Marc Hall won the fight to go to his Catholic high school prom with his boyfriend, but that was only the preliminary round. The big court battle over what religious schools can and can’t do will likely begin this spring.
Hall is now seeking a court ruling on the constitutionality of the actions by the Durham Catholic District School Board and the principal of Oshawa’s Monsignor John Pereyma Catholic Secondary School.
The court ruling last May was merely an event-specific injunction.
“All we got from the judge back in May was a finding that we had a good strong case and that balancing the interest of the parties, given the short time, that he should be allowed to go pending the completion of his lawsuit,” says Hall’s lawyer David Corbett. “There’s no binding decision against [the school board] that would be useful in another case.”
And the school wants the issue settled, too.
“The school board and the principal have indicated that they want to continue with the case because they had no realistic opportunity to appeal the injunction,” says Corbett.
The board isn’t just going up against Hall, they’re also up against the Coalition To Support Marc Hall, a group granted intervenor status in the case.
“My clients are very concerned about the principle that any publicly-funded organization should be required to abide by Ontario’s non-discrimination policy,” says Douglas Elliot, the lawyer representing the coalition. “The authority of provincial governments to enforce that non-discrimination policy on publicly funded bodies is extremely important to them. The idea that we have to subsidize their discriminatory religious practices is offensive.”
For Elliot, the issue is bigger than just the Catholic schools. He says the case could establish a principle that can be applied to other situations so that, when an organization accepts government money, the government can require it to have a non-discrimination policy.
“It becomes an even more serious issue because a lot of the groups that want to have publicly-funded religious schools… do not like the secular curriculum because they don’t like what it says about sex and sexuality,” says Elliot.
“Our position with respect to Catholic schools is if they feel that they have a religious belief that is so important to them as to discriminate against Marc Hall, then the simple answer is that they should not take any money from the public and they should be privately funded,” says Elliot. “What they can’t do in our view, is take money from the taxpayers of Ontario and tell us that we’re not entitled to make rules about what they do with the money.”
Intervenors are usually only seen in public law cases where the issues to be determined have an impact on people who are not in the litigation. The Catholic School Teacher’s Union has been granted leave to intervene on restricted terms.
Corbett is now in the process of asking for a trial date.
“The earliest that is likely to happen is late March, but it’s unlikely it will happen that quickly,” he says. “I think the school board would like it if it did, simply because it would like to get a decision before this year’s prom season happens.”
Elliot says that Ontario is the only province in Canada with publicly-funded denomination schools, and one of the few places left in the world with them.
“Catholics have tried to take the position that Catholic schools are subject to the authority of the church and no one else. They’ve always viewed the schools as being just another facet of the church and therefore above the law, and only subject to the authority of the Pope,” says Elliot. “Despite that view, that’s never been public policy in Ontario.”