The Separation of Church and Date: Destabilizing Traditional Religion-Based Legal Norms on Sexuality

Abstract

The 2002 case of Hall v. Powers brought into sharp focus the conflict between the constitutional guarantees for religion and for non-discrimination on the basis of sexual orientation. The case arose out of the desire of a student, Marc Hall, attending a Roman Catholic school in Ontario, to take his boyfriend to his high school prom. Because the boyfriend was not a student at the school, Hall was required to submit the name of his date to the school for approval. The principal denied Hall permission to attend the prom with his boyfriend, and the school board refused to reverse the principal's decision. Hall sought an interlocutory injunction - granted by Ontario's Supreme Court of Justice at the eleventh hour, just before the prom was to begin - restraining the defendants from preventing his attendance at the prom with his boyfriend. The Hall case serves to bring into focus issues that have been developing for the past ten years on just what it means to give constitutional equality protection to gays and lesbians and how that-protection can "fit" with other constitutional guarantees. The deep-seated-traditional norms, many of them religion-based, that lay in the background in the other cases and were there only indirectly raised, come to the fore in Hall: the relationship between children and homosexuality, and between religion and homosexuality, the conflict between equality and other constitutional guarantees, the legal characterization of homosexuality (an issue of morals or-of equality?), the meaning of equality. In this paper the author explores some of-these facets and the tension they generate.

The author suggests that in the context of the cases on sexual orientation, the jurisprudence in the past decade has tended towards a sharpening of focus in-the tension between the goal of sexual orientation equality and certain-religious views. Although those religious views remain largely unchanged, the legal and social position of minority sexualities, particularly homosexuality, has changed.

Another development to note is that the controversy that attended gay and-lesbian issues only a decade ago is now beginning to turn to other issues of-sexuality. No doubt much of the litigation in those areas will follow the pattern of the gay and lesbian cases and those cases will be relied on. The early cases in each new category of sexuality will tend to be ones of definition or assignment of status; the later cases will tend to be about place in-institutions and social participation. The legal response to issues involving gays and lesbians will not necessarily presage the answers that will be forthcoming for issues involving other sexualities. The tension with religious positions will, however, I suggest, be-similar.

With the Hall case providing a focal point in this paper, the author comments on the following issues that arise out of the litigation on sexual-orientation equality and the challenge that litigation and equality presents to established religion-based norms:

1) the scope of equality and whether it extends to purely celebratory issues such as a high school prom; 2) whether a case about gays and lesbians should really be characterized as one of morality or of equality; 3) the tension between constitutional protections of religion and sexual orientation; 4) the concern that decisions in favour of plaintiffs like Hall will open the floodgates to similar claims from other "deviant" sexualities who claim similar positions.

In many respects, these issues overlap and, therefore, the divisions used are for ease of exposition rather than because the issues themselves demand it. There is a principled response to-each of these issues that should be borne in mind by judges and legislators who are called on to decide such issues. The question of how situations involving other sexuality issues should be addressed is, however, more-complex. While they will certainly raise similar issues, whether the response should be the same is another question.

Keywords: Homosexuality, Relgion, Sexual orientation, Discrimination, Canada, Church and state