The following editorial, entitled "Unlocking the Locked Step of Law and Morality," appeared in The Globe and Mail on December 12, 1967.
Justice Minister Pierre Trudeau had just introduced a bill that, among other reforms, decriminalized homosexuality. Earlier that year, the courts had declared Everett Klippert a dangerous sex offender, subject to indefinite imprisonment. His crime was gay sex.
In the increasingly liberal 1960s, many Canadians believed the law had to be changed. The Globe made the case: "The state" said the editorial, "has no right or duty to creep into the bedrooms of the nation." Mr. Trudeau turned that into one of his signature phrases: "There's no place for the state in the bedrooms of the nation."
Last week, after a Globe investigation into Mr. Klippert's case, the government said it will pardon men imprisoned for being gay.
Here is our 1967 editorial, in full:
Justice Minister Pierre Trudeau grappled with a huge and hoary issue when he outlined the reasoning behind the decision not to have a free vote on the divorce reform bill. Nothing less than the relationship between the sacred and the profane, the jurisdiction of Caesar and the jurisdiction of God.
He deserves credit because he has opened the door to a public discussion on that plane. However hoary, the issue of public and private morality pervades our increasingly permissive, pluralistic and secularized society. A public discussion is necessary to shed light on other social issues such as abortion, birth control and homosexuality. By urging members of Parliament not to impose on the country their own religious, moral and ethical convictions, Mr. Trudeau expressed a growing – and healthy – conviction that the state has no business legislating individual morality.
This conviction was forcefully presented last fall to the Commons Committee on Health and Welfare in a brief prepared by the Canadian Catholic Conference, composed of the Roman Catholic bishops of Canada. The brief explained the bishops' reasons for not opposing change regarding birth control legislation. It read, in part: "We wish to make it abundantly clear that the modification of civil law in no way implies the modification of God's moral law. No matter what civil law may state, divine law remains intact.
"There are, moreover, instances in which it would not serve the common good to translate moral laws into civil laws. For example, fornication between consenting adults is certainly sinful in the eyes of God. Yet civil law does not forbid this moral offense."
The same reasoning was used by the bishops when they decided not to oppose divorce reform. Curiously, they do not apply this reasoning to abortion – but that is exactly why we desperately need a public discussion. Let us examine this no man's land between civil and moral law.
Legislated ethics and morals are discriminatory and usually futile. The denial of Christian truths once was punishable by law in England as blasphemy. Heretics customarily were burned at the stake.
Prohibition failed to keep people from drinking and generated widespread disrespect for the law.
Obviously, the state's responsibility should be to legislate rules for a well-ordered society. It has no right or duty to creep into the bedrooms of the nation. "The only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others," John Stuart Mill said in his essay On Liberty, 100 years ago. The state's responsibility is crime. The church's responsibility is sin. There is a difference.
Homosexual acts committed privately between consenting adults should not be a crime, just as fornication between consenting adults is not a crime. Why is the law so progressive with bigamy? As H. L. A. Hart. professor of jurisprudence at Oxford University, points out, a married man may cohabit with another woman, celebrate the occasion with champagne and wedding cake, give her his name and father her children and only get whomped into jail when he has the union blessed in a marriage ceremony.
The state quite rightly ignores all the outward manifestations of bigamy and steps in only when it is seen as a threat to the order of society. Why not the same approach to homosexuality? Or divorce or birth control or abortion? Mr. Trudeau has pressed a button that may lead to a welcome jettisoning of the old attitude that laws are there to prevent bad things, not just harmful things.
The development of law has been greatly influenced by morals, but there is little evidence that the development of morality has been influenced by law, Professor Hart notes In Law, Liberty and Morality. He also writes:
"The use of legal punishment to freeze into immobility the morality dominant at a particular time in a society's existence may possibly succeed, but even where it does it contributes nothing to the survival of the animating spirit and formal values of social morality and may do much to harm them."