Ok, so sometimes, the broken system does manage to work, sort of.
[Credit:Tony Bock/Toronto Star]
The courts have ruled, and despite the bitter objection of the Catholic School Board, Ontario’s Marc Hall has been allowed to take his boyfriend to the school prom. If you live in Ontario, or simply read the Star
, the Globe
, The Post
, or just about any other paper, then the chances are you’ve been following this soap-opera of a human rights case pretty closely. I’ve personally watched this story grow slowly from the “in local news…” section of the Toronto Star to Front Page
(big color photo included) of the Globe and Mail.
Now, to be sure, this is a colossal amount of overhead and attention to be paid by the major papers to such an issue (isn’t there some kind of war on?), but at the same time, it’s a rare pleasure to see the legal system act in the way it’s supposed to, without bitter and prolonged legal battles (which may be still to come we'll see.)
Ontario’s – and Canada’s for that matter – law regarding rights and freedoms is an exercise in trying to have it both ways. We explicitly protect free speech, freedom of belief, religious freedom, freedom from discrimination, freedom from getting a wedgie at school and freedom from just about anything else you could possibly find the least bit personally objectionable, and we do it all in a big document called the (queue fanfare) Charter of Rights and Freedoms.
The most striking feature of the Charter is its ability to be so blatantly self-contradictory as to make no sense at all. How can we simultaneously guarantee people the right to express their beliefs, and the right not to be offended by what others have to say – all in the same document? The short answer is that we cannot. And it is because of this contradictory nature that the Courts of Canada find themselves in a constant battle to measure the value of one right visa-vi another. Case in point: Marc Hall’s right to be free of discrimination based on Sexual Orientation versus the Catholic School Boards right to, well… discriminate.
You see, to make the mishmash of wishful thinking that is the Canadian Bill of Rights even more complicated, the Province of Ontario has a historic, and wonderfully incestuous relationship with the Catholic Church that is undeniable unjust. We federally fund a separate, Catholic School Board with tax money (they claim – only catholic tax money, but push one thing one way, and another moves in the opposite, you get what I mean.) And moreover, we protect its right to administer its school in a fashion reflecting Catholic values and dogma.
All you other American style libertarians (I know your there, don’t deny it) are right now shouting “separation of church and state!”, and I whole heartedly agree. It’s a shame that we don’t have such a rule as an essential part of our legal framework in this Province, but instead choose to foster so called “religious freedom” by supporting the biggest church, instead of just leaving all religious institutions alone. The province of Ontario has been both protecting, and funding
the right of one religion to discriminate, to the exclusion of all others. It’s a wonder that such a powder-keg of human rights law has gone relatively unscathed until now, yet at the same time, there is something very appropriate about this issue coming to bare over such a relatively mundane issue- a high school prom.
When the injunction came through yesterday afternoon, it was praised as a victory for human rights by Hall’s Lawyer, and criticized as “bad law” by the school board. The fact is, however, that it was both. While it was undeniable the correct decision to protect Marc Hall’s right to take his boyfriend to his prom, it does not change the hopelessly flawed legal structure it was based on. The ruling essentially said that Hall’s human rights trumped the Catholic School Boards religious freedom – a conflict that should never have existed in the first place. Had Ontario not insisted on funding a Catholic School Board, and protecting its right to administer in accordance with Catholic rules, the this case of who’s more entitled to their rights then who would never have come to pass. But in true Canadian fashion, our Bill of Rights wants it both ways - freedom from discrimination for individuals and religious freedom for institutions. It is this contradiction that, while occasionally protecting our rights, will always create bad law.