In legal theory, there is a great debate over whether or not law should be used to enforce morality. The sides of the debate can be presented as a continuum. At one end, there is the libertarian view, which holds that morality is an individual belief and that the state should not interfere in the affairs of the individual. According to this view, a democracy cannot limit or enforce morality. At the other end, there is the communitarian position, which justifies the community as a whole deciding what moral values are, and hence justifies using the law to enforce community values. For libertarians, judges should play a prominent role in limiting the state, while for communitarians, judges should have as small a role as possible. In between these two extremes sit the liberal egalitarians, who attempt to reconcile democratic decision-making about moral values with liberalism. The problem is made more complex when one considers that both law and morality are contested concepts. Two recent cases where this continuum can be illustrated are Canada vs. Mossap, and Egan vs. Canada. In this essay, I will attempt to explore some of the issues produced in these two cases. I will begin with a summary each case, followed by an analysis of the major themes involved. I will then place the issues in a larger, democratic framework, and explore the role of law in enforcing morality in a democracy. I will then prove how the communitarian position – as articulated by Patrick Devlin – supports the decisions given in Mossap and Egan, and how even the great proponents of libertarianism – Mill and von Hayek – would agree that the decisions were just. A conclusion will then follow.
The case of Canada (Attorney General) vs. Mossap arose when a gay federal government employee applied for bereavement leave when his lover’s father died. The collective agreement between the government and Mossap’s union afford bereavement leave only in the case of the death of Mossap’s “immediate family.” Although this definition included a common-law spouse, it precluded members of the opposite sex. Mossap, who argued that he was being unfairly discriminated against, filed a complaint with the Canadian Human Rights Commission (CHRC). The CHRC agreed, and ordered that he be given bereavement leave and that the collective agreement be restated to include persons of the same sex. The government appealed this decision and the case was brought before the Supreme Court. The Supreme Could held that the “family status” provision in the Canadian Human Rights Act (CHRA) was meant to uphold an implicit legal interpretation which excluded homosexuals from anti-discriminatory protection. In his decision, Judge Lamer argued that the CHRA had been amended in 1983 to include the “family status” provision, and if the CHRA had meant it to include homosexuals, they would have made it explicit then. Instead, according to Lamer, Parliament (through the CHRA) had a clear intent to not extend anyone protection from discrimination based on sexual orientation . Since the legislature had not willed it, Lamer did not feel it was appropriate to amend it. But the decision was not unanimous. Judge L’Heureux-Dube, representing the voice of dissent, argued that the majority decision went against the “spirit” of the law, since (in her opinion) the purpose of the Act was to ensure that people have an “equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discrimintatory practices” . Based on this interpretation, she argued that “families” had changed radically in past decades; that single parents, common-law partners, adoptive parents, and other non-nuclear family units have all since been included in anti-discriminatory legislation. As a result, she argued that traditional interpretation of “family” did not apply in this case, and that the “family status” provision did include homosexuals, since homosexual partners could exhibit all the features necessary to constitute a family unit.
In a similar case, Egan vs. Canada, the Supreme court also upheld the constitutional validity of a law that discriminated against homosexuals. The appellants, James Egan and John Norris Nesbit, were homosexuals and had lived together for nearly 50 years. When Nesbit turned 60, he applied for spousal allowance afforded to “spouses” of old age pensioners, as given in Act 19 of the Old Age Security Act, but was denied. Nesbit claimed that the Act contravened Section 15 of the charter since it discriminated on the basis of sexual orientation. The case went all the way to the Supreme Court where Egan and Nesbit’s appeal was dismissed. The judge, J La Forest, based his decision on reasoning similar to the Mossap verdict. He argued that when Parliament enacted the Old Age Security Act, it had in mind the common understanding of “married couples.” In recognition of changing social realities, the act was later amended so that the term “spouse” also included couples in a common-law marriage. Based on the amendment, La Forest argued that the government did not mean for the Old Age Security Act to apply to homosexual partners, otherwise they would have made an amendment for it. He admitted that the Old Age Security Act is discriminatory, but considered this discrimination acceptable, since none of the couples excluded are capable of meeting the “fundamental social objectives” intended by the act. In this way, La Forest felt he was upholding both the letter and the democratic spirit behind the law.
An analysis of the verdicts in Mossap and Egan reveal two common themes. On a technical level, both cases dealt with the same issue: How does the law understand “family” and “marital relationships”? In both cases, the appellants argued that defining these terms according to heterosexuality was discriminatory against gays and lesbians. The overarching issue, however, was much more complex. It calls into question the role of law in enforcing morality. In both cases, the majority decisions seem to argue along communitarian lines: That the law should be made by the legislature (which represents the people), and that once it is made, the judiciary has no right to interfere. In rejecting the view that law should be used to enforce morality, the judges in Mossap and Egan are also making a statement about the nature of democracy itself. Our answer to the main question – Should law be used to enforce morality – is of particular significance in a democracy. Democracies are meant to produce governments that embody the will of the people. In authoritarian regimes, for example, it is usually taken for granted that the ruler imposes morality from above. In such systems, the Sovereign is the law.1 But the difficulty in answering “What is the legitimate role of law in enforcing morality in a democracy” is two fold: We must first identify which conception of the law the judges in Mossap and Egan uphold; and second, we must identify the proper relationship between law and morality in a democratic context.
There are two dominant opinions about what the law is. Natural law theorists typically reject the separation and identification theses. They hold that morality is somehow a priori, and that laws must be based on this moral standard. Legal positivists, however, hold that the law is just the law; it should be separated from any moral evaluation. I argue that the verdicts in Mossap and Egan were based on positive law, since both judges upheld the separation and identification theses. Even though both cases belonged in the penumbra (since the words “family” and “spouse” are ambiguous), neither judge presented any moral objections to homosexuality. In fact, Judge Lamer explicitly wrote that he had left his “personal views” aside in making the judgement . Moreover, both judges’ decisions were made based on what the law is, not what it “ought” to be. The judges were not moral crusaders out to evaluate the moral validity of certain laws. They argued on the basis of legal functionality. Their aim was to figure out why the government enacted/amended certain provisions in the CHRA and the Old Age Security Act and to map out the social applicability of these Acts. Once intent was established, the judges felt their role was to simply enforce what the government had wanted.
When it comes to morality, however, the issues are not as clear-cut. There are two prevalent views of what morality is. The Communitarian view suggests that morality is based on consensus; that the community as a whole should determine what moral values are. As a result, this view justifies using the law to enforce those values. The Libertarian view, however, suggests that morality is relative; that it is for individuals to decide. As a result, this view disallows for all but the most essential state intervention in the affairs of the individual. I believe that the communitarian position is a strong one, and I will now explain why. Patrick Devlin presents a highly compelling argument for the legal enforcement of morality. He advocates a vision of democracy in which justice is determined by the will of the majority , and argued that in every society, politics and morals are inextricably joined . We all have ideas about what is good and evil that cannot be kept private from the society in which we live. Society is not something that is kept together physically. It is held together by the intangibles of common thought. Without these bonds, society, as we know it, would not exist. This is an excellent observation. In every society, we find that laws are based, more or less, on commonly accepted moral norms. Even in countries where the positivist tradition is strongest (e.g. United States, England), we find laws that are based on communitarian ideals. Laws against rape or incest, for example, are not based on political prudence; they have their origins in Judeo-Christian ethics. While we may not agree with every law, we concede to abide by them out of social necessity. It is not difficult for us, then, to accept that there is such a thing as “public morality.” Devlin offers the example of marriage to prove his point. According to Devlin, the institution of marriage is part of the structure of any society; yet this institution would be threatened if individual judgements were permitted about the morality of things like incest and adultery . In this case, there must be a “public morality” which safeguards institutions that are necessary for society to function.
Once we agree that public morality exists, it is easy to make the connection between it and the law. If society has a right to make a moral judgement, then society has the right to use the law to preserve morality in the same way it used it to safeguard anything else that is essential to its existence. I can use the example of a police force to clarify Devlin’s argument. Every society needs policemen. Without them, crime rates would soar and people would no longer feel secure. We consider the police force to be an essential service because we all agree that our society needs to provide security. The same goes for ambulance drivers, surgeons, dentists, farmers, and teachers. All of these people provide a service that we, as a collective, consider essential for our well being. In a sense, these services are just an extension of our collective will to survive. The same arguments can apply to public morality. Public morality safeguards institutions that we, as a collective, consider necessary for our survival. Public morality, then, is as essential to a society as a police force.
Of course, a person might object that crimes committed in private do not harm the collective. For example, how can something like bestiality be an issue of public morality, since it harms no one but the person(s) involved? My answer is as follows: What if tomorrow, everyone went out and humped a donkey? What kind of society would that be? Within a few generations, we would all contract strange venereal diseases and would eventually die off. The same argument holds for other “moral vices” like incest and homosexuality. If tomorrow, everyone became homosexual, our society would die off within a generation, since there would be no one to procreate. Now of course, Mossap and Egan involved single individuals, not an entire society, but the principle still remains. We cannot, for example, set limits on the number of people who can engage in incest before we legislate against it. Our society is completely entitled to protect itself from external dangers to the collective (e.g. tariffs, defense treaties, etc.), so why should we not protect ourselves from internal dangers? For these reasons, I argue that the decisions made in Mossap and Egan were in complete agreement with democratic values, since the laws of a democracy are meant to protect the interests of its citizens.
My position would be strongly opposed by the Libertarian camp. In the 19th century, J.S. Mill wrote On Liberty, in which he articulated the Libertarian position. For Mill, the aim of democracy is to uphold the autonomy of the individual. He maintains that a government must always guarantee the civil liberty of its citizens and their protection against interference by any abusive authority. F.A von Hayek argues along similar lines. He articulates the “Rule of Law,” which demands that the state should enact laws that are fixed and apply to general situations. This enables individuals to predict state behaviour, and maximizes their freedom (especially from state coercion). It also limits the scope of state intervention in the affairs of the individual, and excludes legislation that can be aimed at a particular group of people. Based on these premises, Libertarians would reject the Communitarian position for two reasons. First, the democratic principles behind Communitarians constitute a “tyranny of the majority,” since individual liberties would be subject to the values of the majority. Mill, in particular, makes the explicit point of saying that freedom from social pressures is as important as freedom from the state. In the Communitarian position, however, the state and social values are combined. Second, Libertarians would argue that when law is used to enforce morality, it allows for the coercive power of the state to be used arbitrarily. Again, this is problematic because a democracy could never fully guarantee individual liberties for its citizens.
Based on these arguments, it is easy to think that Libertarians would disagree with my assessment of Mossap and Egan, but I disagree. We have to remember that the Libertarian position does not give a person the right to do whatever he or she wants. Their actions have to accord with certain guidelines. Even the greatest proponents of moral relativism have set limits upon individual freedoms. J.S. Mill, for example, writes “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” So even Libertarians acknowledge that self-protection is a sufficient reason for the state to limit individual liberty. For example, if a person plans to commit murder, Libertarians would justify the use of force to subdue him. This is because he poses a threat to other a common ideal, i.e. the right to life. The question we have to ask is: What constitutes harm to others? If we, as a society, did not value life, then we wouldn’t mind when the occasional murder was committed. But the fact that we do shows that murder goes against our “public morality.” The communitarian position makes its appeal based on the same grounds. In other words, if we can prove that homosexuality afflicts harm upon others, then we are justified in using the law to prohibit it. It can be argued that where homosexuality is a threat to a common ideal, the law should be used to prohibit it. We know that homosexuality does not pose a physical threat to us; rather, it threatens our “community of ideas.” Our common morality is what keeps us together, as a society. Without it, we, as a society, would cease to exist. So when acts contrary to “public morality” spread, like homosexuality or incest, they threaten our society’s very existence. In these cases, the state is justified in enforcing morality on the basis of self-protection. This does not mean that the law should be used to enforce all morality, or that homosexually should be legally banned in every country. It just means that when a society shares a particular set of morals (which they consider essential to their survival), the state is completely justified in using law to enforce them. Even if we accept an extreme moral relativist position – such as the one presented by L’Hereux Dube in Mossap – then we must also accept that the morality is nothing more than the general mood of a people at a particular time. But if this is true, then there is no better law-making institution than the legislature, since it is they, not the judiciary, that embody the mood of the people. And since the judges in Mossap and Egan based their rulings on what the legislature had intended by Acts, their decisions were based on “public morality.” Based on this, I argue that the rulings in Mossap and Egan were completely in accordance with the principles of democracy.
Let us summarize. I have shown that Mossap and Egan dealt with more than just legal interpretation. They question for the judges wasn’t “Should we reinterpret this law” but . Both judges concluded that if the people, as a collective, had condoned homosexuality, then Parliament should have enacted (or in this case, amended) the proper legislation. But the fact that Parliament did not shows that “public morality” is still homophobic. Both judges accepted their role as facilitators of the public will. They would have been justified in interpreting the law in a way that the people, represented by the legislature, did not approve of. The verdicts in Mossap and Egan served the will of the people. If that’s not democracy, I don’t know what is.
David Dyzenhaus and Arthur Ripstein, eds. Law and Morality: Readings in Legal Philosophy. (University of Toronto Press, 1996).
1 See Hobbes, Thomas. For more details.