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The Supreme Court's Swingers Decision Strips Away Community Values

The decision clearly establishes the courts as the new arbiters of public morality. They have cut out Canadian society and the concerns of ordinary Canadians.


Recently the Supreme Court of Canada released two decisions concluding that so-called swingers clubs are not illegal. The court decided that what goes on in these establishments is not "indecent," nor is it "harmful." This is one of those watershed cases that changes the way courts deal with the regulation of sex for commercial purposes.

… one of the roles of churches and religious institutions is to comment on moral issues.

Why would Canadians possibly care what sex acts consenting adults engage in? In this postmodern era, some people argue that anything goes. But that is only true if you assume that what you do has no impact on anyone else. Swingers clubs, and what goes on in them, does have an impact far beyond the four walls of the club.

Up to this point, the courts have applied a test of the Canadian community standard of decency when deciding whether a particular act or business is indecent. This standard was applied to strip clubs, lap dancing and even when considering obscenity in terms of allowable pornography. This standard recognized that Canadian society has a legitimate concern with public treatment of sex acts.

In the cases decided on December 21, 2005, however, the court has developed a new standard. Under this new interpretation, swingers clubs are legal because there is no real "harm" caused by consenting adults engaging in group sex acts in a commercial business. And the court sets the barrier for "harm" at an incredibly high level. The harm must be to the "proper functioning of Canadian society."

This decision clearly establishes the courts as the new arbiters of public morality. They have cut out Canadian society and the concerns of ordinary Canadians.

Mr. Justice Michel Bastarache and Mr. Justice Louis LeBel dissented. They point out, "This new, harm-based approach also strips of all relevance the social values that the Canadian community as a whole believe should be protected."

And these decisions will have ripple effects on other sex-related businesses.

Swingers clubs will now be able to advertise publicly and encourage more couples to consider consensual adultery. Some marriages and relationships will likely not survive this sexual experimentation.

Strip clubs will now be able to feature public sex acts unless there is "harm" shown. And only the courts can determine what is "harmful."

Bath houses and massage parlours will be able to operate as legitimate businesses, publicly offering sexual services, unless someone can prove "harm." And only the courts can determine what is "harmful."

The liberalization of public sexuality, which also includes pornography, objectifies sex. It is no longer an act of emotional intimacy, but simply physical gratification. Over the last year, I have noticed an increasing number of news articles and commentaries expressing concern over sexual activities of young teens, including anti-social and inappropriate sexual activities. There are worrying trends that can be linked to increased exposure to public sexuality.

And this brings us to the harm that all this causes: hurt to family relationships; hurt from psychological problems arising from unfaithfulness; hurt to families shattered; hurt by children left without full parental support.

Many Canadians care about public morality. In fact, the whole Criminal Code is based on setting out a common public morality. It sets out what is not acceptable in society. These standards change over time, and so the Criminal Code is amended. But the Supreme Court decision has not resulted from a change to the Criminal Code.

Some people believe that there is no longer a need for public morality. They are, in fact, offended that anyone would presume to pass judgment on their lifestyle. They are especially offended that a religious group would comment on public morality.

But one of the roles of churches and other religious institutions is to comment on moral issues. Of course, not everyone will agree with a particular religious commentary, or any other moral commentary. But that does not take away the religious organizations' role, or indeed responsibility, to speak to these issues.

Public morality is formulated by all Canadians. Religious communities are part of the larger Canadian society. If we are to live together as a society, we need to have ways of publicly debating issues to come to consensus. One of those ways is called Parliament. It is there that there can be broad, public input. No doubt, this will be one of the issues debated by Parliament, when it resumes after the election.

Janet Epp Buckingham is director of law and public policy at the Evangelical Fellowship of Canada, in Ottawa.

Originally published in the Globe and Mail, December 27, 2005.

 

 
 
 
 

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