Christian Conservative Christian "Independent"

I'm an evangelical Christian, member of the CPC, but presently & unjustly exiled to wander the political wilderness.
All opinions expressed here are solely my own.

Wednesday, December 21, 2005

"Indecency"... SCoC ruling is GARBAGE

I reject today's Supreme Court ruling on "indecency". I've only heard bits and pieces of the ruling. (mostly because I'd rather NOT hear about the activities of the people involved in the case, thank you very much...) However, I heard that the court said that "Indecency should be determined not by community standards, but by whether or not harm is caused."

Garbage. Absolute garbage. And I say that because I accept the fact that there are Absolute standards in this world. Right and wrong. Good and evil.

And this ruling is pure evil.

The moral door has just been swung open wide, ladies and gentlemen. Polygamy will be soon coming, public nudity will be condoned, etc, etc, etc. Yet, you can't talk about God, or Jesus Christ in our day and age. Interesting...

Well, I'm sure He'll deal with all these issues when He gets back.

24 Comments:

  • At Wed Dec 21, 11:25:00 PM EST, Anonymous Anonymous said…

    Consenting adults can do what they want in private. You theocons can do what you want but why do you have to be in everybody's face about it.

     
  • At Thu Dec 22, 12:16:00 AM EST, Anonymous John said…

    And apparently you don't have the balls enough to give your name to the owner of this blog. Theocon? Did you just make that one up just now you pervert loving shit?

     
  • At Thu Dec 22, 01:40:00 AM EST, Blogger Ottawa Core said…

    the anonymous lieberal is protecting his right to act like on his base instincts, here, and i'm assuming, in his own house. fair. what i don't accept is having bawdy houses in my community endorced by the deviant subterranean culture of the liberal party of canada for the explicit use of a sex industry which will provide them more adherants to their ill begotten ways. sheesh. come on over, we're having a sex party. bring the little ones.

     
  • At Thu Dec 22, 09:27:00 AM EST, Blogger Christian Conservative said…

    Anonymous, you asked "Why do you have to be in everybody's face about it?"

    Cause my Boss told me too... see Matthew 28:18-20 in the New Testament of the Bible. ;-)

    Since Jesus Christ is the Son of God, The Most Holy One and the Almighty and Supreme Ruler of the Universe, I do what He tells me to do. THAT's why I "get all up in people's face" about things.

    Since everyone needs to "repent" from their sins to be saved, I would be doing you a disservice not to point it out, no?

    And as I've said before, I have no intentions of trying to "Christianize" the government, but I do need to remain faithful on a personal level to my first duty.

     
  • At Thu Dec 22, 11:54:00 AM EST, Blogger Blake said…

    I think the question as far as public policy is concerned (as opposed to moral considerations), is, "Is this something that the government needs to regulate?" One can be a political libertarian, of course, without necessarily participating in such immoral behaviour oneself.

    But I do believe that clubs who do this kind of thing should probably be outlawed. Not so long ago - say, 15 years? - there used to be a concept called "community standards" when dealing with this kind of issue legislatively. This court's ruling directly repudiates that legal theory, and I'm afraid that is not good for our country.

     
  • At Thu Dec 22, 05:32:00 PM EST, Anonymous drew said…

    "Garbage. Absolute garbage. And I say that because I accept the fact that there are Absolute standards in this world. Right and wrong. Good and evil."

    Isn't that sort of what the ruling gets at though? That indecency is now defined as something that actually harms someone rather than the subjective whims of the majority's standards which could change from conservative to liberal and back again at any time? Now we actually have something a little more concrete. Anyway, I don't believe the law should be involving itself in the sexual activities of consenting adults as long as it is not in a public setting (and a private swingers club is not a public setting) so I think this ruling is a great thing (even if I have no interest or intention of visiting such a club... as Blake said, one can be a political libertarian without participating in immoral behaviour).

     
  • At Thu Dec 22, 05:34:00 PM EST, Anonymous drew said…

    "there used to be a concept called "community standards" when dealing with this kind of issue legislatively. This court's ruling directly repudiates that legal theory, and I'm afraid that is not good for our country."

    Out of curiousity, Blake, why do you think that? Not trying to start an argument, I'm honestly just curious.

     
  • At Fri Dec 23, 06:44:00 PM EST, Blogger Blake said…

    "Out of curiousity, Blake, why do you think that? Not trying to start an argument, I'm honestly just curious."

    Well, I have several issues with rulings like this:

    1) It strips the elected legislatures of their rightful role as lawmakers and vests that responsibility with the unelected judiciary. I believe in cases like this the courts are to interpret - not make - the law.
    2) It employs a standard of "harm" that has not historically been the principle of such regulation.
    3) I don't believe that Ottawa-based appointed judges are in fact the best judges of "harm", be it physical, or moral damage done to a community.
    3) The community is stripped of their right to say, "We don't want this kind of behaviour around, regardless even if no physical harm arrives from the behaviour."

     
  • At Fri Dec 23, 08:00:00 PM EST, Blogger Blake said…

    Please ignore my editing failure by leaving two #3s there. Oops.

     
  • At Fri Dec 23, 08:39:00 PM EST, Anonymous Anonymous said…

    Right on Blake!VF

     
  • At Fri Dec 23, 11:33:00 PM EST, Blogger Dave T. said…

    Blake:

    Are you aware that the term "indecent" is undefined in the Criminal Code? Parliament has not seen fit to define the term for the Courts.

    In light of that, I have a few questions re: point number 1 in your last comment:

    Could you please explain in detail, citing examples, as to how this ruling strips legislatures of their roles as lawmakers. Could you also explain how, in your view, this ruling is an example of the Court making, not interpreting the law. Provide references to the text of the decision.

    Just curious.

     
  • At Sat Dec 24, 09:31:00 AM EST, Blogger Blake said…

    BFHD:

    Excellent post, and I read your blog post on the subject. I had not - and will not - do specific legal research on this case, because I don't have that much time on my hands and even if I did, it wouldn't really matter, now that the high court has ruled on the subject. However, I think it has been well-established that principles of "community standards" in other indecency laws (as opposed to the misapplied prostitution laws applied here) have been assaulted many times, most famously in the instance of child pornography.

    I will say that I am no fan of judicial activism, to which this country has been subjected to far more than I am ready to accept as reasonable. I will now withdraw my statement that this particular case is an example of that, out of inabilty and disinterest in proving that point.

     
  • At Sat Dec 24, 10:19:00 AM EST, Anonymous drew said…

    Blake:

    Weird, my post seems to have vanished. To summarize it (as it was kinda long), I agree with you on points 1 and 3, don't have a huge problem with point 2 even if I do have a problem with how it came to be, and think point 4 is actually a good thing as I'm not for the idea of a community being able to have someone charged with a crime for doing something the community simply dislikes. Just my opinions though and I don't expect others to have to agree. :)

     
  • At Sat Dec 24, 08:37:00 PM EST, Blogger Dave T. said…

    Blake:
    Thanks for the answer.

    Regarding the replacement of "community standards," the movement from "community standards" to harm-based tests for obscenity and indecency has been gradual over the past 20 years or so. It's also worth nothing that obscenity (used in the definition of pornography) is also not defined well enough - the definition of obscenity includes the term "undue exploitation of sex." The "community standards test" was used to determine obscenity under that definition. R. vs. Butler changed the test to a harms-based test approximately 15 years ago.

    The "community standards test" was not legislated. It was a test that started to be replaced gradually with the harm-based theories of obscenity and indecency.

     
  • At Sat Dec 24, 09:46:00 PM EST, Blogger Blake said…

    BFHD:

    Thanks for your response. Are you a legal researcher, or just really interested in the subject? I have begun to peruse the entire R. v. Butler decision, and it certainly is interesting.

    The "community standards" has been employed, to the best of my knowledge, in municipal zoning regulation here in Ontario, which the OMB and courts began to frown upon about 15 years ago as well. Again, I disagree with the movement away from having standards of obscenity or indecency (no matter how poorly worded - what's the old saw? You'll know pornography when you see it?). But society has changed, I suppose. Once upon a time a phrase like "undue exploitation of sex" meant something to people and we could adjudicate matters based on that language. Now, not so much, I suppose.

     
  • At Sat Dec 24, 09:54:00 PM EST, Blogger Blake said…

    Drew:

    "...and I think point 4 is actually a good thing as I'm not for the idea of a community being able to have someone charged with a crime for doing something the community simply dislikes."

    Well, typically, legislation is enacted to supposedly represent the interests of the community. We outlaw heroin because it's contrary to the community interests, for instance. I don't think that if I had a kid, I'd want him walking to school and passing a heroin den on his way. I'd kind of want the police to come in, break up the heroin ring, seize the house, so my child is not being subjected to that junk. Unfair that people would go to jail because of my hang-ups about heroin? I don't think so.

    I think the same thing happens to clubs used for orgies. I don't think I'd want my children exposed to that, and I'd certainly want the authorities to remove that influence from my neighbourhood. At the very least they should be zoned out of existence close to residential, commercial, or institutional areas and put out in the middle of some industrial park somewhere.

     
  • At Sun Dec 25, 12:45:00 AM EST, Blogger Dave T. said…

    Blake: Just someone who is interested in the topic.

    Re: standards of obscenity and indecency, there has not been a move away from having standardds of obscenity or indeceny; the change has been in how those standards are determined. As the ruling in R. vs. Labaye argues, harm-based tests are much more objective than "community standards" based tests. So there is not a move away from standards, simply a move towards more objective ones.

    It's also worth noting that the term "undue exploitation of sex" is still used in the Criminal Code. A harm-based test was outlined in R. vs. Butler, and I cannot recommend more strongly that you read the Labaye and Butler decisions to learn more about these tests.

    Regarding municipal zoning regulations, I can't speak to that. That's something completely different from the Criminal Code and is not affected by these decisions.

    I also think your heroin den analogy is faulty. A drug den attracts people who are involved in violent crime. An orgy room behind guarded, locked doors that nobody is allowed into without knowing what's inside is different from a drug den in that it does not by its nature attract drug dealers, violent criminals, and so on. It's also something that you or your children would not be confronted without your consent in the same way that a drug den in the house next door confronts you.

     
  • At Sun Dec 25, 02:55:00 AM EST, Anonymous Peck said…

    Um... I'm sorry to be so off-topic, but to the owner of this blog... Are all of your actions based off the bible? Do you quote scripture in real life?

    And do you actually believe things like polygamy will be legalized with a Liberal government? Ensuring people's rights are protected is not a big change (SSM), but polygamy or bestiality don't have many fans in Canada, whether left or right wing.

    You want a reason why people don't like hearing about religion in everyday life? Because people don't like having other people's opinions being shoved down their throats. Simple.

     
  • At Sun Dec 25, 07:09:00 AM EST, Blogger Blake said…

    BFHD:

    I never said that there was an intentional moving away from indecency standards; that is the de facto result from delocating the criteria of indecency, away from the community and to the individual, based on the criteria of "harm". This is not "objective" as you claim, in the least: it is a guise by which the community's moral health has ceased to become a locus of inquiry in public policy. Is the "harm" done to the moral fabric of the community being considered? No, that is "subjective"; speculating about potentiality of STD transmission in an orgy house as opposed to elsewhere is purely "objective", though, right? I believe, very firmly, that the move away from community standards of decency is going to prove destructive to Canada's moral fabric in the long run. Although I am more than prepared to reap what we have sown as a country, I don't particularly relish the thought of any future progeny of mine doing so.

    Your critique of my analogy of drug dens is not based in reality. My wife's old city was a crystal meth hotspot, one of the biggest in the entire USA. There was at least one - and possibly two - crystal meth houses right across the street from the house in which she and her grandmother lived in one of the nicer suburbs. There were never any fights, violent crimes, or burglaries in that neighbourhood, just a lot of people driving through, picking up their drugs (or staying and doing them in the house) and then leaving. And that's usually the trend with drug houses: very few violent crimes are committed in the immediate vicinity.

    And I, as a parent, would be concerned about my child walking past and being exposed to an orgy house on the way to and from school. I think most sensible parents would tend to agree. But the health and welfare of the moral fabric in the community of these parents, and their children, I suppose is not important enough to be addressed in law?

     
  • At Sun Dec 25, 08:37:00 AM EST, Blogger Dave T. said…

    Blake:

    I never said that you claimed any move away from indecency standards was "intentional." I said that there was no move away from indecency standards at all. Regardless, I still disagree that there are going to be any long term problems. The number of people who are interested in orgies is low, and there's no reason to believe that sex clubs like this will start springing up everywhere. The only change now is that people can't be arrested for doing stuff they were already doing.

    I cannot recommend strongly enough that you read the decision in R. vs. Labaye. Here is one paragraph that touches on the problems of the "community standards" test:

    Borrowing on decisions from Australia and New Zealand emphasizing the foundation of criminal legislation on obscenity and indecency in societal norms, the Court adopted a test based on the community standard of tolerance. On its face, the test was objective, requiring the trier of fact to determine what the community would tolerate. Yet once again, in practice it proved difficult to apply in an objective fashion. How does one determine what the “community” would tolerate were it aware of the conduct or material? In a diverse, pluralistic society whose members hold divergent views, who is the “community”? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct at issue? In practice, once again, the test tended to function as a proxy for the personal views of expert witnesses, judges and jurors. In the end, the question often came down to what they, as individual members of the community, would tolerate. Judges and jurors were unlikely, human nature being what it is, to see themselves and their beliefs as intolerant. It was far more likely that they would see themselves as reasonable, representative members of the community. The chances of a judge or juror saying, “I view this conduct as indecent but I set that view aside because it is intolerant”, were remote indeed. The result was that despite its surficial objectivity, the community standard of tolerance test remained highly subjective in application.

    The judgement talks about the development of the harm-based test, which first started being developed in 1985 and came to the forefront in Butler in 1992.

    I do not have experience living next to a drug den, but I have friends who did and were recently forced to move because of problems with it. I suppose every drug den is different. But for all you know, your children are walking past an orgy house on the way to school as it is. Maybe your children walk past a hotel on the way to school - can you tell whether men are renting hotel rooms to use with prostitutes? If you don't know what's going on and you're not confronted with it, how can it harm you or your children?

     
  • At Sun Dec 25, 09:44:00 AM EST, Blogger Blake said…

    BFHD:

    Okay, listen close: I understand where the law has gone on this. I understand why. But I vehemently disagree. The rationale behind it is flawed, no matter how many politically-appointed judges may differ in that opinion.

    And the problem I have isn't the fact that children may pass by a house on their way to and from school in which orgies happen to take place, but the fact that said building contains a place where the public is solicited to become a member and join up. Again, if they're located way the hell out in the middle of nowhere, I don't care so much. But to have them in public areas is just asinine. Reasonable people can agree to that.

    And by the way, whichever justices came up with the majority decision in Labaye need to read some serious postmodern thought. About twenty minutes of reading Fish would put the lie to the ridiculous assertion that broad communal agreements do not exist in pluralistic societies.

     
  • At Sun Dec 25, 10:59:00 AM EST, Anonymous drew said…

    "I think the same thing happens to clubs used for orgies. I don't think I'd want my children exposed to that, and I'd certainly want the authorities to remove that influence from my neighbourhood."

    I guess the question becomes, what if I don't (hypothetically) want my kids exposed to Christian churches (or Muslim mosques, or Hindu temples, or whatever "holy building" you don't like) in my neighbourhood as I (again, hypothetically) consider them to be a danger to my child's moral health? "Moral health" is a little too subjective a concept so I don't see how we could even consider including such an idea when it comes to legislation. I don't believe that we have a right or need to not be morally offended or disgusted by what goes on in our area as long as no one is being harmed (on a quantifiable level, not on a subjective, religious level). Besides, as long as you train up your child in your beliefs you've done your job. They can't join such a club until they're of legal age anyway, and at that point they're going to do what they're going to do (or avoid what they're going to avoid) regardless of whether it's in a club or a private home.

    "At the very least they should be zoned out of existence close to residential, commercial, or institutional areas and put out in the middle of some industrial park somewhere."

    This I can appreciate, at least as far as perhaps zoning businesses out of residential areas, even if not out of commercial areas.

    Just my thoughts, for what they're worth, but I can agree to disagree. :)

     
  • At Sun Dec 25, 12:57:00 PM EST, Blogger Dave T. said…

    Blake,
    I guess the disagreement comes down to a matter of philosophy. Yes, broad communal agreements exist in society, something the Justices didn't deny.

    In your opinion (if I understand you correctly), the fact that society as a whole disapproves of something as "indecent" is enough for that disapproval to be put into law with fines and jail time for violating it ... even if it takes place behind locked doors and nobody else is subjected to it.

    In my opinion (and from their judgement, the opinion of the Court) is that there has to be more than just the disapproval ("ew, gross") of a large segment of society to outlaw consensual sexual behaviour as "indecent." They, like I, think that so long as nobody is harmed, adults should have the ability to make decisions on sexual matters for themselves.

     
  • At Tue Dec 27, 11:28:00 AM EST, Blogger Christian Conservative said…

    Hi there Peck,

    I do indeed try to live my life by the teaching of Jesus Christ in the Bible, and based on the advise and teachings given by all the writers of the Holy Scriptures. I do try to quote it in daily life, as so much of it is very relevent to our human condition.

    I try not to "shove" my feelings down peoples throats, but when asked, I won't pull any punches.

    I do think that these other issues regarding sexual "sins" (I'll just call it like I see it) will indeed be brought forward due in part because of the Liberal Party of Canada's unwillingness to stop such things, and because of activist judges and legal rulings such as the one we are discussing here.

     

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