The Distinction Between Law and Morality

Since it seems to be beyond Bishop Henry to draw a distinction between law and moral equivalence, I'll try to spell it out for him.

Once again, Bishop Henry draws out a false slippery slope argument, little different to his assorted, and irrational tirades about SGM:

McLachlin writes that indecency may be conduct that i) interferes with a person's autonomy or liberty, ii) pre-disposes others to anti-social behaviour or iii) causes physical or psychological harm.

Further, the harm must be "of a degree incompatible with the proper functioning of society."

There are a number of problems with the reasoning of the justices.

If they thought it was difficult to define indecency, just wait until they have to struggle with defining "harm" within their parameters.

This new standard will be even more problematic.

Of course, the good Bishop is attempting to draw an equivalency between the ambiguous notion of indecency and the notion of harm. What the Bishop (having clearly not fully understood the case history upon which the ruling is based upon) has missed is that the courts have a long history of assessing and understanding the legal notion of harm. It is a notion that has a solid rooting in law and the practice of law.

Just to play in the Bishop's own little playground for a moment or two, it's pretty darned easy to apply a measurement of harm. If Robert Pickton is convicted, it will be indisputable that his actions harmed his victims. Similarly, there is little doubt that pedophile priests harm their victims, or that a pimp's enterprise is harmful to the prostitutes they attempt to control.

By comparison, what goes on between consenting adults is another thing altogether. While something may be perfectly legal, that doesn't make it moral or ethical. A case in point would be the established behaviour of various members of the Chretien-era PMO during the "Sponsorship Program". While neither moral or ethical, their actions were not clearly illegal either.

Continuing along his argument of an increasingly slippery slope, Bishop Henry skewers himself on his own logic:

The saddest part of the justices' decision is their misunderstanding of human nature and human sexuality.

Passion will continue to rage within the human breast, and reason and religious conviction will try to get the upper hand until the end of time.

But once unlimited opportunity for sex is available, the contest becomes unequal.

The last barrier to fall is social sanction.

The moment society stops saying that sex outside marriage (one's own marriage) is sin, injustice, or reprehensible conduct, but says instead that sex of any kind is available to everyone in the normal course of things regardless of state or circumstance, then sex outside marriage will "happen" more and more.

First of all, the courts aren't in the business of measuring human nature and sexuality. At most, they may consult from time to time with mental health professionals to understand the behaviour of someone appearing before them.

Then, Bishop Henry comes out and plays his cards as if he holds some kind of trump, asserting that sex outside of marriage warrants proscription. Once again, we are confronted by a member of the Catholic Priesthood trying to dictate to the masses what the rules around their sexuality should be. Coming from someone who is forbidden by their own vows not to be a participant in the sexual aspects of society, it seems a trifle unreasonable to dictate to the rest of society how we should conduct ourselves.

Legal sanction issues aside, what Bishop Henry has completely, and utterly misunderstood is that the Justices of the Supreme Court made no moral declaration about the behaviour in those swinger's clubs. They simply ruled on the application of the sections of the criminal code that were applied and determined that the measurements available did not suggest a criminal behaviour. I don't think this is exactly complicated to understand. Society is still free to decide that the activity itself is undesirable and to broadcast its disapproval.

I submit that if the Bishop wishes to demonstrate the supposed dangers of the behaviour that he is so worried about, it is time for him to engage in some real study of the subject. The kind of dispassionate study of a population that routinely undertaken by researchers in sociology and psychology. If the empirical results show the kind of "damage" that Bishop Henry claims, then there is a measure upon which the assertion of harm can be based. However, if the empirical results show otherwise, the good Bishop can shut up about the subject, and reserve his moralizing for the congregations that fall under his purview.