The courts & us

The current crusade against what’s called judicial activism has reached hysterical levels. Newspapers like The Globe And Mail and the National Post have painted a picture of a reckless judiciary, one that is using the Charter Of Rights And Freedoms to by-pass the democratic process. Judge-bashing has replaced gay-bashing as the right’s political sport of choice.

Recall the 1998 Vriend decision, when the Supreme Court gave Alberta six months to include sexual orientation in its human rights law. Rather than attack gay people directly, opposition to the ruling focussed on the court. The judges were accused of imposing their will on the legislature, and of re-writing the law. In attacking judicial activism, politicians and journalists seemed to carefully avoid targeting gay people themselves.

Lest we get too eager in our defence of the judiciary, enter Bruce MacDougall.

MacDougall teaches law at the University Of British Columbia. The premise of his new book, Queer Judgments: Homosexuality, Expression And The Courts In Canada is that, despite the relative progress gay men and lesbians have made in the courts, judges continue to portray homosexuality as “other.”

MacDougall’s close examination of 800 cases from 1960 to 1997 suggests that even decisions favourable to gay people often reinforce negative stereotypes.

The case D versus D is a good example of MacDougall’s argument that how a court says something is as important as what a court says. In granting custody to Mr D, a gay father, the Ontario court judge described Mr D’s personal life as “discreet.” Mr D did not “flaunt” his sexuality. His views were not “militant.”

The judiciary is indeed activist, MacDougall suggests, but it’s an activism that is neither deliberate nor progressive. MacDougall argues that as a result of this unintentional activism, homosexuals continue to be treated as social oddities, even in judgments favourable to them.

Thus the lower-court judge in the Little Sister’s bookshop censorship case may have believed he was doing the gay community a real service when he observed that “homosexual erotica is more important to homosexuals [than heterosexual erotica is to heterosexuals].” The judge used this reasoning to decide that gay and lesbian porn can be more explicit than the law allows straight porn to be.

I agree with MacDougall that the creation of a double standard that cuts in favour of our community does not necessarily signal a positive achievement in the law. By singling out the importance of sexual images for queers, this well-meaning judge created a distinction between normal, heterosexual sexuality, and the over-sexed sexuality of gay people.

Though I believe that access to homo-erotic images contributes to gay and lesbian pride, I’m not sure that courts do us a favour by assuming that gay people need to consume porn, while straight people can simply take it or leave it.

Queer Judgments does not brim over with outrageous judicial quotables, though it has its moments. There’s Alberta Justice John McClung. In Vriend, McClung argues that gay people do not deserve protection from their employers’ homophobia because (I swear I’m not making this up) sodomy is not a “fundamental right.” He then compares homosexuality with “violently aberrant sexual configurations” of the sort expressed by Jeffrey Dahmer, Paul Bernardo and Clifford Robert Olsen.

Thankfully, judges rarely pull a McClung. Like lawyers, they learn to couch their prejudices in sanitary legal language.

The famous Egan decision is a great example of the insidious nature of judicial speech. For laypeople, it is hard to understand how the Supreme Court could agree that denying a pension allowance to a same-sex couple amounted to discrimination, but decide that the discrimination is justified. Cynics will tell you a court can find a respectable legal route to arrive at almost any result it wants.

Queer Judgments has its flaws. MacDougall spills a lot of ink on decisions that have to do with lesbians, the Butler obscenity decision for one. He even makes the interesting observation that female judges rarely make negative comments about homosexuality. But MacDougall opts out of providing any gendered analysis of the cases on the feeble grounds that as a gay man, he has “no personal experience with the lesbian perception of the issues” – something of a double standard.

But MacDougall’s argument that the judiciary is not as tolerant of homosexuality as rightwing charter-phobes would have us believe is a strong one. Not only have today’s courts not embraced homosexuality, the recent frenzy of judge-bashing may lead to a dangerous consequence in the future: a chilling effect among the judiciary. At a time when the most moderate and even conservative among them are portrayed as raving liberals, judges may be tempted to avoid making decisions that are bound to generate a public outcry.

That would amount to one tragic judgment call indeed.