Marc Hall’s Legal Jam

Will charter bid doom gay Catholic rights?

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During the hugging and cheering at the Marc Hall victory celebration last Saturday afternoon at Church and Wellesley, a moment is taken to thank all those who have helped out. It’s a long list. (Was there anyone except the Durham Separate School Board who wasn’t on the side of the scrawny kid with blue hair and acne who wanted to take his boyfriend to the prom?) Many wave the Maple Leaf. Aren’t we a great and enlightened country, and isn’t Marc Hall’s victory a testament to the power of the Charter Of Rights? As lawyer Douglas Elliott of the Coalition in Support of Marc Hall says with unlawyerly passion, “For the first time, we have a court order to prevent discrimination before it happens.”

Almost as an afterthought, thanks go to the Catholic teachers union for its help in making the Marc Hall victory possible. But many might well wonder why any kudos are owing them at all. The Ontario English Catholic Teachers Association (OECTA) — veterans of many anti-Tory social justice showdowns — could at first blush be considered out-and-out cowards for the way they intervened in the Hall injunction case.

Their lawyers argued that they accept Catholic catechism to the effect that “homosexual acts are intrinsically disordered,” and posited that it is OK to be gay so long as you don’t have sex — thus making Hall’s prom intentions allowable because there was to be no genital contact. Not exactly a reassuring line of reasoning for those hoping for an end to sexual bigotry.

The other part of their intervention hinged on demonstrating that there is no single position within the Catholic school community, but rather a range of opinions about what constitutes inappropriate behaviour and what it means to be “chaste.”

Interviewing OECTA president Kathy McVean, I get lost in a maze of equivocations. “We did not take a position on either side,” she says. “We do not question Church teaching, but simply put forward the view that there’s a diversity of opinion as to how particular teaching might be applied.”

But ironically, the wishy-washy case put forward by OECTA may shockingly end up being more serviceable to the Hall side than the much more dramatic Charter Of Rights argument when the actual trial starts. (The injunction allowing Hall to attend the prom was merely the opening shot.)

While many observers are excitedly anticipating that a Charter challenge in this case will trounce publically funded discriminatory practices once and for all, there’s a large body of legal opinion that isn’t so confident.

In fact, many experts believe invoking the Charter in this kind of case is very problematic given the guarantee of denominational education in the BNA Act, the original 1867 constitution. The Charter of Rights even states that nothing in its sacrosanct list of rights can take away from the dusty religious rights bequeathed at Canada’s birth. Previous Supreme Court decisions have upheld the right of Catholic schools to fire teachers for their lifestyle. One case involved a teacher who had children “out of wedlock.”

Victoria Paris, a lawyer for the Coalition for Marc Hall, which invoked the Charter argument for the injunction hearings, concedes that if the court finds that the 1867 promise of Catholic schools (section 93) does apply in this case, the Charter would no longer be useful. That’s why she believes the kind of arguments offered by the OECTA intervention are critical. “OECTA highlighted that there was a diversity of opinion in the Catholic community, and the judge seemed to be concerned with that,” she says. “I think if he was to apply section 93, he would have to be convinced that (Catholic theology) was a uniform belief.”

Paul Cavalluzzo, the lawyer who dissected ex-preem Mike Harris at the Walkerton water inquiry, acted for OECTA in the Hall matter. As Cavalluzzo says in an interview, it’s not enough for the Church to say we have section 93 and that’s the end of it. They must also bring evidence to prove that merely allowing a gay student to bring a same-sex date prejudices their rights. But if many Catholics aren’t upset by it — the diversity argument — how does that impair religious rights?

According to the lawyer for the party-pooping Catholic school board, Peter Lauwers, for all the sympathy lavished on Hall, the prom caper was as much an affront to the Catholic system as taking the Church catechism to the centre field and burning it. “No one would dispute the Church’s right to discipline a student who did that. What makes the case different,” Lauwers says, “is that Marc is a sympathetic person and he is in a minority that is also a sympathetic minority. But that is not a legal decision.’

Many supporters of Catholic education believe Lauwers is too hardline and that the Hall case will create a backlash against the public funding of Catholic schools. Catholic teacher James Ryan, an incoming member of the OECTA provincial executive, points out that while the Church teaches that the gay sex act is wrong, it also disapproves of heterosexual intimacy that does not have the possibility of leading to new life. And it says gays and lesbians are not to be discriminated against. The implication of the Durham policy, he says, is that to dance with a same-sex date is tantamount to having sex. “If that’s the case, no one should be dancing, not even heterosexual kids.’

Of course, none of this is new to Lauwers. “There’s as much diversity among Catholics as among the general population. But the Church is not a democracy and never has been.’

Lauwers evidently thinks he’ll win at the Supreme Court of Canada, where the case will probably end up. Let’s see what the Supremes, who have ruled in the past that the Charter has to be interpreted in a “generous manner,” think of talk like that.

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