Canada is slowly being invaded by the US’s culture of right-wing grousing about other people’s liberties. The Canadian courts, however, have remained a bulwark for its citizens, and in a recent case not only made a powerful and important distinction regarding the rule of, and role of, law, but in doing so set what the opponents of liberty themselves refer to as a “precedent”. Let’s hope the courts take them at their word, and build on this example.

The case, like so many of America’s most important cases on liberty rights, hinges on an issue deliciously guaranteed to trip the right-wing’s sex-panic hairtrigger. The question was the Constitutionality (under Canadian law) of bans on sex clubs and “swinger” clubs. The Court properly found no good reason to be against them, and struck down the law. And the howling began.

LifeSiteNews – a sex-obsessed right-wing outlet that makes Fox look fair and balanced – puts it this way:

Last years’ Supreme Court decision to legalize swinger’s clubs and public group sex in Canada dangerously undermined the concept of “social morality” as a basis for future rulings, according to a review by Canada’s Centre for Cultural Renewal. . . .

The primary issue at stake is the court’s retreat from the concept of social morals as the standard for identifying criminal anti-social behaviour.

The court based the swinger’s club ruling on a standard of “harm”, determining that the club in question was permissible because it did not cause significant harm to the public and society.

“With its cryptic utterance that ‘our concern is not with the moral aspect of indecency but with the legal’, the majority abruptly attempts to sever the moral from the legal and tries to sidestep the appearance of moral reasoning altogether,” authors of the review state.

Reading between the lines, the ruling seems to correspond to the concept, in American jurisprudence, of a “compelling state interest” for a restriction on liberty. The Canadian court dismissed the notion of “social morality” – presumably what in America would be called “public standards of decency” – as a reason for imprisoning citizens engaged in voluntary and private behavior, to ask whether tangible and overt harms, such as public disorder or harm to persons, would result from the activity in question (i.e., people having orgasms); the Court reached the obvious answer and concluded that there was insufficient ground to uphold the law. The Court was thus doing much what Scalia objected to so harshly in Lawrence v. Texas: “effectively decree[ing] the end of all morals legislation”. The Canadian carpers seem to agree.

If indeed this ruling has “undermined the concept of ‘social morality’ as a basis for future rulings”, and establishes a “retreat from the concept of social morals as a [legal] standard”, this could not be better news for Canadians. A requirement that their laws be based on actual consequences of an act, and not merely the fact that some third party disapproves of it, could hardly fail to be a step forward. The non-coincidence that all such laws seem to revolve around issues related to sex only underlines the fact that these laws serve to impose one (tiny minority) group’s social vision on the rest of society. Scalia complained that, in refusing to enforce such impositions in Lawrence, the US Court had “taken sides in the culture war”, but it is obvious that both the Canadian and US Courts have merely declined to do so in their respective cases. It is the fact that they will not act as the enforcement arm of the right wing that the right wing is complaining about. Even so, if the right wing is convinced it cannot make a case for its restrictive lifestyle preferences persuasively, but only compulsively, there is no reason for the judiciary of any country to comply. That principle is only weakly established in the US, but this ruling from Canada is heartening.

The actual agenda of the “Center for Cultural Renewal” is only too clear:

“If the Court is tested again on the possession of marijuana for personal use…or on, say, polygamy, or incest between consenting adults (say homosexual sexual incest) how will it respond?  Will it move from the harm principle to a larger concept of social morality that may be contemplated in order to safeguard the values that are integral to a free and democratic society?  It has left itself little room to do so as the dissenting judges pointed out.”

Yes, the familiar litany: drugs, polygamy, incest, or, god help us, gay incest! (I’m not sure what is added by the phrase “homosexual sexual incest” – apparently it is to be distinguished from the heterosexual non-sexual incest that immediately precedes it – but it’s good to be clear.) I’m surprised they didn’t get as far as “man on dog bestiality”, but maybe Rick Santorum wasn’t available to read their first draft. Obviously, Canadian right wingers are as unhinged as American ones, and about the same subjects. They also are stuck on the same tired slippery-slope arguments that only reveal their own obsessions. We’ve seen too much of this on both sides of the border, and it’s worthwhile seeing some common sense in response.

Well done, Canadian Judiciary!