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To approve or not to approve

The National Post, 27 December 2021

“To approve or not to approve, that was the question” facing the Surrey , B.C., School Board, wrote Justice Gonthier for the minority in the Chamberlain judgment. And apparently it will be again, for the majority decision was to remand the question to the Board for reconsideration. This time it will have to get its answer right, by sticking to “the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non-sectarianism underlying the School Act .”

It will be interesting to see whether the Board gets it right or not. Will One Dad, Two Dad s, Brown Dads, Blue Dads be approved for the K-1 kids of Surrey 's sad dads and mad dads? It will be far more more interesting, however, to see where our society as a whole goes from here, guided by the broad principles of tolerance and non-sectarianism. For the important thing about the Chamberlain decision is that it attempts to offer some clarification of these principles.

The Supreme Court of Canada has rejected the idea that the requirements of secularism and non-sectarianism (as found in the School Act ) render religious beliefs irrelevant in public schools. “Religion is an integral aspect of people's lives, and cannot be left at the boardroom door.” The problem with the School Board's rejection of the books promoting same-sex parenting as a valid family model is not that this rejection rested in part on religious reasons, then, but that it was “exclusionary” – that it offended against tolerance.

The clarification about secularism is welcome, as far as it goes. Secularism is not anti-religion, it is simply pro-tolerance. But how exactly shall we understand tolerance? This latter word and its variants occur in the judgment some sixty times – as, for example, in the following sentence: “The School Act 's emphasis on secularism reflects the fact that Canada is a diverse and multicultural society, bound together by the values of accommodation, tolerance and respect for diversity.” Words like accommodation and respect are regularly used to fill out its meaning.

The members of the Court agree, in Chief Justice McLachlin's words, that “the demand for tolerance cannot be interpreted as the demand to approve of another person's beliefs or practices.” (Or as Justice Gonthier puts it, the language of tolerance should not be employed “as a cloak for the means of obliterating disagreement.”) According to the majority, however, the demand for tolerance may indeed require approval in this sense: that those with whom we differ must receive “equal recognition and respect” not only as persons but, in some cases, as representatives of a valid way of life. In the case in point, the School Act is said to mandate both “mutual understanding and acceptance of all the family models found in British Columbian society and its schools.”

Now “all the family models” (a phrase not found in the School Act ) needs to be glossed, and is glossed, by a qualifying phrase that refers to a “lawful way of life;” for some family models may represent an unlawful way of life and so be disqualified. But with this qualification the Court has settled the question as to how the School Act should be read. Yet just here another and more important question arises, which has still to be answered: Is everything that is lawful equally profitable? And if not, should it be deemed worthy of equal recognition and respect?

To ask this more important question is to ask whether or not Canadian society, in aiming at being a fair and just society, can hope to be a wise one. Under law, all things lawful are equally lawful. What is more, under the Charter of Rights , all rights are equal; there is no hierarchy of rights. But when we pass from the confines of jurisprudence to the broad places of human prudence per se , a hierarchy appears – a hierarchy of goods – which the law ought also to take into account.

It is this hierarchy of goods which gives unity to every human life and to every society. Without identifying it and conforming to it, no person and no political body can expect to hold together for long. The problem with pure tolerance as a political or as a legal principle is that it simply doesn't work; it is devoid of cohesive power. It is a negative principle, not a positive one, and the attempt to transform it into a positive one is a colossal mistake. The Court didn't invent this mistake, of course, but under the influence (I would argue) of a still-flawed view of what it means to be a secular society, it appears to be making it when it opines that Canada is “bound together by the values of accommodation, tolerance and respect for diversity.”

The people of Surrey , like the people of Canada ­generally – if they are to retain a reasonably cohesive society – need to agree on a great deal more than that they respect diversity. Can they do so, can we do so, by following the path that the Court appears to be marking out for us? I do not think so. Down this path lies not increased understanding and supportive co-existence, but a loss of tolerance even in the narrower or more literal sense, of bearing with one another when we disagree. Alienation and frustration will eat away at tolerance, to everyone's great loss.

What a very long way we have already come in such a short time! I can still hear Pierre Trudeau, when accounting for his 1969 Omnibus Bill (C-150), pointing out that it is right and necessary to make a distinction between sin and crime. Indeed it is. But can we still do so? Or does the legality of something mean, ipso facto , that it is worthy of public support ­­– even that the public, qua public, may be bound to offer it some support?

To approve or not to approve, that is the question. By which I mean, not whether the Surrey School Board should approve or reject (on some new basis) three rather silly booklets, but whether or not our society has any basis for continuing to approve or disapprove of anything that is legal but morally disputed. If it does not, we are doomed to collective amorality, and to social and legal disintegration.

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