Supreme Court's indecency interpretation unacceptable.

THE TRUTH WILL MAKE YOU FREE (JOHN 8:23)

Sir William Blackstone, English jurist and law professor (1723-1780), wrote in his famous Commentaries on the English Common Law that "no enactment of man can be considered law if it does not accord with the law of God."

Blackstone spoke for the world. But today in Canada that rule is dead, if one is to believe the Supreme Court.

On December 21, 2005, the Supreme Court (S.C.) issued a new interpretation of the Civil Code's indecency clauses, written by Chief Justice Beverley McLachlin (Regina v. Labaye; 7 to 2 majority). It legalized swingers' clubs--including orgies and partner swapping. Because these acts are done on private property, and not in public, they do not offend against the test of indecency, the Court said. Only when it can be proven that such acts cause harm may action be taken to stop them.

What does the ruling mean? First, the S.C. has rejected "community standards" as the rule by which to measure what is decent or indecent. It opts for the term "harm," but from the three categories of harm listed by the court it becomes clear that "harm" is so elastic as to be practically unusable. In the third category, the S.C. has already ruled out one of the most evident charges, that of causing the spread of disease. This, it says, "must be discounted as a factor because it is conceptually and causally unrelated to indecency."

In brief, the doing of "harm" turns out to be something to be evaluated by community standards but, of course, these are now abolished. Hence, the Court has, in fact, removed any and all restrictions on indecency. This leaves the road wide open for the legalization of prostitution, polygamy, sadomasochism or any other evil, so long as these are not done publicly. But even that last restriction has been undermined already by, for example, an Ontario judgment that women may go bare-breasted in public places.

One may ask: how did we get to this stage? The parting of minds began in earnest 40 years ago. With the legalization of contraceptive devices in 1967, divorce in 1968, abortion and homosexuality in 1969, Canada's community became deeply divided. These laws were enacted "democratically" by Parliament. Parliament continued on this chosen path with subsidiary measures such as, in 1984, divorce-on-demand after one year's separation.

Meanwhile, the Courts took up where politicians left off. "Community standards" were steadily dismantled through ruling X-rated movies not to be indecent; through opposition to censorship, or quarrels over Sunday laws, usually with lawyers playing out one province against another.

By 1982 the Charter of Rights had appeared, with its "equality" section(S15) becoming effective in 1985. It led to politicians unloading difficult moral controversies upon judges, some of whom were anxious to broaden their powers. In January 1988, the S.C. used S 15 to deliver a highly subjective interpretation on abortion demolishing the 1969 legislation. Since then judges have pronounced on so many issues that today their "judicial activism" is a direct threat to the sovereignty of Parliament.

These recent Canadian developments are greatly aggravated by an ideological shift of long duration in the Western world: the shift from (religious) morality to (secularist) law. It was Immanuel Kant (1724-804) who argued that morality must be autonomous, that is, it must flow from the moral agent "self-legislating,' that is, giving himself law by the judgment of his own reason. The other morality (which he called "heteronomous") is a law received from "outside" one's own judgment. True morality, Kant argued, was necessarily autonomous, while morality legislated from "outside" one's own judgment contradicts man's freedom. He went on to assert that "the human will is not subject simply to the law," but subject only "when the will itself is the author of the law." (Groundwork of the metaphysics of Morals quoted in Arthur Hippler, "Is Catholic Morality 'heteronomous?'" Wanderer, Dec. 1, 2005).

It is this ideology of man-made law as the only authentic law which gives the boot to Blackstone's rule that "no enactment of man can be considered law if it does not accord with the law of God." Chief Justice Beverley McLachlin, and all who think as she does, see no place for God, or Divine Revelation, or traditional morality in the making of laws.

The Canadian community must now organize politically to stop the judiciary's attack on the foundations of our society.

FATHER ALPHONSE DE VALK, C.S.B. EDITOR