I’m just reading through the latest Supreme court decision on allowing “Keeping common bawdy-house – Indecency – Harm-based test – Group sex in club – Whether conduct constitutes criminal indecency – Criminal Code, R.S.C. 1985, c. C-46, ss. 197(1) “common bawdy-house”, 210(1).”
I am not surprised but still scared with a number of comments.
One is that we have moved from the test for indecency based on community standards (a hard one to comprehend in the best of circumstances) to a matter of harm ( “by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming persons involved in the conduct.” – from the preliminaries of the SCC decision).
We have moved from a normative standard to a constructed standard. Now, these are interesting concepts to discuss (check out my theology blog for some thoughts on this area). But what it comes down to is the fact that in a pluralistic society we are erasing religion from consideration.
Note the following statement: (section 34/35) –
34 The complexity of the guarantee of freedom of religion in this context requires further comment. The claim that particular sexual conduct violates particular religious rules or values does not alone suffice to establish this element of the test. The question is what values Canadian society has formally recognized. Canadian society through its Constitution and similar fundamental laws does not formally recognize particular religious views, but rather the freedom to hold particular religious views. This freedom does not endorse any particular religious view, but the right to hold a variety of diverse views.
35 The requirement of formal endorsement ensures that people will not be convicted and imprisoned for transgressing the rules and beliefs of particular individuals or groups. To incur the ultimate criminal sanction, they must have violated values which Canadian society as a whole has formally endorsed.
By the nature of the decision, the religion of Canada has become that which the constitution and other fundamental laws state is our concensus of the values and morals of our country. If there ever was a time to recognize the place of the legislative bodies of our country, this is the time!
But, is there a higher law? That is indeed the great question of the day – which begs the question of why we say that we are “under God.” If we are under God we do not construct laws and constitutions based on cultural norms, but rather we seek to understand and interpret laws that are already established in who God is and the resulting implications thereof.