Opinion

April 5, 2012 (LifeSiteNews.com) – So Xtra now proclaims that “the coalition that helped [Marc Hall] win his case [in 2002] has reassembled once again to support students in their ongoing fight for gay-straight alliances (GSA)”, even as it lists, in the same news story, another one from its archives that has as its title “Hall drops case against Catholic school”.

Many regular visitors to LifeSite will recall the Marc Hall case.  This was the case of the 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 Shaughnessy 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 of the Action, which was scheduled for October 11, 2005. 

If this “coalition” is going to hang their hat on the decision of Justice MacKinnon in granting the interim injunction in challenging the right of Catholic schools to regulate the activities of GSAs (which the Ontario government itself describes as co-curricular activities), then I respectfully suggest that they get better lawyers who are able to think past gay activist ideology and accept the legal reality that higher Courts have rejected his approach to these questions.

Shortly after the decision to permit the Action to be discontinued, I expressed the opinion that, even disregarding cases like Amselem, no reasonable Court, even the most activist Court, would have the audacity to suggest that it is “bound”, by the principle of stare decisis, to follow the reasons of Justice MacKinnon in resolving these new issues.  As Justice Shaughnessy himself assured the defendants:  “…njunction 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 passing, Justice Shaughnessy confidently also said that if the matter had proceeded to trial, the defendants would have won at trial.

In my 2003 article on the Marc Hall case, I argued that Justice 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 Marc’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] 2 S.C.R. 551 validated these criticisms.  The majority of the Court said:  “[T]he 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.” [para. 50].

Adding to this the likely influence of several subsequent human rights tribunal decisions that have applied the principles laid down by Amselem, and the 9-0 decision of the United States Supreme Court in Hossan-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. (decided January 11, 2012), I am fairly confident that no Judge in the future will be able to justify “trolling about” the religious beliefs of the litigants in the way Justice MacKinnon did in the Marc Hall case. 

The coalition needs to realize that Ontario students who believe that they have a same-sex attraction have a legal right to a tax payer-paid education that is either secular or Catholic, but not the right to insist that Catholic schools be secular.  When they choose (or their parents choose for them) to attend a Catholic school, they have nothing more than the right to receive an authentically Catholic education, and Catholic ratepayers have a constitutional right to insist that it remain authentically Catholic.  They cannot complain that the school is Catholic, and cannot complaint that they will be harmed by it, because all they have to do to avoid having to hear Catholic teaching is to switch to the other system.  Student leaders chosen to lead these groups will be given a teaching role in the school.  It is beyond dispute that the Courts recognize the superior denominational rights of Catholic schools to ensure that the curriculum is consistent with Catholic teaching and to prefer to employ teachers who adhere to Catholic teaching over those who do not.  It should not be difficult to understand that these denominational rights extend to all curricular activities in the school.

Geoffrey F. Cauchi, LL.B., practices law in the City of Mississauga, Ontario.

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