A Catholic lawyer takes a look at the Marc Hall case.

This is a slightly abbreviated version of a paper delivered at a meeting of the Catholic lay association Witness, in Toronto, on May 17, 2003.

Editor

In 2002, Marc Hall was a graduating student at a high school in Oshawa, Ontario, governed by the Durham Catholic District School Board. He identified himself as a Roman Catholic; yet he also identified him as "gay". He wanted to attend his graduation prom with his homosexual partner who did not attend the school.

The prom is traditionally an event organized by the students but under the auspices and supervision of the school authorities. Under established rules at the school, all students wishing to buy tickets to the prom were required to submit for school approval the names of those with whom they intended to attend. The school required this information so that it would know who was present at the function.

Well in advance of the prom, Marc Hall sought the permission of the principal to bring his "gay" partner, but Principal Powers refused permission on February 25, 2002. Mr. Powers reasoned that interaction at a prom between romantic partners was a form of sexual activity and that if permission were granted, it would be seen as both an endorsement and condonation of conduct contrary to Catholic Church teachings.

Marc appealed that decision to the School Board but the appeal was denied on April 8, 2002. It is important to note that Marc did not further appeal that decision to his bishop, Bishop Meagher, or otherwise exercise any other right he may have had under Canon Law, as a member of the Catholic Church, to have his disagreement with the Board reviewed by Church authorities. This, I will argue here, was a key fact that Judge MacKinnon and the lawyers seemed to ignore during the hearing of the motion for the injunction that was granted in Marc's favour in May of 2002. (1) Instead of keeping this dispute "within the family", Marc turned to the civil courts for relief. He commenced an action in the Ontario Superior Court of Justice in Whitby, Ontario, asking for damages in the amount of $100,000 for an alleged breach by Principal Powers and the school board of his Section 15 Charter rights. (2)

It sometimes takes years before a legal action gets to a trial, let alone before it is finally decided. As the prom was scheduled for May 10,2002, Marc's lawyers brought a motion, within the Action, for what we lawyers call an interlocutory or interim injunction restraining Powers and the School Board from preventing his attendance with his "gay" boyfriend. Obviously, if something is going to happen that will affect the subject matter of the lawsuit before the trial can possibly be held, a party can try to convince a court to order some sort of injunction to prevent harm that may occur before a trial can take place. Since attending the prom was the subject matter of the case, and Marc had only one prom he could attend, it was appropriate legal strategy to ask the Court for an interim injunction. Whether or not the injunction should have been granted is quite another matter.

On the day of the prom, May 10,2002, Judge MacKinnon granted the requested injunction. It is interesting that the School Board promised the Court ahead of time that if the injunction were granted, it would not cancel the prom.

Here we are, just more than one year to the day of that injunction order and the prom, discussing this case. Why? Well, I understand that the case is just about ready to go to trial this spring. Like many Catholics, at the time of the injunction I was incensed by what I saw as an unconscionable intrusion by the civil courts into the internal affairs of the Catholic community.

I was also disappointed by what I saw as a lack of effort on the part of the lawyers acting for the Catholic parties in presenting the best arguments, as well as the board's capitulation to secular authorities in agreeing to not cancel the prom. If I had been a board member, I would have voted to not concede the point, and dared Judge MacKinnon to actually order us to hold the event. Had he dared to do so, this would have even more strikingly highlighted the audacity of his attempt to interfere in the internal affairs of the Catholic community. Moreover, I was very much disappointed in the students at Marc's school. I can't help feeling that if they had been authentic Catholics, they would have boycotted the event, if only to demonstrate that secularists cannot force us to conform to their vision of civil rights.

What is at stake?

Today, a year later, there is a danger that, merely because of the passage of time, the Catholic community has become somewhat complacent about the whole matter. As the case comes to trial, I think it is important that the Catholic community be reminded of the vital issue that is at stake here. If we lose at this trial, then we might as well resign ourselves to the fact that the constitutional protections we thought we had under s. 93 of the Constitution Act and s. 29 of the Charter,3 as well as the right to freedom of religion, expression, and association under s. 2 of the Charter, are mere window dressing.

Judge MacKinnon's judicial attitude is just the latest example in a disturbing recent trend in church and state cases throughout North America. Increasingly, people of faith are being told by the secular world around us that they are free to believe whatever they want, but they must, in essence, behave, publicly, as if their faith means nothing to them. And the courts are joining in on this secular chorus.

As Fr. Richard John Neuhaus, editor of the journal First Things, wrote in his book, The Naked Public Square:

"The idea is widely accepted that religion is something between an individual and his God;... religion is the business of church and home and has no place in public space. These and other axioms are, it is commonly said, part of the American way. Legally and politically they are supported by a notion of the "separation of church and state" that is understood to mean the separation of religiously based morality from the public realm." (4)

Fr. Neuhaus is usually identified as a social conservative. But sometimes the criticism of this axiom comes from even those who are identified as political liberals, like Yale law school Professor, Stephen L. Carter, author of The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. (5) This 1993 book begins with the following statement:

"Contemporary American politics faces few greater dilemmas than deciding how to deal with the resurgence of religious belief. On the one hand, American ideology cherishes religion, as it does all matters of private con science, which is why we justly celebrate a strong tradition against state interference with private religious choice. At the same time, many political leaders, commentators, scholars, and voters are coming to view any religious element in public moral discourse as a tool of the radical right for reshaping American society. But the effort to banish religion for politics' sake has led us astray: in our sensible zeal to keep religion from dominating our politics, we have created a political and legal culture that presses the religiously faithful to be other than themselves, to act publicly, and sometimes privately as well, as though their faith does not matter to them."

These are American commentators, but these statements ring true for the Canadian experience as well.

Judges' errors

Today I want to outline for you what I believe are some of the errors Judge MacKinnon made on the motion for the injunction. I also want to alert you to the kinds of arguments that the Catholic community should expect to see from the lawyers protecting their interests at the trial. I do have to preface my criticisms of Judge MacKinnon with an acknowledgement that in hearing a case of a mere motion for an interim injunction, a judge is not expected to thoroughly examine the legal issues in the case. In his own words, he was "required to consider in a preliminary way many of the issues that may ultimately be for determination by the trial court after argument and in much greater detail and with much greater time for reflective thought."

First of all, he was required to determine whether or not there was a "serious issue" to be decided. In a layman's terms, does the claimant have a reasonable chance of winning this case? Obviously, if a higher court has already decided the legal issues in question in a previous case in which the facts are indistinguishable, then he should refuse to issue an injunction because there is "no serious issue" to be decided at trial.

But in deciding such a question, even if the judge is to look at the issues in a "preliminary way" only, in my opinion, he is still duty-bound to review the legal principles likely to be applicable at trial in some reasonable depth. In my view, there were important legal questions which he either ignored or quickly glossed over without meaningful analysis at all. This could be because the lawyers were not on the ball, or it could be that they urged the judge to look at these questions but he ignored their arguments. In any event, when this case does goes to trial, it is likely to receive a lot of media attention, and I think that the Catholic community should be made aware of the questions and issues that the trial court should be addressing, and on which the media should be reporting.

Whether or not the errors made at the motion for the interlocutory injunction will be corrected at trial will probably depend on whether the Catholic parties in the case and their lawyers are properly motivated to defend and promote the right of the Catholic community to be, ... well Catholic.

Before I get into discussing the errors in detail, let me now briefly identify the three major ones:

1. Judge MacKinnon failed to address the preliminary question of whether or not the civil courts have any jurisdiction at all to hear this kind of dispute. The trial court should be urged to see this case as an internal Roman Catholic Church dispute over Catholic moral doctrine and a matter of church discipline of its own members, and apply long-standing precedents in both Canada and the United States that make it clear that it is unlawful and/or unconstitutional for the civil courts to interfere in such matters. In my opinion, the trial court could reasonably dismiss Marc's case on this basis alone.

2. Even if I am wrong about this first point, Judge MacKinnon failed to adequately address the question of whether a Catholic school board's decisions that in volve "denominational issues" are subject to scrutiny under the Charter of Rights and Freedoms. He simplistically concluded that the School Board was a "religious government actor" and therefore bound to respect Marc Hall's s.15 Charter rights. This is a term without legal precedent, and inventing new law is some thing judges are not supposed to do on interlocutory motions. Moreover, it is an oxymoron-- a contradiction in terms. A government body cannot have a religion and cannot have constitutional rights. Precedent clearly shows that Catholic school boards carry into the Courts the constitutional right of Catholic communities and their individual members to have the government provide their children with an authentically Catholic education. They are the instruments by which the Catholic community exercises those rights as against the secular governmen ts. At one time, the Courts focused on one essential question in determining whether certain activity was subject to Charter scrutiny: Was the "actor" a government body? He failed to consider and apply the more recent, revised test that the Supreme Court has set down [in the Eldridge case] for Charter applicability. A Court is required to determine: (a), whether a body is a government body; and (b), if it is a private body, whether certain of its activities might still be subject to scrutiny for compliance with the Charter of Rights and Freedoms. I trust that the trial court will be pushed to consider this issue in more depth. A strong case can be made for the proposition that a government-funded Catholic School Board remains a private, non-governmental entity, and only its activities that are in further ance of a specific government policy or program and/or that depend for their validity on government authority are subject to Charter scrutiny. Its decision in the Marc Hall controversy was not of that kind.

3. Even if I am wrong about the first two points, Judge MacKinnon made a grievous error in thinking he had jurisdiction to second-guess Bishop Meagher's sworn statement as to the teaching of the Catholic Church on homosexuality and the morality of a school board permitting homosexuals to attend at a school event as same-sex couples. His refusal to accept Bishop Meagher's evidence, concluding that there is a "substantial diversity of opinion" in the Catholic church on this subject, was outrageous.

The U.S. Supreme Court has definitively ruled (in the Serbian Orthodox Diocese case) that where a teaching of a hierarchical church [which the Roman Catholic Church definitely is] is in issue in a case before the civil courts, the civil court must accept as definitive the opinion of the highest ranking ecclesiastical officer who has addressed the issue in dispute. He should have accepted Bishop Meagher's opinion that allowing Marc and his boyfriend to attend the prom as a couple would be inconsistent with Catholic moral teaching, and ruled as irrelevant his own personal opinion and the opinions of other Catholics. He might still have ruled, ultimately, that an injunction was appropriate on the grounds, that whether or not he was bound by Bishop Meagher's opinion on Catholic teaching was still a serious legal issue up for debate as a matter of Canadian law; but at the very least he should have identified this as an important issue. I hope that the lawyers will present this argument at the trial, and that the t rial court will be persuaded to adopt this American legal principle into Ontario law.

Is this case an internal Catholic matter over which the civil courts should decline jurisdiction?

As in any legal case, how you characterize the facts is very important because they will dictate which legal issues are to be decided, and, more important, which legal principles apply to the facts. As lawyers, we are taught to do our best to persuade a judge to characterize the facts of the case in the way that will lead the court to apply the established legal principles that are most favourable to our client.

In most "fact" situations, there are what I like to call, "ah-ha" facts. These are certain facts that scream Out the legal principles that ought to apply to the case. In this case, when I read the first sentence in Judge MacKinnon's judgment on the injunction motion--" The plaintiff is a Roman Catholic 17-year-old..."-- this was an "ah-ha" moment for me. It seemed obvious that this was an internal matter for the Roman Catholic community to decide; not something that the civil courts have any business meddling in. It is clear that the judge recognized that he was venturing into dangerous territory by agreeing to hear the motion, but he failed to then examine the law to determine whether he ought to accept jurisdiction in this particular case. He said (para. 31): "It is not the task of a civil court to direct the principal, the board, the Roman Catholic Church, or its members, or indeed any member of the public, as to what his or her religious beliefs ought to be.... Debates as to what the Catholic faith should require on the issue of homosexuality ought generally to be resolved within the Roman Catholic Church and not in a court of law. But I find that Mr. Hall is entitled in this court to question the correctness of the statement in the defendant's materials that Catholic teachings and board policy in fact proscribe "homosexual behaviour" and a "homosexual lifestyle" so as to justify prohibiting Mr. Hall from attending his prom with Mr. Dumond."

Had I been counsel for the Catholic parties in this case, I would have made a motion to the judge to immediately dismiss the request for the injunction as well as a cross-motion for summary dismissal of the entire case on the grounds that the court did not have jurisdiction to hear this matter. What reasons would I have given? The following:

1. The Catholic school board is an inseverable part of the Roman Catholic Church. The real parties to this dispute are a person who professes to the Court to be a Roman Catholic adherent, and the Roman Catholic Church.

2. The dispute concerns a matter of Roman Catholic moral doctrine and Church discipline; the scope of discretion a judge has to issue an injunction under s. 101 of the Courts of Justice Act (Ontario) is limited not only by the common law dealing with injunctions generally, but also by two other common law principles: one that says that the civil courts must not intervene in internal church disputes unless it is a matter of procedural legality; and one that says that a general statutory discretion must be interpreted as not allowing Charter rights to be infringed--in this case, the Catholic community's section 2 Charter rights to freedom of religion, expression, and association.

3. Marc Hall has never complained that the Principal or the Board did not properly follow their own procedures in coming to their decision to refuse him permission to attend the prom with his "gay" boyfriend, as a couple.

4. Marc Hall did not exhaust his rights as a Catholic under Canon Law to have a Church court or the Bishop rule on his dispute with the board.

I will spend much of the rest of my time trying to explaln these reasons to you.

What I find surprising is that, having acknowledged somewhat that he was venturing into dangerous legal territory, the judge did not make the effort to outline the well-established Canadian legal principle that civil courts are not to interfere in "domestic" or internal-church matters and the well defined exceptions to that principle. I will call this principle the "Judicial Non-Interference Rule".

Moreover, he made no effort to explain why this case fits within one of those exceptions. Interestingly, his words almost suggest a concession that the School Board and the principal were actually part of the "Catholic Church" in a broad, non-technical sense. But it seems to me that this itself raises an important preliminary legal question that should not have been glossed over and should be thoroughly examined at the trial. After all, in a strict legal sense, a school board is a legal entity unto itself, separate and distinct from the institutional Roman Catholic Church.

In Canada, the well-known cases affirming the Judicial Non-Interference Rule all seem to involve the Church proper, and not organizations affiliated with or ancillary to the institutional church. In other words, I have been unable to locate any Canadian court cases in which this threshold issue has been squarely dealt with. But I suggest that there are a number of reasons why it would be reasonable for a Court to come to the conclusion that, for the purposes of the application of the Judicial Non-Interference Rule, a Catholic School Board, even a publicly-funded one, ought to be viewed as an inseverable part of the institutional Roman Catholic Church.

First of all, many states in the United States have extended the "religious employer" exemption from certain civil rights provisions of employment standards statutes beyond the institutional churches themselves to certain organizations affiliated with the churches. To qualify for the exemption, the primary purpose of the affiliated organization must be the inculcation of the religious values of the church with which it is affiliated. (6)

This seems to be a fair and reasonable test to apply, and if the trial court were to consider this issue, it could reasonably adopt this criterion and should be urged to do so and apply it. If it does, it should also, logically, rule that a Catholic School Board is an inseverable part of the Roman Catholic Church. Two very important Canadian precedents (Caldwell v. Stuart [SCC]) and Daly (Ont. C.A.) (7) demonstrate unequivocally that Canadian courts recognize that the primary purpose of Catholic schools is the inculcation in its students of the religious values of the Roman Catholic Church.

Canon Law

Additional support for the proposition that Catholic school boards should be considered to be an inseverable part of the Roman Catholic Church for the purposes of the Judicial Non-Interference Rule can be found in Canon Law.

Consider Canons 803 to 806, which clearly indicate that a school that holds itself out to the public as "Catholic" can only do so with the authority of the Church, and operates under the control of the Church, at least in respect of matters of faith. (8)

I am not trained in Canon Law, I don't pretend to be, and I stand to be corrected in my understanding of it and its application. But at least one priest has told me that, in the normal course, a bishop formally gives a Catholic school board permission to use the word "Catholic" in its name, and designates it as a "juridical person", meaning that it has formal rights, duties and obligations under the Code of Canon Law. I do not know if the Durham District Catholic School Board has been so designated, but I speculate that it has.

Finally, certain provisions of the Education Act tend to support my proposition. Consider sections 53(3), 230.19, and 257.52 of the Act. (9)

Sections 230.19 and 257.52 say that the Ministry of Education, when exercising certain remedial powers over the board's functions, is not authorized to interfere with or control the denominational aspects of a Roman Catholic board [note that these aspects are not necessarily limited to those existing at 1867].

In my view, these provisions alone demonstrate that Ontario's Legislature has recognized the superior constitutional rights of Catholics in respect of education; recognized that, in respect of purely secular issues, a Catholic Board is accountable to the Ministry of Education but, in respect of denominational issues, is accountable to the Catholic community and its church. In my view, then, the idea that a separate school board is not a part of the Church for the purposes of the Judicial Non-Interference Rule is not consistent with the overall scheme and purpose of the Education Act, at least is it relates to Catholic schools.

Assuming that this preliminary legal question is settled in the favour of the Catholic community, what :hen is the content of this Judicial Non-Interference Rule? I will explore both the Canadian and American Formulations of this rule.

The Canadian formulation

The modern Canadian cases that discuss this rule generally fall into two categories:

1. Cases in which a member of a religious community has been expelled by the authorities of that community, and has asked the civil courts to intervene because he feels he has been unjustly expelled.

2. Cases in which a member of the clergy of a church has been dismissed or disciplined by the church, and has asked the civil courts to intervene because he feels that he was unjustly dismissed or disciplined.

In Lakeside Colony of Hutterian Brethren v. Hofer, (10) the Supreme Court of Canada considered the case of a family of Hutterites who had been expelled by their colony. The issue here was whether the court should assist the Hutterite colony in enforcing its expulsion of this family from the colony. In the end, the Court refused to assist the colony, not because they disagreed with the expulsion per se, but because it broke its own rules on how to go about expelling a member. The Court took jurisdiction to hear this case under a recognized exception to the Judicial Non-Interference Rule.

Speaking for the majority, Justice Gonthier said:

"The courts are slow to exercise jurisdiction over the question of membership in a voluntary association, especially a religious one. However, the courts have exercised jurisdiction where a property or civil right turns on the question of membership."

In this case, the Court did decide to accept jurisdiction to hear the case, but even then it recognized that the scope of permissible review was limited. J. Gonthier continued:

"In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural Judge, and without mala fides. This standard goes back at least to this statement by Stirling J. in Baird v. Wells (1890), 44 ch. D. 661, at p. 670: "The only questions which this court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural Judge; and, thirdly, whether the decision complained of has been come to bona fide."

Contrast this approach with that of Judge MacKinnon in the Marc Hall case. He assumed jurisdiction in a case that did not involve property rights or Marc's expulsion from the Catholic Church, and then, once he did, he went on to review the merits of the board's decision, not just whether the board followed the rules in making that decision. I note again that Marc Hall never complained that the procedure used by the Principal and the Board was "unfair".

Now let's look at the clergy dismissal/discipline cases. Relying on previous cases, in McCaw v. The United Church of Canada," the Ontario Court of Appeal formulated the Judicial Non-Interference Rule in the following way:

"The civil courts are properly reluctant to interfere with the internal affairs of a church, but they will do so to ensure that a member of a church is not treated unfairly. A fortiori they ought to interfere if a member of a church is treated unlawfully."

It is clear that when the courts hearing cases of this type speak of "unfairness" or "unlawfulness", they are not referring to the fairness of the Church's decision per se, but only about procedural fairness. 12 Again, in the Marc Hall case, Judge MacKinnon thought the civil courts have a right to review the Board's decision itself, not just how that decision was made. I think he was clearly wrong on this point, and I trust that the trial court will see things differently.

The American formulation

The American formulation of the rule is even more strict than the Canadian one. First of all, the Americans have elevated the rule from a mere rule of the common law to a constitutional principle. This probably stems from an important difference between the American Constitution and the Canadian Charter of Rights. Under the American Constitution, the courts are explicitly said to be a part of government; therefore, just like the executive and legislative branches of government, the judicial branch also has an explicit duty to respect the constitutional rights of individuals or groups before them. Under the Canadian Charter, on the other hand, the courts are not considered "government actors". (13)

Second, in many circumstances, the American version of the rule prohibits a court from even reviewing the process that the church authority used to arrive at its decision. Thus, it goes much further than the Canadian version.

In 1976, the Supreme Court of the United States ruled in a case called Serbian Orthodox Diocese v. Miliovojevich. (14) In 1963 and 1964, the Holy Assembly and Holy Synod of the Serbian Orthodox Church (Mother Church) first removed Milivojevich as bishop of the American-Canadian diocese of the Church, and then defrocked him. He turned around and sued the Church in the Supreme Court of Illinois. That Court held that the proceedings of the Mother Church were procedurally and substantively defective under the internal regulations of the Mother Church and therefore arbitrary and invalid. The U.S. Supreme Court accepted an application for judicial review of that decision to determine whether the actions of the Illinois Supreme Court constituted improper judicial interference with decisions of the highest authorities of a hierarchical Church in violation of the First and Fourteenth amendments to the U.S. Constitution.

The Court held that the inquiries made by the Illinois Supreme Court into matters of ecclesiastical cognizance and polity and the Court's actions pursuant thereto contravened the First and Fourteenth amendments. It therefore reversed the lower Court's decision.

The U.S. Supreme Court relied on long-standing precedent in coming to its decision. It said:

"The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical Church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. Consistently with the first and fourteenth amendments "civil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law [to decide such disputes].... Such a determination frequently necessitates the interpretation of ambiguous religious law and usage. [426 U.S. 696, 709]. To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] Church so as to decide... religious law [governing church polity] ... would violate the first amendment in much the same manner as civil determination of religious doctrine." Md. & Va. Churches v. Sharpsburg Church, 396 U.S. 367, 369(1970) (Brennan, J., Concur ring). For where resolution of the disputes cannon be made without extensive inquiry by civil courts into religious law and polity, the first and fourteenth amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hiera rchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Ibid." (15)

In assuming jurisdiction in the Marc Hall case, against an expressed general inclination not to interfere in church affairs, Judge MacKinnon offered the following justification:

"If individuals in Canada were permitted to simply assert that their religious beliefs require them to discriminate against homosexuals without objective scrutiny, there would be no protection at all from discrimination for gays and lesbians in Canada because everyone who wished to discriminate against them could make that assertion."

In my view, if Canadian courts adopted the American formulation )f the Judicial Non-Interference Rule, "gays and lesbians" would not be stripped of all reasonable expectations of legal protection from discrimination. Only "gays and lesbians" who voluntarily remain members of the hierarchical churches would not have access to the civil courts for relief. Moreover, the Serbian Orthodox Diocese case does not suggest that a party accused of discriminatory behaviour would not have an obligation to lead evidence that his church's teachings required his behaviour; only that the civil courts must accept that evidence when it comes from the highest official authority within the hierarchical church.

All in all, had these Canadian and American precedents been put to Judge MacKinnon, he would have had a much tougher time justifying his injunction order. Let's hope that they are presented to the trial court for consideration.

N.B. Footnotes are available on request by e-mail. They will also appear in the book mentioned below.