are such that the state's actions are necessary to protect the general population from grievous harm. In effect, the state is "pressing" or drafting an individual into public service. That is not something to be done lightly.

Further, liberty of conscience has never been only a synonym for freedom of religion in the US.

As "anony" says it also includes 1st Amendment speech and association and 5th Amendment due process of law issues. It is much more than a religion issue.

Still further, the ability of the state to compel an individual to do some action lies in the general police power, which the Supreme Court still insists the federal government lacks.

Canada generally lacks such individual protections against the state. Although the Supreme Court is terrible about enforcing the Bill of Rights against the federal government it always comes down hard on the states on Bill of Rights issues.

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EK
on June 06, 2019 at 13:36:28 pm

Respect for the Sacredness of human life, and thus the inherent Dignity of being, in essence, a beloved son or daughter, is a Christian Truth because it is a Universal Truth that can be known by both our Christian Faith and reason.

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Nancy
on June 06, 2019 at 19:31:22 pm

Your reply is incoherent. A private school isn't breaking the law by having standards restricting certain behavior, particularly religious, even more so when the attendance is completely voluntary. Don't like their views on sex, etc? Simply go to one more to your liking. No one can "violate" anything of yours when you don't(idiotically) go to a school that you know up front restricts behaviors you wish to engage in. it ain't rocket science. And btw, if a consenting adult agreed to be discriminated against, assaulted, stolen from, work for free, have your voting restricted, be spied on in the rest room, and so on, who are you to tell them that can't agree to those things? If two parties were to agree to all that bizarre stuff, why do you take the theocratic route and say they can't do it?

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anony
on June 06, 2019 at 19:39:13 pm

"if he without good reason."
Define "good"-particularly to person in that time period. Who can say? This is actually quite simple-you own the business, you make the call...PERIOD. Whether a bigot or a genuine, sincere person with a disagreement or conviction, all people should have the same level of freedom of association. I can just hear the opponents claiming "illegitimate" reasons, as if anyone but the property owner should determine that.

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anony
on June 06, 2019 at 20:34:40 pm

You articulate a fine policy.

It just happens to be a policy inconsistent with English common law since at least 1769. I realize this is a hard reality for libertarians to hear, which is why I provide the link.

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nobody.really
on June 06, 2019 at 20:45:24 pm

Well, as far as the US, english common law(one for that matter over two centuries ago) is irrelevant. Do I need to mention other practices that were even more prevalent and legal back then? I think you know where I'm going with that...

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anony
on June 06, 2019 at 23:12:58 pm

The Fourth Amendment prevents government schools from filming your children in the locker-room. The thirteenth amendment extends that to private schools, private employers, private landlords, etc.

The first amendment prevents government from censoring you. The thirteenth amendment extends that to private schools, private employers, private landlords, etc.

The ninth amendment (due process clause of the fourteenth amendment) prevents the government from punishing you for inter-racial relationships, same-sex relationships, performing or not performing abortions, consuming recreational drugs, etc. The thirteenth amendment extends that to private schools, private employers, private landlords, etc.

Once we are all equals, you cannot force your morality upon me because i am not rich enough to set up my own school, apartment complex, employment, etc.

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Kennedy
on June 07, 2019 at 00:13:56 am

as far as the US, english common law(one for that matter over two centuries ago) is irrelevant.

"As common law courts, U.S. courts have inherited the principle of stare decisis. American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[27] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants."

[Citations omitted.]

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nobody.really
on June 07, 2019 at 14:40:51 pm

The thirteenth amendment, and for that matter the entire constitution, regulates government actions towards citizens. It has been used to extend constitutional protections from state and local government action against citizens. It does not regulate one citizen's actions towards another citizen except for slaveholding. Your description of the thirteenth amendment is a description of general police powers which belong to the states and not to the federal government under the constitution.
You have no constitutional rights vis-a-vis me nor vice versa.

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Madison
on June 07, 2019 at 15:24:43 pm

First, the 13th Amendment bans slavery. When we speak about how various prohibitions on the FEDERAL government have been extended to apply to OTHER levels of government, we typically talk about the 14th Amendment.

Second, I largely concur with Madison that US Constitution provision mainly addresses the power of GOVERNMENT--and address the power of private actors only residually. Private actors tend to be regulated by federal statutes, state constitutions, and state and local statutes/rules/ordinances. If a private actor invades my privacy, I can sue under tort law or get the state to prosecute under criminal law--but I don't see how the US Constitution would apply. Likewise, most people's jobs are Employment-at-Will. That means that you can quit at any time for any reason or no reason. And likewise, the boss can fire you at any time for any reason or no reason. Civil rights laws now bar most bosses from firing you for a FORBIDDEN reason. But if you boss is a rabid White Sox fan, he can fire you for saying you like the Cubs--and you (probably) have no legal basis for relief.

A word on civil rights: Imagine you planned to travel the world giving a speech and had a debilitating medical condition that needed constant attention. You know a given doctor who has agreed, for a fee, to attend to people under these circumstances. You ask him. He tells you no--because he refuses to work for Jews. Any legal recourse? Not as far as I can see. Civil rights laws tend to prohibit/punish undue discrimination by EMPLOYERS, but not be employees. If you're the one doing the hiring, the person you seek to hire can discriminate to his heart's content. Likewise, would-be tenants could loudly refuse to rent from a nigger, and would-be customers are free to proclaim that they'd never do business at that faggot store. Civil rights laws govern the behavior of LANDLORDS and PROVIDERS OF PUBLIC ACCOMMODATION--but generally not tenants or customers.

In short, contrary to many people's expectations, you should assume that invidious discrimination is legal unless you have a specific cause to think that it isn't. True, many types of discrimination violate NORMS--which may explain why you might flinch to read words such as "nigger" and "faggot." But that's not the same as violating laws.

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nobody. really
on June 07, 2019 at 20:36:17 pm

"...they also make the law,..."
A complete violation of the separation of powers.
Historical documents are not to be interpreted in a way which contradicts the overall meaning-we don't use the minority of a text or source to interpret the majority
"
Jefferson: If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please"

"You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …"

.Joseph Story: "The Constitution of the United States is to receive a reasonable interpretation of its language and its powers,*** keeping in view the objects and purposes for which those powers were conferred."***

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anony
on June 07, 2019 at 21:35:17 pm

It's not the government that can't own slaves, it's YOU who can't own slaves. The thirteenth amendment prohibits YOU from owning slaves or treating people like you own them--as means rather than ends in themselves who can make their own moral decisions.

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Government Slavery
on June 09, 2019 at 12:30:58 pm

It' s ironic that freedom of choice only seems to apply to abortion for the left.

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Steve
on June 10, 2019 at 08:23:36 am

“He said everybody ought to learn to sit down and hate each other with good christian fellowship.” - A Raisin In The Sun

It is ironic that there exists a multitude of persons who claim that in order to not discriminate against the human person, it is necessary to condone the engaging in or affirmation of acts, that necessarily demean and thus deny the inherent Dignity of the human person as a beloved son or daughter, such as abortion and various types of pornographic sexual acts that deny the Sanctity of the marital act, which is life-affirming and life-sustaining , and can only be consummated between a man and woman, united in marriage as husband and wife.

When we no longer desire to Love, lust becomes the order of the day.
Love, which is always rightly ordered to the inherent personal and relational Dignity of the human person, as a beloved son, daughter, brother, sister, husband, wife, father, mother, is devoid of lust.

Religious Freedom is in retreat because of those who deny that God Is Perfect, Life-affirming and Life-sustaining Love.

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Nancy

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