A Catholic lawyer takes another 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. Part I appeared in the July/August edition, pages 34-40. It offered the position that Judge MacKinnon erred in intervening in the case between Marc Hall and the Durham Catholic school Board because civil courts should/must decline jurisdiction over internal Church affairs.

Editor

Part II

The second common law limitation on his jurisdiction to grant the injunction Judge MacKinnon did not acknowledge was the principle laid down by the Supreme Court of Canada in Slaight Communications Inc. v. Davidson. (16) Justice Lamer, as he was then, said:

   "Legislation conferring an
   imprecise discretion must ... be
   interpreted as not allowing the
   Charter rights to be infringed.
   Accordingly, an adjudicator
   exercising delegated powers does
   not have the power to make an
   order that would result in an
   infringement of the Charter, and
   he exceeds his jurisdiction if he
   does so."

In this case, Judge MacKinnon got his imprecise discretion from section 101 of the Courts of Justice Act (Ontario). (17) A strong argument could be made that the injunction should not have been ordered because it infringed upon the s. 2 Charter right to freedom of religion of the members of the School Board, its ratepayers, Principal, teachers, and students, and the Bishop. Instead, Judge MacKinnon's entire focus seemed to be on whether or not the Board's decision infringed upon Marc's s. 2 Charter rights, not on the possible impact of his order on the rights of others. (18) I could also go further to talk about the injunction being an infringement of these other persons' right to freedom of expression and association, but at this point I think I will just draw your attention to one American case that looked at the American equivalent to our s. 2 Charter right to freedom of religion. A U.S. Federal District Court, in the case of E.E.O.C. v. Catholic University of America, (19) said the following:

   "[Government action may burden
   the free exercise of religion in
   two ways:] "by interfering with a
   believer's ability to observe the
   commands of practices of his
   faith, ... and by encroaching on
   the ability of a church to manage
   its internal affairs". (20)

I have already spoken much about how the injunction arguably encroached on the ability of the Roman Catholic Church to manage its internal affairs, but what about the argument that it "interfered" with the Principal's and board members' ability to observe the commands or practices of their faith? Whatever arguments Principal Powers and Bishop Meagher used to justify refusing Marc Hall's request, it seems to me that the best justification is the obligation imposed by the Catechism of the Catholic Church on all Catholics, but most especially those in leadership positions, to avoid giving "scandal", especially to young Catholics--see paragraphs 2284 to 2287. I suppose that Judge MacKinnon's counter-argument to this would be the somewhat imprecise statement by the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers (21) that "the freedom to hold beliefs is broader than the freedom to act on them." But doesn't this concept itself "discriminate" against those religions that actually urge their members to "practice what they preach"?

Section 15 Charter Analysis

In any event, say I am wrong about the civil courts lacking jurisdiction to (a) hear the Marc Hall case; and/or (b) order an interim injunction. Was Judge MacKinnon right when he went on to say: "It seems to me that it is clearly open to a trial court to find that, in coming to the decision that he did, Principal Powers unjustly discriminated against Mr. Hall in violation of his Section 15 Charter rights"?

Status of Catholic school boards

I of course, think that a trial court, acting reasonably, and applying current relevant Charter jurisprudence, would not find that the School Board had violated Mr. Hall's section 15 Charter rights, for one or both of two reasons:

First, in my opinion, the Principal and the School Board were not acting as "government actors" in making the decision to refuse him permission to appear at the prom with his "gay" boyfriend, as a couple. Second, I would suggest that the law should be that, even if they were "government actors", any discriminatory treatment that is based on a bona fide teaching of the Church is not unjust where the plaintiff has identified himself to the civil court as a member of the Church. Borrowing from the rationale given by the early American cases for the American formulation of the Judicial Non-Interference Rule, Marc Hall must be taken to have voluntarily submitted himself to the authority of the Church to pass judgment on his behaviour or lifestyle. Moreover, I would argue that a civil court should refuse to order relief where the Church offers its own internal court and system to deal with such disputes and the plaintiff has not taken advantage of them. Consider the Code of Canon Law, paragraph 1389(2).

Judge MacKinnon concluded that the School Board was "in law, a religious government actor". Early on in his judgment he stated:

   "'When, as here, a publicly funded
   school board establishes and
   implements policies of general
   application, it is subject to the
   Charter. Both the Principal and
   the Board purported to act on a
   matter of policy to enforce
   Roman Catholic teachings. '"

Later, he reasoned: "In 2002, a school board's legal authority (whether public or separate) is part of our provincial public educational system which is publicly funded by tax dollars and publicly regulated by the province."

He did not seem to think it important that the Durham Catholic District School Board is funded by only those taxpayers in the Durham Region who are Roman Catholics, and that the Education Act, arguably explicitly, and certainly implicitly, recognizes that the Ministry of Education has no constitutional or legal authority to regulate--i.e. interfere with or control--the denominational aspects of a Roman Catholic school board. I also wonder if he was shown those provisions of Canon Law that provide that Catholic schools operate under the supervision of the Bishop.

Judge MacKinnon then does a curious thing. In support of his conclusion that separate school boards are bound by the Charter, he cites an obiter dicta statement (non-binding statement in passing) by the Ontario Court of Appeal in In Reference Re Bill 30, An Act to Amend the Education Act (Ontario) (1987) [the " Bill 30 Reference" case], (22) a case that was appealed to and heard by the Supreme Court of Canada. Normally, the highest court's decision is what becomes binding or persuasive for future cases--the lower level judgments are simply relegated to the dustbin of judicial history. Also, this case was heard in the late 1980's. It is curious why Judge MacKinnon did not simply go to the latest pronouncement by the Supreme Court on the subject of what kind of entity, under what set of circumstances, will be found to have engaged in "government activities" subject to Charter scrutiny--Eldridge v. British Columbia (Attorney General). (23) In any event, he relied on the following statement of the Court of Appeal:

  "'This conclusion does not mean,
   and must not be taken to mean that
   separate schools are exempt from
   the law or the Constitution. Laws
   and the Constitution, particularly
   the Charter, are excluded from
   application to separate schools
   only to the extent that they derogate
   from such schools as Catholic
   (or in Quebec, Protestant) institutions.
   It is this essential Catholic
   nature which is preserved and protected
   by Section 93 of the
   Constitution Act 1867 and by
   Section 29 of the Charter. "

Judge MacKinnon's reliance on this statement as authority for the proposition that the School Board was a "government actor" does not square with the settled principles laid down by the Supreme Court of Canada in Eldridge on the subject of how the Charter may be held to apply to different types of entities. The Court said:

   "First, it may be determined that
   the entity is itself 'government'
   for the purposes of s. 32. (24) This
   involves an inquiry into whether
   the entity whose actions have
   given rise to the alleged Charter
   breach can, either by its very
   nature or in virtue of the degree
   of governmental control exercised
   over it, be properly characterized
   as 'government' within
   the meaning of s. 32(1). In such
   cases, all of the activities of the
   entity will be subject to the
   Charter, regardless of whether
   the activity in which it is engaged
   could, if performed by a non-governmental
   actor, correctly be
   described as 'private' Second, an
   entity may be found to attract
   Charter scrutiny with respect to a
   particular activity that can be
   ascribed to government. This
   demands an investigation not into
   the nature of the entity whose
   activity is impugned but rather
   into the nature of the activity itself.
   In such cases, the quality of the act
   at issue, rather than the quality of
   the actor, must be scrutinized."

The Court also emphasized:

   "The mere fact that an entity performs
   what may loosely be
   termed a 'public function', or the
   fact that a particular activity may
   be described as 'public' in
   nature, will not be sufficient to
   bring it within the purview of
   "government 'for the purposes of
   s. 32.... In order for the Charter
   to apply to a private entity, it
   must be found to be implementing
   a specific governmental policy or
   program."

In light of the above, referring to what the Ontario Court of Appeal said in the Bill 30 Reference case about separate schools being possibly bound by the Charter makes no sense in the post-Eldridge era. Later, Judge MacKinnon makes a nonsensical reference to the Supreme Court of Canada's ruling in the case of Adler v. Ontario (25) in support of his view that "this does not mean that the Charter does not apply to separate schools generally." Truly, there is no binding precedent that has specifically ruled that a separate school board is a government actor for Charter purposes. Adler had nothing to do with this question. Considering that the Ontario Court of Appeal. has conceded that separate school boards may be "partially insulated" from Charter scrutiny, it seems to me that they should be regarded as "private entities", and the "second" part of the Eldridge case applied in determining whether the Charter applies to the particular action challenged.

I therefore put it to you that it is far from certain that a trial court, knowing that it must apply the principles laid down in Eldridge, would find that a separate school board is carrying on a "government activity" when it refuses, on denominational grounds, a male Catholic student permission to bring a "gay" boyfriend to the prom.

The Education Act

"Judge MacKinnon said that the Education Act, in its co-instructional activities sections, now gives boards the explicit authority to hold school dances or control those who could or could not attend those dances. He rejected the Board's argument that, apart from the Education Act, it had an implicit or inherent right under the Constitution Act, 1867, to regulate those who can attend dances based on denominational concerns under the generic umbrella of school management. If he is right on this point, then, applying Eldridge, the activity in question "depends for its validity" on the provisions of the Education Act, and is therefore subject to Charter scrutiny. But of course, I think the Board's lawyers were correct on this point.

Judge MacKinnon misread the meaning of several past court decisions, neglected to examine other clearly relevant cases, particularly Daly, and misread the overall meaning and purpose of the provisions of the Education Act that deal with separate schools. In my opinion, the right of Catholic school boards to regulate who attends dances, for denominational reasons, is an implicit right derived from and protected by Section 93(1) of the Constitution Act, 1867. Moreover, the Education Act gives implicit deference to that right in sections 230.19 and 257.52, as well as to other rights, even those that did not necessarily exist in 1867. Judge MacKinnon seemed to conveniently overlook these provisions.

I think that a reasonable trial court would find that because at least part of its activities are "regulated", not by the Ministry of Education, but by the Catholic community and the Roman Catholic Church, and because a government can't really have a "religion", a Catholic school board can only logically be categorized as a "private entity", if the only other choice is categorizing it as a pure "government actor", all of whose activities are subject to Charter scrutiny. Moreover, in regulating attendance at the prom in accordance with Roman Catholic teaching, this "private entity" is not carrying out a specific government policy and its decisions in this area do not rely on the Education Act for their validity; rather, it is exercising the constitutional rights of its Catholic ratepayers, and acting under the authority of the Roman Catholic Church. Since when has it been a "specific" policy of the Ministry of Education that homosexuals should be permitted to attend proms as couples? These conclusions are supported by a sensible reading of Section 93(1) of the Constitution Act, 1867, as interpreted by the courts in cases ignored or misinterpreted by Judge MacKinnon, the Education Act, and the Code of Canon Law.

The upcoming trial

Now into the home stretch. What if the trial court assumes jurisdiction over this case even though I think it has no legal right to do. so, and also finds that the Board's decision is subject to Charter scrutiny? What legal issues would we expect the court to look at then?

In his judgment, Judge MacKinnon felt that he was compelled to conduct a balancing of the competing rights involved. He therefore embarked on an analysis that considered the Board's protections under section 93 of the Constitution Act, 1867 in order to determine whether the violations of Mr. Hall's section 15 Charter rights were justified. Curiously, this balancing analysis did not also include the section 2 Charter rights of the Catholic school board members, the Board's teachers, other students, the parents and the Catholic ratepayers. These rights include their freedoms of religion, conscience, expression, and association. In neglecting to include these rights in his analysis, he arguably ignored one of the important principles laid down by the Supreme Court of Canada in Trinity Western. That principle says that an acceptable resolution when s. 2 and s. 15 Charter rights collide is not to allow one rights claim to obliterate the public exercise of another right. An acceptable resolution is accommodation or balancing:

   "'freedom of religion, conscience
   and association coexist with the
   right to be free of discrimination
   based on sexual orientation ".

Judge MacKinnon's conclusions are summarized in four short paragraphs (44-47):

   "The question is this: Does
   allowing this "gay" student to
   attend this Catholic high school
   prom with a same-sex boyfriend
   prejudicially affect rights with
   respect to denominational
   schools under section 93(1) of the
   Constitution Act, 1867?

   "I find the answer to this question
   is "no" because, among
   other reasons, the evidence
   demonstrates a diversity of opinion
   within the Catholic community
   on pastoral care regarding
   homosexuality such that it is not
   clear what conduct is necessary
   to ensure that rights with respect
   to denominational schools Ore
   not prejudicially affected."

Balancing rights

Let's stop there for a moment. In my opinion, the Judge was wrong in law in considering any opinion, including his own, other than that of Bishop Meagher. Moreover, Catholics should be personally offended by his attitude. The Catholic Church is a hierarchical church. It is part of the common law and constitutional law of the United States that civil courts are bound to accept, on religious questions, the opinions of the highest authority in the church to whom the question has been submitted, and are not permitted to substitute their own or others' opinions for that opinion. This should be the law in Canada. Indeed, in the Lakeside Colony case, the Supreme Court of Canada, at the very least, endorsed the rationale for the American approach. Judge Gonthier wrote:

   "Especially in interpreting the
   tradition and custom of religious
   societies, the court is in great danger
   of falling into what Professor Chafee
   called the "dismal swamp of obscure
   rules and doctrines" (in "The
   Internal Affairs of Associations Not
   for Profit" (1930), 43 Harv. L. Rev.
   993, at p. 1024). In this regard,
   Professor Chafee makes this observation
   (at pp. 1023-24):

   "In very many instances the
   courts have interfered in these
   [church controversies], and consequently
   have been obliged to write
   very long opinions on questions
   which they could not well understand.
   The result has often been that
   the judicial review of the highest tribunal
   of the church is really an
   appeal from a learned body to an
   unlearned body.' However, as
   Professor Chafee also recognizes,
   the difficulty of understanding tradition
   and custom is really one reason
   to avoid assuming jurisdiction in the
   first place."

Judge MacKinnon continued:

   "In addition, it is my view that
   Principal Powers" decision was
   not justified under Section 93,
   both because the specific right in
   question was not in effect at the
   time of union in 1867 and
   because, objectively viewed, it
   cannot be said that the conduct in
   question in this case goes to the
   essential denominational nature
   of the school."

   "The defendants have not
   demonstrated to me that the section
   93 protection justifies a section
   15 Charter breach. I am not
   satisfied that regulation of this
   particular conduct is necessary
   for the preservation of the
   school's denominational nature. I
   am not satisfied that the right was
   in effect at the time of union in
   1867."

Judge MacKinnon has misunderstood the jurisprudence concerning section 93(1) of the Constitution Act. He thinks that because there was no specific statutory right of either Catholic boards or common school boards in 1867 to hold school dances or to control those who could or could not attend those dances, that right is not a right protected by s. 93(1). He obviously misread the Bill 30 Reference Case. It did not, as he says, say that section 93 acted to freeze the protected rights of Catholic schools as at 1867. ("A right capable of attracting the protection of s. 93(1) may be implicit in broadly defined statutory powers".... "Section 93(1) should, in my view, be interpreted in a way which implements its clear purpose which was to provide a firm protection for Roman Catholic education in the province of Ontario": per Wilson J.). (26)

Two American rulings

I also believe that Judge MacKinnon failed to consider two important American Supreme Court decisions. I think these cases would be relevant to this case, precisely because they dealt with organizations that were characterized--as Ontario separate school boards should be--as part private and part public; indeed, private organizations deemed to be "public accommodations" and therefore ostensibly subject to anti-discrimination laws of general application. They are also two very important freedom of expression or expressive association cases.

In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc. (GLIB), (27) the Supreme Court held that the application of Massachusetts' public accommodations law (similar to Ontario's Human Rights Code) to require the organizers of a private St. Patrick's Day Parade to include GLIB members among the marchers violated the parade organizers' freedom of expressive association under the First Amendment to the U.S. Constitution. The Court concluded that the parade organizers did not wish to exclude the GLIB members because of their sexual orientation, but because they wanted to march behind a GLIB banner. Similarly, Marc Hall was not refused permission to attend the prom because he was "gay", but because he wanted to attend with his "gay" boyfriend as a same-sex couple.

Boy Scouts of America

In 2000, the U.S. Supreme Court ruled in a similar case in Boy Scouts of America v. Dale. (28) In Dale, the court held that "the application of New Jersey's Public Accommodations law to require that the Boy Scouts accept Mr. Dale, a homosexual, as an assistant scoutmaster r[an] afoul of the scouts' [first amendment] freedom of expressive association." The Court summarized the right of expressive association in this way:

   "Implicit in the right to engage in
   activities protected by the first
   amendment is a corresponding
   right to associate with others in
   pursuit of a wide variety of political,
   social, economic, educationaL
   religious, and cultural ends....
   Government actions that may
   unconstitutionally burden this
   freedom may take many forms,
   one of which is intrusion into the
   internal structure or affairs of an
   association like a regulation that
   forces the group to accept members
   it does not desire.... The
   forced inclusion of an unwanted
   person in a group infringes the
   group's freedom of expressive
   association if the presence of that
   person affects in a significant
   way the group "s ability to advocate
   public or private viewpoints."

The Court first observed that, according to its statement of mission, the Boy Scouts' general mission is to instill values in young people, a function its scoutmasters and assistant scoutmasters perform expressly and by example during the time they spend with youth members. "It seems indisputable", the court stated, "that an association that seeks to transmit such a system of values engages in expressive activity".

The Court then explored, to a limited extent (deliberately), the nature of the Boy Scouts' view of homosexuality:

   "The Boy Scouts asserts that it
   teaches that homosexual conduct
   is not morally straight, and that it
   does not want to promote homosexual
   conduct as a legitimate
   form of behaviour. We accept the
   Boy Scouts' assertion. We need
   not inquire further to determine
   the nature of the Boy Scouts'
   expression with respect to homosexuality."

The final question it looked into was whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not promote homosexual conduct as a legitimate form of behaviour. Furthermore, as the court explained, "as we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression". Although "an expressive association cannot erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message, here Dale, by his own admission, is one of a group of "gay" scouts who have become leaders in their community and are open and honest about their sexual orientation.... Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behaviour."

The Dale court concluded:

   "Here, we have found that the
   Boy Scouts believes that homosexual
   conduct is inconsistent
   with the values it seeks to instill
   in its youth members; it will not
   promote homosexual conduct as
   a legitimate form of behaviour....
   As the presence of GLIB in
   Boston's St. Patrick's Day Parade
   would have interfered with the
   parade organizers' choice not to
   propound a particular point of
   view, the presence of Dale as an
   assistant scoutmaster would just
   as surely interfere with the Boy
   Scouts" choice not to propound a
   point of view contrary to its
   beliefs."

Finally, explaining that in each of its prior cases on the subject "the associational interest in freedom of expression has been set on one side of the scale, and the state's interest [in eliminating discrimination] on the other," the Court stated the outcome of that balancing in Dale:

   "The state interests embodied in
   New Jersey's Public Accommodations
   Law do not justify such a
   severe intrusion on the Boy Scouts'
   rights to freedom of expressive association.

Powerful precedents

In my view, these cases would be powerful precedents on our side at the trial, if only the lawyers would present them. It is similarly arguable that Marc Hall's attendance with his boyfriend as a couple would have interfered with the Catholic school board's choice not to propound a point of view contrary to its beliefs, under the equivalent sections of our Charter--the s. 2 rights to freedom of religion, expression, and association.

Note the very different outcome of the "balancing" in Dale versus the "balancing" Judge MacKinnon did in the Marc Hall case. Judge MacKinnon said that "an injunction will not compel or restrain teachings within the school and will not restrain or compel any change or alteration to Roman Catholic beliefs. It seeks to restrain conduct and not beliefs. As such it does not impair the defendants' freedom of religion." Whether or not this is true, it is clear that the judge failed to consider whether the defendants' and others' rights of freedom of expression and association would be infringed by the injunction. And as I mentioned earlier, while judges are not government actors whose decisions are subject to direct Charter scrutiny, the Supreme Court of Canada has said that they must make their decisions, including those made pursuant to discretionary powers, in accordance with Charter values.

Note also the contrast between the dismissive attitude of Judge MacKinnon towards the opinion of Bishop Meagher on Catholic teaching and the deferential attitude of the U.S. Supreme Court towards the opinions of the parade organizers in Hurley and the Boy Scouts of America in Dale. Judge MacKinnon said: "Even if I were wrong and the Bishop does have authority to articulate ... doctrine, it has not been done here with minimal impairment to Mr. Hall's rights ... The Board could have counselled Marc on his church's teachings.... No objective observer would then have been confused about the Board's public position on homosexuality and no reasonable, fully-informed Canadian would then have understood the board to be condoning or promoting the proscribed activity."

Nothing in the judgment even suggests that he considered, even for a moment, that he might not have the legal right to second-guess the School Board's and the Bishop's opinion as to the message that would be sent to younger students and other Catholics if Marc and his boyfriend were given permission by the board to attend the prom as a couple, and the harm that could befall the faith as a result.

Concluding comments

When the Supreme Court of Canada released its decision in the Trinity Western case in 2001, many commentators hailed it as a vindication of the rights of religious-oriented universities and religious students who wanted to become teachers. The majority did seem to recognize that religious-oriented teachers' colleges have the right to set moral standards for their students, and that their graduates are not to be denied an opportunity to teach in the secular public schools solely on the basis of what they might do in the classroom because of their religious background.

Notwithstanding the majority's talk of respect for the religious beliefs of student teachers, only a handful of commentators warned people of faith about the long-term impact of the court's obiter dicta (words in passing) validating the concept that the freedom to practice one's beliefs is not as broad as the freedom to hold one's beliefs. The Court speculated that if a Christian Trinity Western graduate found himself in a public school classroom, such a teacher might have to swallow his beliefs and follow and support a directive from the administration to teach respect for homosexual practices, on pain of dismissal.

Other commentators warned about the impact of the words of the sole dissenting judge in this case, Madame Judge L'Heureux-Dube. She rejected TWU's argument "that one can separate condemnation of the 'sexual sin' of 'homosexual behaviour' from intolerance of those with homosexual or bisexual orientations." It is not possible, she said, "to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood."

Sure enough, subsequent cases have demonstrated the wisdom of these warnings. I'm thinking here about the OHRC v. Brockie (29) case and the recent decision of the Supreme Court of Canada in Chamberlain v. Surrey School District No. 36, (30) as well as the case I'm featuring here today, the Marc Hall case. In each case, the court has seized on those infamous words from the Trinity Western case--"the freedom to hold beliefs is broader than the freedom to act on them"--to justify its decision, even though it seems to me that they are taking these words further than their original intent. Indeed, the freedom to act on one's beliefs is becoming not just less broad than the freedom to believe, but almost non-existent. And yet, what religion worth its salt actually holds that a believer's behaviour need not be consistent with his creed? In my view, the belief/conduct distinction is reflective of the distinctly secular humanist view that religion should be completely privatized, and our Courts are swallowing this philosophy, holus bolus.

Courts and religious freedom

Canadian courts are essentially the view of Yale Law Professor Stephen L. Carter that, increasingly, western secular societies pay lip service to the concept of freedom of religion, professing to uphold their citizens' right to believe anything they want, but then expecting them to behave as if their faith means nothing to them. Through their judgments they display their biblical illiteracy. Speak to them about concepts such as "living your faith daily", "loving the sinner, but hating the sin", avoiding "giving scandal" or "leading others astray" or avoiding "material co-operation with sinful activities", and you are more likely than not to get responses professing incomprehension if not irrelevance.

After Trinity Western, I began to warn my relatives and friends who were Christians teaching in public school systems that one day they may be forced to present homosexuality in their classroom as a lifestyle equivalent in every way to heterosexual marriage. However, even I was somewhat surprised by Judge MacKinnon's decision in the Marc Hall case. Maybe I was overly optimistic that the courts would at least leave Catholic schools alone. (31) Even though the speculation in the Trinity Western case was clearly about what might happen to Christian teachers in the secular public schools, Judge MacKinnon extended the application of those comments to teachers and authorities of Catholic public schools and even private schools.

Like the Borg in the contemporary Star Trek series, our secularized courts are telling people of faith--"We are secular humanists.... You will be assimilated.... Resistance is futile."

Some commentators suggest that we people of faith should not be surprised that our Courts are trying to compel us, even in the private sanctuary of our own schools, to accept the view that homosexual relationships and heterosexual relationships are morally equivalent. Today, every nation in the western world is a "liberal" state, and Canada is one of the most obvious examples of a "liberal state". Carter may be correct in his observation that contemporary liberalism, "[not] content to serve as a theory of the state, ... has grown into a theory of organization of private institutions in the state", seeking "to explain how the state should both stimulate and regulate the search for meaning."

Once it has become mainstream thinking that public (i.e. Government) schools cannot reflect anyone's religious beliefs or embrace a philosophy of education that even acknowledges objective moral truths, (32) then the next logical step is to start pressuring private organizations, including churches, to accept these attitudes as well. So these conflicts between people of faith and the Courts we are seeing may represent just a few of the battles among many between the contemporary liberal state and the religions in a broader "competition to explain the meaning of the world." (33)

This competition over "meanings" and the state's "tendency toward hegemony" may accurately describe what is actually happening today, but the more profound question is whether a nation that purports to value diversity ought to resist this "tendency toward hegemony" and allow religions that make "truth claims" to fully participate in the "marketplace of ideas". It would appear that Canada's secular courts, at least, are generally saying "no".

State ideology

It is the writer's view, shared by other commentators like Professor Carter and Fr. Richard John Neuhaus, that a state's efforts to "alter the structure of institutions that do not match" the state's "set of meanings" is ultimately "destructive of democracy" and true diversity.

The Marc Hall case is an important battle in this struggle. We need to hope and pray that the lawyers for the Catholic parties will put up a good legal fight in the upcoming trial. As I have tried to explain, they should be marshaling some legal arguments and authorities that perhaps were not presented at the injunction motion.

In particular, I think it would be very helpful to urge the Court to refuse to accept jurisdiction to hear the case on the ground that it is an internal Roman Catholic Church dispute over Catholic moral doctrine and member discipline. However, if jurisdiction over the case is nevertheless assumed, the trial Court should be urged to consider certain American cases not discussed by Judge MacKinnon in trying to arrive at a just balancing of the rights of the Catholic community and Marc Hall; in particular, the Dale and Hurley cases decided by the Supreme Court of the United States. (34)

Finally, if, during the course of its "balancing act",it can't restrain itself from "trolling through" (35) our Catholic beliefs, then the Court should at least be persuaded to follow the lead of the U.S. Supreme Court in the Serbian Orthodox Diocese case, and accept Bishop Meagher's opinion of Catholic teaching as determinative of the issue, instead of substituting its own opinion, or that of dissenting Catholics, as to Catholic teaching on bow one is to respond to public displays of the homosexual lifestyle. In this process, the lawyers may have to go more deeply into Canon Law and the Catechism of the Roman Catholic Church, explaining the duty of all Catholics, including the members of the School Board and Marc Hall himself, to avoid giving scandal to younger students, avoid occasions of sin, and to refrain from materially co-operating in sinful activity. (36)

The bottom line is that all his Principal, School Board, and Church were asking Marc Hall to do was to make up his mind as to which is more important to him: behaving as a believing Catholic or behaving in a manner associated with the "gay" lifestyle. The Board expected him to set a good example for his peers and the younger students attending his school. (37)

We, as Catholics, should be asking the civil courts to respect our dignity as a Church in dealing with our own issues over Catholic moral doctrine and the disciplining of one of our members, and leave us alone. If we have the right, which is settled in law, to hire only Catholic teachers (Daly), to fire Catholic teachers who do not live up to Catholic moral teaching (Re Caldwell and Stuart), and to expel [excommunicate] members from our Church (Lakeside Colony), how can anyone rationally argue that we don't have the right to tell a graduating male student that he can't publicly display himself at the school prom as half of a same-sex couple? Something is just not right here.

N.B. The full article below together with all the footnotes, may be found on our website www.catholicinsight.com under Archives/Church/Education/2003.

Readers are asked to urge the Catholic Civil Rights league to request the status of intervenor in this court case in order to bolster the defence of Catholic rights. Address: 46 St. Clair Ave. East, Office 301, Toronto, ON, M4T 1M9. Tel [phone]; Fax [phone]; E-mail: [e-mail]

The entire article is soon to be available in the book Judicial Activism: A threat to democracy and religion, Essays by Cauchi, de Valk, Dooley, Hunter, Landolt, Leishman, McBride, and Stock. Edited by Alphonse de Vaik. Life Ethics Information Centre, 104 Bond St., Toronto, ON, M5B 1X9, $19.95 plus $2.50 postage per copy.