A British Columbia battle over gay and lesbian books has made its way to the Supreme Court of Canada despite the fact that the applicants had missed an already extended six-month deadline to submit their appeal. The unusual decision to still let them have their day in court was granted by a panel of three justices headed by Justice L’Heureux-Dube, a well know gay-rights activist.

The books in question attempt to portray homosexual relationships as normal, healthy alternatives to the traditional family. They were originally reviewed by various levels of the Surrey district’s administration back in 1996, and then passed on to the Surrey School Board. In a four-to-two vote, the school board refused the request to add the books to the ministry list. The teacher, James Chamberlain, applied to the B.C. Supreme Court to have the decision revoked. His appeal was heard by Madam Justice Saunders, who deemed the Board’s decision in violation of Section 76 of the School Act and therefore invalid because she determined that the Surrey School Board had been influenced by religious belief and ” had passed the Book Ban Resolution for reasons that were not ‘strictly secular,’ as mandated by s. 76.”

However, the case was taken to the B.C. Court of Appeal, where Mr. Justice Mackenzie overturned the decision of Saunders, stating that, “A religiously informed conscience should not be accorded any privilege, but neither should it be placed under a disability.” He held that the word “secular” ought not to be used to silence and exclude those with religious beliefs. “No society can be truly free where only those whose morals are uninfluenced by religion are entitled to participate in deliberations related to moral issues of education in public school,” he wrote in his decision.

Now, the case goes to the Supreme Court of Canada. Mary Polak, the chair of the Surrey School District said that parents are disappointed. “We thought that the case was closed especially as the deadline to appeal the case was past.” In fact, it was 70 days past the deadline when the petitioners for appeal filed their application for an extension and for leave to appeal. The fact that it was granted came as a shock even to the appellants; Joe Arvy, the council for Chamberlain was astounded.

Supreme Court Justice L’Heureux-Dube, who is a prominent figure in the gay rights movement, was clearly the deciding factor in the decision to grant the appeal. She chaired the panel of three justices that decided to hear the case despite the missed application deadline. Her activism in gay rights is well known. One of her most open professions of support was at a lawyer’s conference in Oxford, England where she spoke in favour of legalizing gay marriages. “The day has not yet come when all laws in Canada recognize same-sex partnerships as equally worthy and valuable as those between members of the opposite sex,” she told the audience. Encouraged by Justice Michael Kirby of the Australian High Court, who is openly gay, to use ambiguity in the law to further gay equality, Justice L’Heureux-Dube claimed that she is “not afraid to strike down laws.” Her outspokenness on a matter of profound political and social contention should cause Canadians to wonder about her ability to render impartial judgment in cases that involve gay rights.

The significance of the Chamberlain case will be far-reaching. According to lawyer Iain Benson, it is very important and wide-ranging. “It calls us to reevaluate the term ‘secular,’ which most people, including religious, use incorrectly.” Benson told The Interim that “secular” properly understood is the realm of competing faith claims, not a realm of purely atheistically driven ideology.

The proposed date for the Supreme Court hearing is Oct. 28, 2002.