Supreme Court
Marc Hall case implications
By Fr. Alphonse de Valk, C.S.B.

Hardcopy Issue Date: July/August 2002
Online Publication Date: Aug 2, 2002, 10:43

In our June issue two contributors reflected on the then upcoming case of the 17-year-old student in a Catholic school in Oshawa who wanted to take his 21-year-old boyfriend to the graduation dance. In this issue, we reflect on the case after Judge R. MacKinnon of the Ontario Supreme Court ruled on May 8 that Hall and his "friend" (they have broken off their "friendship" since) could attend the prom.

Hate the sin but not the sinner
June contributor Donald DeMarco laid before us the views of the media by example of Kitchener TV personality Wayne McLane who pronounced throughout his show that "the Catholic Church is dead wrong." Regarding the question "is homosexuality a sin?", he treated the distinction between "hate the sin" and "love the sinner" with scorn and incomprehension. Marc Hall, too, stomped on this concept by using the carefully prepared phrase "It seems to be all right to be gay but not to act gay." Hall's lawyer David Corbett used it to good effect during the hearings before Judge MacKinnon: It's nonsensical to say "It's all right to be gay as long as you don't act gay." By using the same word in both parts of the sentence, in this case the word "gay"-which really means homosexual activist-the meaning has shifted. By Catholic teaching it is not all right to be gay.

The Globe & Mail, too, employed the same semantics. It's a "stalemate," the paper's editorial of May 8 stated, when you say "homosexuals are to be accepted, yet a homosexual lifestyle is to be opposed. "Again, the same sentiments had been expressed much earlier by the Ontario Press Council, when it acquitted an Ottawa Citizen columnist in the mid-nineties from the charge of hatemongering after he ridiculed and attacked the Catholic Church in his column, for what he considered the idiotic and impossible notion of hate the sin, but love the sinner. So this attack on a basic concept of Church teaching has been a long time coming and Judge MacKinnon concurred that the Catholic distinction made no sense.

This, therefore, is a serious matter for the Catholic community to consider. In my opinion we can no longer employ such expressions as "we accept homosexuals." We do not "accept" homosexuals; we do not accept their opinions, and we do not accept their pre-occupation with same-sex sexuality; they suffer, as the Catechism teaches, from "a disordered condition." We'll have to learn to say that we respect their persons in a new way, and not use the word accept.

Legal precedents in society
Our second June author, Rory Leishman, laid out recent Canadian legal precedents promoting new rights for sodomists. In 1995, the Supreme Court for example read into the Charter "the right of non-discrimination for sexual orientation" despite the fact that the framers of the Charter in 1982 had deliberately excluded sexual orientation from the equality clause. In 2001, the same Court ruled in the Trinity Western University case that teachers and students may uphold the religious belief of the sinfulness of homosexual behaviour on the campus, but that outside the campus "the freedom of beliefs is broader than the freedom to act on them." Judge MacKinnon quoted this court case in deciding that while the principal of a Catholic school controls the teaching of religion, that teaching does not extend to students at functions away from the school.

A legalistic view of religion
Here too, Judge MacKinnon has been influenced by the media. Pro homosexual Toronto City Councillor Joe Mihevic, a Catholic, was reported by the Star to have protested that he "didn't know of any church teaching or edict that would prevent someone from attending a dance or other event with a same-sex partner" (April 4/02). Because Mihevic teaches a course on social justice at the Faculty of Theology at St. Michael's College, the Star referred to him as "a theologian," giving his opinion extra weight.

Mihevic's theme was taken up by the Executive of the 34,000 member Ontario English Catholic Teachers Association (OECTA), a union which is on record as wanting to protect "sexual orientation." In Canada, neither "sexual orientation" nor terms such as "discrimination" are defined. So the main point that OECTA wanted to make about Marc Hall in the hearings was that the prohibition about attending the prom with a male friend was a more serious blow to the rights of Hall than giving permission would be to the religious rights of the Catholic School Board. In other words, OECTA was reflects the spirit which has prevailed in Canada since Trudeau's 1982 Charter, namely that the Charter of "individual" rights and freedoms is far more important than the rights-religious or otherwise-of institutions.

According to the Post, OECTA's president, Kathy McVean, declared first of all that OECTA wasn't supporting either side. It just wished to explore the constitutional question she said. In addition, OECTA intended to present evidence that there is no uniformity of opinion within the Catholic Church in terms of the kind of activity prohibited within Church teachings. . .There is a range of interpretations as expressed by Catholic theologians.

"Here I would like to make two points. First we have already seen the difficulty surrounding the current use of the term "theologian" (everyone seems to be a theologian). Could Joanna Manning, for example, be designated a theologian? Why not? She is a former nun, has taught religion in the Toronto Catholic School system for many years, and has contributed many articles to the Catholic New Times and the Globe & Mail. She has even written several books one of which is titled: Is the Pope Catholic? Place "theologian" Joanna side by side with theologian Pope John paul II and voilá, there is the evidence that there is no "uniformity of opinion" among Catholics or among Catholic "theologians".

This trick is well practiced among certain modern religious professors. Publish a book, say on the priesthood, select twelve professors of theology for their variety of views and get each of them to write an article; add that all of them are "well respected by their peers", then throw in an article on the same subject by Cardinal Ratzinger and Pope John Paul II. Treat them all as equals and behold, you will have demonstrated that the Catholic Church has no consistent teaching on the nature and office of the Catholic priesthood.

We are dealing here with a Protestant understanding of Church, namely the idea the a "Church" is formed when people get together and democratically decide what it is they will believe. It is, of course, not the Catholic understanding of Church, but it seems to be OECTA's understanding. "We are just pointing out that there is a range of opinions" says Kathy McVean (Post, May 4/02).

Pastoral care
My second point is that OECTA, and its firm of lawyers under Mr. Paul Cavaluzzo, are busy turning what is called "pastoral care" into a legal nightmare. Cavaluzzo's intervention-supposedly neutral and disinterested-proceeded by showing that there is no one policy in the Catholic schools about how to treat those who claim homosexual tendencies or who-as in the case of Marc Hall-declare themselves to be homosexuals. Thus, he presented two position papers (affidavits), one by Sue Laforet, Hall's religion teacher, the other by Larry Trafford, a former religion teacher and, today, Executive Assistant in Professional Development with OECTA.

Quoting from their submissions, Cavaluzzo had no difficulty showing that the field is open to different textbooks and experiences, some suggesting one thing, others suggesting a different course of action. These include views about dating, formation of friendship, etc. Having thus demolished-according to his own satisfaction-that there is no unity among Catholics about the treatment of homosexual students in schools, he could then claim that the Board's prohibition to attend the prom would cause the applicant to "suffer irreparable harm."

Judge MacKinnon took the bait. Yes, there was a letter from Bishop Anthony Meagher explaining the Catholic position; yes, he recognized that the bishop spoke authoritatively and on behalf of the Catholic Church, but unfortunately he the Judge could not be certain that Bishop Meagher's view represented even the majority of opinions within the Catholic Church; come to think of it, he rather doubted that it did.

Assault by the homosexual lobby
The parties in favour of Marc Hall's position were organized by George Smitherman, the openly "gay" Liberal MPP (Member of the Provincial Parliament), called upon by the Provincial Liberal caucus and its leader Dalton McGuinty to serve as point man for Hall. Smitherman was listed as the Plaintiff in the Court "in his capacity as litigation guardian of Marc Hall."

Their arguments were

that the school board is not above the law," and because Catholic schools are tax-funded they also must submit to the law (lawyer Douglas Elliott);

that this case is a clash between the rights of an individual against the Catholic Board's right to freedom of religion (Corbett);

that the prohibition violated Hall's freedom of association and freedom of speech and that the Boards's decision was contrary to the Education Act and the Ontario Human Rights Code. The last charge had already been made by Keith Norton, the head of the Ontario Human Rights Commission and himself a homosexual activist, when he told the Toronto Sun in early April: "It might be difficult for faith-based schools to argue religious freedom as a reason to discriminate against someone simply because they (sic) are openly gay. An individual may well be able to invoke the protection of the Human Rights legislation."

What was to be the solution according to the homosexual lobby? The Globe & Mail on May 8 spoke for all of them when it suggested that Catholics should challenge the Church into a "true acceptance of homosexuals" (and their lifestyle), presumably as the United Church and the Anglicans are doing.

Judge R. MacKinnon
Judge MacKinnon's ruling was 15 pages long. It was pretty well a summary of approval of what Marc Hall's advocates had proposed. He dismissed what the defence and the various affidavits on Catholic teaching had explained. In short:

The judge set the rights of the individual (Hall) against and above the rights of the Board;

He found that there was nothing in the Catechism about proms or dances;

He ruled that as there was no homosexual activity involved in the dance, there was nothing inappropriate about bringing a same-sex friend to a prom;

He declared that as the Education Act in use in 1867, the time of Confederation when "Separate" schools were set up, said nothing about proms or dancing, school principals in 2002 should say nothing either;

He rejected Bishop Meagher's statement as regulatory, and accepted OECTA's pleading that there are many different opinions in the Church;

He asserted the role of the state in publicily funded institutions in prohibiting "discrimination." The issue
The day before the judgment, Douglas Farrow of McGill University's faculty of religious studies wrote a thoughtful article (Globe, May 9/02). In his view, the legal suit against the Catholic Board was not a defence, but an attack. March Hall, he said, has nothing to defend, since he was free to enroll in another school, or stay away from the prom altogether. Rather, "the case is a bold attempt to seize and to occupy a symbolic role in an attack upon the Church's right to teach its view on homosexuality and to act upon it." That interpretation is shared by others. Catholic Civil Rights League President Professor Tom Langan sees the ruling as a direct attack on Catholic rights and religious freedoms. He was especially alarmed by the Judge's claim that an authentic Catholic position as stated by the Bishop can be subject to scrutiny as being "not the only Catholic position." The Court is sending the message that it knows better than the Magisterium what Catholics can and cannot believe in.

Finally, one may ask: did Judge MacKinnon study the matter carefully? I would say no. There were several position papers which explained the Catholic position very well. One was by Dr. Daniel Cere of Montreal's McGill University and its Newman Institute of Catholic Studies. It was exceptionally well done. This lengthy paper gives a splendid explanation of the Catholic perspective on homosexual orientation and conduct. Among his many observations:

Catholic educational institutions cannot embrace and support forms of conduct that would be antithetical to the goals of chaste married, single, or celibate love.

Respect for persons of homosexual orientation is basic for Catholic educational and health care institutions. Non-discrimination does not, however, imply that the particular actions, claims, or policy demands of homosexuals. . .must always be recognized and affirmed.

The Catholic tradition does not treat "orientation" as a defining characteristic of human personality that "determines" conduct. The Catholic tradition always insists on the fundamental freedom of the person.

Non-discrimination does not imply that the school has to accommodate certain forms of public conduct that may be incompatible with the institution's mission and religious commitments.

The suggestion "that the Catholic prohibition on homosexual acts would only be violated if the prom actually included sexual intercourse involving students and their guests" misunderstands the Catholic teaching. . . All forms of courting or romantic liaisons are morally inappropriate if progression to marriage is absolutely closed. Question
Ms. Kathy McVean, the President of OECTA, thought a court ruling could affect Catholic teachers who declare they are gay. What, she asked "is and what is not sexual behaviour? Is declaring yourself to be homosexual sufficient grounds for some sort of disciplinary action? (Post, May 4).

The answer to this, I believe, in the light of the above-mentioned points, is yes. For a teacher to declare himself "gay," that is homosexually active, is a declaration that he rejects Catholic teaching. He should be dismissed. A teacher promoting pro-homosexual views without declaring himself a homosexual should also be dismissed.

The Catholic community has a great deal of work to do. Pro-lifers have long objected to the so-called homophobia workshops in Catholic schools and to AIDS/HIV programs which undermine Catholic teaching. Will the bishops organize a defence of Catholic teaching, not only in theory but also in practice! Will they take the lead in rallying the Catholic community in defence of Catholic schools? Organize workshops? Call for prayers? Write and distribute pastoral letters?

Will the trustees get to work? And those teachers who disagree with OECTA?

Nota Bene: Teachers' union threatends free speech
Vancouver-In May, Chris Kempling, public school counsellor in British Columbia, was declared guilty of conduct unbecoming a member of the B.C. College of Teachers. His crime: writing letters to editors objecting to the promotion of a homosexual agenda in the public schools, and writing private letters to supervisors and elected officials. He is appealing the ruling.

Kempling objected to the use of the "gay" newspaper Xtra West, which carries obscene and vulgar ads, as a classroom resource. He objected to the use in school of propaganda from the Gay and Lesbian Educators of B.C., published and distributed by the B.C. Teachers Federation.

Other B.C. Teachers opposing the homosexual agenda are being questioned and intimidated in secret meetings.

Action
Contact Ted Hewlett, President of B.C. Parents and Teachers for Life: . Also write: B.C. College of Teachers, 405-1385 West Eigth Ave., Vancouver, B.C., V6H 3V9. Fax (604) 731-9142. Contact your local MP or MLA.

P.S. In Ontario's Catholic schools, dissenting tteachers are also browbeating and intimidating teachers who defend Church teaching, including teaching against homosexual activity.