Charter rights of religious institutions are at issue

Regular readers of The Interim and Catholic Insight will recall the 2005 Marc Hall case involving a young homosexual who obtained an interim court injunction ordering his Roman Catholic high school to permit him to attend the school prom with his homosexual partner. This injunction was granted in the course of his action against the Durham Catholic District School Board for $100,000 in damages.

This case came to an abrupt halt on June 29, 2005, when all the parties to the litigation appeared before Mr. Justice Shaugnessy of the Ontario Superior Court of Justice, who ultimately issued an order permitting Marc Hall to discontinue his action against the school board and the principal before trial, which was scheduled for Oct. 11, 2005.

Thereafter, some expressed concern that the earlier decision of MacKinnon in granting the interim injunction would serve as a precedent for similar legal proceedings in the future. In my opinion, no reasonable court, even the most activist one, would have the audacity to suggest that it is “bound” by the principle of stare decisis, to follow the reasons of MacKinnon in resolving the same legal issues raised in the Marc Hall case. As Shaugnessy himself assured the defendants: Injunction “reasons are not often accorded great weight, as they are written on an urgent basis on limited material and the legal issues, out of necessity, are dealt with in a cursory and preliminary manner.”

In an article that appeared in Catholic Insight at the time, I argued that MacKinnon, on legal principle, ought not to have made enquiries into Roman Catholic doctrine, or, at the very least, not preferred the testimony of dissenting Catholics over the testimony of the local Catholic bishop on the requirements of the Catholic faith in dealing with Hall’s request for permission to attend the prom with his homosexual partner. In my opinion, the subsequent Supreme Court of Canada decision in Syndicat Northcrest v. Amselem, (2004) validated these criticisms.

The majority of the Court said the “state is in no position to be, nor should it become, the arbiter of religious dogma.” Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation,” precept, “commandment,” “custom or ritual.” Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.”

I am, therefore, fairly confident that no judge in the future will be able to justify “trolling about” the religious beliefs of the litigants in the way MacKinnon did in the Marc Hall case. That said, there is still a core issue that remains to be adequately considered by the courts. Is a separate school board a “government actor” or a “private entity” or perhaps both, depending on the context, for Charter purposes? Do separate school boards and their trustees and employees have Charter rights when they are dealing with Roman Catholic doctrinal issues or do they only have Charterobligations to their students?

In the face of the rising tide of “convergence liberalism” recently described by lawyer Peter Lauwers, this is an important question, because the answer to it will determine if, and if so, the extent to which the courts and the state will be able to compel separate schools, and, indeed, private, religiously based schools as well, to treat and teach their students in a manner that is inconsistent with their belief systems, particularly with respect to students who claim they have a same-sex attraction.

There are strong arguments grounded in the Charter and the Supreme Court’s precedents supporting the position that the courts have no business coercing separate and other private schools to act in a manner that contradicts their foundational religious principles, but will the courts honour these precedents in the face of pressure from homosexualist activists?

As I stated in my article, Yale law professor Stephen L. 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.” Having completed a “religious cleansing” of the public schools, the next logical step of state-enforced liberalism is to start pressuring private organizations, including churches and their schools, to accept the same beliefs propagated by the public schools. We should expect that the separate and private schools will be just one battleground among many between the contemporary liberal state and the religions in a broader “competition to explain the meaning of the world.”

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.” The response to date of Canada’s secular courts doesn’t give me much confidence that, ultimately, their answer will be “yes,” but we shall see.

It is the writer’s view, shared by other commentators like Professor Carter, Richard John Neuhaus, and, more lately, Peter Lauwers, 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.

Geoffrey Cauchi practices law in Mississauga, Ont.