Two Supreme Court of Canada decisions legalizing so-called swingers' clubs
are the latest example of an establishment divided over the status of
families.

Controversial as was Parliament's affirmation of the right of gays to wed,
it at least validated the foundational benefits of family life for
society, by ruling they must be available equally to citizens regardless
of sexual orientation.

Now, by upholding the right to hold what are in effect orgies, the Supreme
Court does the opposite. By no stretch of the imagination can
partner-swapping be defended against charges that family life is subverted
when the mutual fidelity that is its cement is wilfully trampled upon.

So, what is the establishment message? Parliament pays lip service to
family values, while the Supreme Court says anything goes.

What happened to community standards? Of no force, apparently. Such a
yardstick was always fragile, in any case, based on no value more enduring
than the most recent show of hands.

Many Canadians may feel Chief Justice Beverley McLachlin was wrong, when
she wrote for the majority in the case of club-operator Jean-Paul Labaye
that, "Defining indecency . . . is a notoriously difficult enterprise."
They cannot say that she was illogical to therefore demand "objective
criteria, based on harm," be sought for a conviction, rather than
"subjective considerations."

But, what is harm?

McLachlin says 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."

This flaccid definition is unduly permissive. One might suppose, for
instance, that the first harm of mass promiscuity would be the potential
spread of disease.

Not at all, according to seven of nine learned judges. The transmission of
HIV, chlamydia, syphilis, gonorrhea and herpes are "conceptually and
causally unrelated to indecency." That's unexpected from judges in a
country where students are taught the very dangerous causal connection
between sexual activity and disease.

Many people would also consider participation in a group-grope to be prima
facie evidence of anti-social behaviour.

In any consideration of psychological harm, more weight must be given to
the likelihood not all participants are equally enthused. In the absence
of reassuring testimony that wife-swapping does not have a destructive
effect upon the relationship of trust and acceptance between partners, the
Court was too quick to assume there couldn't be one.

It has thus adopted an apparently libertarian position, ruling people
should be free to do as they please, provided they harm nobody else.

But, its inadequate description of harm undermines that argument. As
Bastarache said in his dissent, "When the standard of tolerance is
established on the basis of the three categories of harm, it becomes
impossible to take into account the multitude of situations that could
exceed the threshold for decency."

No good can come of this. Contrary to the popular bromide, and to the
discomfort of drunk drivers and hate mongers, it is possible to legislate
morality. The state does so by establishing codes of conduct. It may
punish those who flout them. It may also uphold them, by refusing to
countenance their opposite.

In these cases, the Court has failed in the latter. It has said what was
once considered disgraceful behaviour is literally a harmless activity.
Thus, it encourages those inclined to it, and makes it more difficult for
unwilling partners to decline.

The Court's position is therefore demonstrably unfriendly to families, and
at odds with Parliament's stated, if weakly promoted, endorsement of them.

The full social cost of unrestrained sexuality has yet to be understood in
Canada. But, if history is any guide, a house divided against itself
cannot stand.

© The Calgary Herald 2005