Slightly edited version appeared in the Montreal Gazette Dec. 30 2002


Daniel Cere


Are there limits to the power of the nine scarlet-robed justices of the Supreme Court?   Very little, it seems.   In a recent address Chief Justice McLachlin proclaimed that “the rule of law exerts an authoritative claim upon all aspects of selfhood and experience in a liberal democratic society… It makes total claims upon the self and leaves little of human experience untouched.”  (“Remarks of the Rt. Hon Beverley McLachlin,” McGill University, Oct. 11, 2002).

In the recent judgment on Chamberlain v. the Surrey School District  (Dec. 20, 2002) we get a glimpse as to how intimate and intrusive this power can be.  The judges enter the fray about what our children in kindergarten should be reading.   Should these little folk be instructed about same-sex parenting unions?  In British Columbia, two gay elementary teachers pushed for the imposition of gay parenting reading material recommended by the Gay and Lesbian Educators association.   Parents of the Surrey School District argued that such material was  inappropriate for their children.  The parents reflect the very rich  cultural and multi-faith complexity of the Surrey community (Christian, Sikh, Muslim, Hindu, etc.).  When the Surrey School Board responded to parental concerns, the gay teachers took the issue to court.  When the British Columbia Supreme Court reaffirmed the wishes of the parents and the Board, the dissatisfied teachers pressed on to the Supreme Court of Canada.   

 The judges of the Supreme Court of Canada decided to place themselves between parents and their children and to side with those pressing for the inclusion of gay parenting literature.  The decision clearly signals that the role of parents as primary moral guides for their children’s education is now “subject to judicial review” by our nine lords of the law.   Dissenting Justices Gonthier and Bastarache valiantly tried to reign in this latest act of judicial activism. But to no avail.   

This recent judgment advances a judicial crusade to mandate a form of sexual relativism as the moral code for Canadian society.   John Fisher,  director of Egale, Canada’s major gay and lesbian advocacy group, celebrated this decision as “an unequivocal victory” for “lesbian, gay, bisexual and transgender Canadians…in that it affirms the right of children to a bias-free curriculum that teaches the values of equality, tolerance and respect for diversity.”   According to this view, a form of sexual pluralism must be imposed upon the malleable hearts and minds of our five and six-year-old children.  Chief Justice Beverly McLachlin comforts us with the reassuring words that this kind of enforced sexual tolerance and relativism is “always age-appropriate.”  In its paternal wisdom Supreme Court now requires that the winds of relativism blow freely through their little lives while the cold hand of the law firmly shuts the door to parental concerns and expectations.

Our judges appear to be interpreting the Charter to mean that they now have magisterial authority over wide domains of public morality.  Who gave them this sweeping authority?   What wisdom, what right, do these lawyers have to determine fundamental moral questions?  Who knows?   But it seems that our schools, families, parliaments, and religious traditions must now defer to the authority of the courts as judges systematically enforce their cherished values into intimate nooks and crannies of our public lives and controversies.   The role of our public institutions now seems to be confined to implementing a thin, moralizing, and doctrinaire liberalism emanating from these legal elites.  

The majority opinion did give a polite nod to the existence of alternative moral visions stemming from religious traditions.  However, in the McLachlin court “freedom of religion” is vaporized into a myriad of conflicting subjective convictions that effectively cancel each other out.  The robust trees of our religious and cultural traditions are hewed down and relativized in order to serve as mere grist for a new moral matrix that celebrates and entrenches diversity as an end in itself.  

The fact that the Supreme Court dares to place its judicial hands on the moral lives of our five and six-year-old children does seem particularly shocking.   However, it can be read as part of our broader cultural project to deregulate sexuality and marriage.  The project of deconstruction is advanced in the name of all kinds of good things, like “tolerance,” “respect,” and “diversity,  and so on.   But the long and the short of it is that the ordinary life of marriage and family carries no real weight.  It must be repositioned as one somewhat quaint and dated product in the ever-expanding sexual market of adult options.  Customary codes that dare to suggest a moral tempering of ever-expanding adult choices are dismissed as judgmental and stigmatizing. 

The Chamberlain v. Surrey decision is one more chapter in the big-tent sexual relativism now being mandated as the law of the land.  Even the tiniest of tikes must be taken aside and properly instructed in these slippery values.   For some time the courts have been busy appropriating the role of our parliamentarians and legislators.   Now parents are shoved aside as our imperious judges step forward to guide the moral formation of our children.