Focus On

More on the school board, the pride flag and Pope Francis | Marvin Zuker

Tuesday, May 11, 2021 @ 3:03 PM | By Marvin Zuker

Marvin Zuker %>
Marvin Zuker
I have this vision of Caleb Smolenaars and Hayden Stagg, the two students who wrote the letter to the Halton Catholic District School Board (see part one, link below), meeting Pope Francis at Pearson airport and escorting him to the HCDSB offices to meet the administration and of course the trustees. What would Pope Francis think about pride month and the pride flag?

This is the same Pope Francis who famously said in 2013, “If a person is gay and seeks God and has good will, who am I to judge?”

This is the same Pope Francis who recently stated that “The Lord, with his grace, makes us bear fruit, even when the soil is dry due to misunderstandings, difficulty or persecution, or claims of legalism or clerical moralism. This is barren soil.”

In between, in 2015, Pope Francis reportedly met with a transgender person, who called the Pope “kindness personified.”

Then of course came push back time: the Vatican document on gender, coincidentally released during the month of June 2019 titled “Male and Female He Created Them: Towards a Path of Dialogue on the Question of Gender Theory in Education.” The document rejects the idea that gender is distinct from biological sex and a transgender identity seeks to “annihilate the concept of nature.” Identifying outside of a gender binary is “nothing more than a confused concept of freedom in the realm of feelings and wants.” To many, this is a real disconnect between the church and the lived realities of LGBTQ Catholics.

To many the Catholic church is a place of affirmation and a spiritual home for everyone. Affirmation and a home for all would be better reflected by the HCDSB flying the pride flag. If we truly want to create a human civil society we have a lot more work to do. In terms of Principles of Peaceful Change based on Dr. Martin Luther King Jr.’s Principles of Nonviolence “… Defeat injustice, not people. We recognize that those who are intolerant and seek to oppress others are also human, and are not evil people. We seek to defeat evil, not people...” (see

Religious freedom is understood to protect individuals from the abuse of their religious communities. One perspective is that people are first individual members of the human family. We should all be treated equally before the law as individuals. In some cases of course our courts have limited religious freedom. See for example A.C. Manitoba (Director of Child and Family Services) 2009 SCC 30 and B. (R.) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315 at paras 80, 107-09, 226, 231.

It was almost 20 years ago that Justice Robert MacKinnon of the Superior Court of Ontario decided in the case of Hall (Litigation Guardian of) v. Powers [2002] O.J. No. 1803 relating to the Durham Catholic District School Board refusing to allow the attendance at a prom of a gay student and his boyfriend, that religious freedom is a vehicle for individual rights. It is not a stand-alone.

As Justice MacKinnon states in Hall: It is “obvious that the educational system of [Ontario] is not frozen in time. Educational methods change. … It is difficult to imagine how the legislature of Ontario can effectively exercise [its] power [under s. 93] unless it has a large measure of freedom to meet new circumstances … .”

We can only hope that the HCDSB trustees are not frozen in time and do the right thing: raise the flag.

Many of our younger generation have grown up in a world where there is more equality, more acceptance of sexual and gender difference, and they truly value it and are comfortable with it. Those of us who are older must do whatever we can to support them and support Caleb and Hayden so that we can not only hold onto those rights that have been gained but those rights we must continue to fight for.

This is part two of a two-part series. Part one: The school board, the pride flag and Pope Francis.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at or call 905-415-5811.