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Civil rights could trip at the prom

The Globe and Mail, 9 May 2022

Just as the famous Tennessee “monkey” trial was not really about the defendant, John Scopes, the lawsuit against the Durham Catholic District School Board is not really about the plaintiff, Marc Hall. Mr. Scopes was a science teacher and coach, who wasn't sure that he had, in fact, taught the theory of evolution, though some Tennessee teachers certainly did. The case against him was arranged by the American Civil Liberties Union as a test case; the defendant himself was never in any danger of actual harm or loss.

Mr. Hall, for his part, is unsure (for the purposes of the suit) whether he engages in homosexual acts, which he admits would be contrary to Catholic teaching. He only knows that he is homosexual, and that he would like to take his boyfriend to the prom, where he promises that no sex acts will occur. His suit, it seems, has been designed to test the limits of the Catholic Church's resistance to homosexuality, just as the Scopes case was arranged to test the limits of resistance to evolutionary theory in public education.

The Prom case presents itself in non-symbolic terms. Mr. Hall, we are told, is not trying to overturn Catholic teaching, which he and his supporters argue is too vague to be overturned in any case. He's only trying to get to the prom with his date. Thus the case turns on resolving an apparent conflict “between an individual Charter right to equality and the constitutional denomination rights of Catholic school boards,” as Paul Cavalluzzo, lawyer for the Ontario Catholic teachers, puts it.

This is disputable, and is being disputed before the court. It is precisely the symbolic dimension – the Scopes factor – that makes the case interesting. Mr. Hall's suit cannot be a defence of his individual liberty, since that has not been challenged. He is not obliged to attend this school, or to attend the prom with a girl, or even to attend it at all. Since the choice of school was his, it canot be a defence of his right to equality or to freedom from discrimination. Arguably it is not a defence at all, but an attack: a bold attempt to seize and to occupy a symbol of his community's beliefs and social fabric.

It is disingenuous to disavow the symbolic nature of the Prom case, or to deny that it is really about an issue, homosexuality, rather than a person, Marc Hall. It is likewise disingenuous to pretend that it does not challenge the Church's teaching about human sexuality. In fact, Mr. Hall is wrong about that teaching. It is not the Church's position that there is nothing wrong with homosexual orientation, so long as one does not undertake homosexual acts. The orientation itself is understood as a disorientation, one of many deleterious effects of the Fall such as afflict us all.

What is at stake in the Prom case, disguised in the hired tuxedo of equality rights, is whether or not the Church is entitled to hold such a view, and to act upon it in public, institutional ways. And, conversely, whether or not the courts have any mandate to adjudicate or alter religious doctrine, or to determine which vision of human sexuality should prevail in public life.

But this means that the Prom case is really a freedom-of-religion case. There is a deep irony here. Those who think it obvious that Mr. Hall, like Mr. Scopes, must be vindicated should think again. The Prom case, if ultimately settled in Mr. Hall's favour, will not promote but diminish liberty. Indeed, by attacking the Church's freedom, Marc Hall has attacked his own freedom – not only insofar as he himself intends to be a Catholic, but in that he intends to be the citizen of a country which will permit him to be a Catholic. Let's hope that this irony won't be lost on the court, lest in taking an illiberal step towards the suppression of religious freedom, it rules for Mr. Hall only to discover that it has, after all, ruled against him.

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