Academic journal article Contemporary Readings in Law and Social Justice

"Public Interest," Judicial Reasoning and Violence of the Law: Constructing Boundaries of the "Morally Acceptable"

Academic journal article Contemporary Readings in Law and Social Justice

"Public Interest," Judicial Reasoning and Violence of the Law: Constructing Boundaries of the "Morally Acceptable"

Article excerpt

Introduction

Constitutional courts have a major role to play not only in defining such concepts as "public interest" and "public harm," but also in contributing to the process of shaping society's perceptions of acceptable boundaries of citizenship and defining which individuals and actions should be left outside the scope of the "morally acceptable." In other words, constitutional courts are at the forefront of determining the extent to which the "plurality of values" can be accommodated in a democratic society, which interests take precedence and under what circumstances. Frequently, constitutional courts resort to the tool of proportionality analysis2 in order to balance competing and conflicting claims and, in the process, construct the boundaries of this elusive concept of "public interest." It should not come as a surprise, then, that "the public interest standard has become a catch-all standard by which public officials and others are judged, exercise discretion and govern themselves in promoting public good."3 This article examines the continuum of judicial reasoning in terms of conceptualizing and constructing what is in the "public interest" within various educational settings, as well as the place of equality and the scope of gay rights in these settings. Most of the literature dealing with group rights in constitutional law acknowledges the difficulties faced by constitutional courts in resolving conflicts between minority groups,4 even labelling the competition between minority rights as the new "constitutional minoritarianism."5 In contrast, this article specifically calls for honest judicial acknowledgement of the unique role of minority rights in the construction of public consensus that surrounds what is to be viewed as being in the "public interest" when it comes to minority rights rather than shying away from their potentially transformative role and hiding behind "established legal methods and forms,"6 which frequently perpetuate existing inequalities.

Part I of the article talks about difficulties experienced by Canadian courts in conceptualizing and defining the boundaries of "public interest." In particular, it examines the uneasy relationship between "public interest," public consensus and competition between minority rights when it comes to constitutional litigation.7 Part II examines the struggle of Canadian courts in delineating the boundaries of "public interest" when it comes to gay rights8 vs. religious rights9 and freedom of expression.10 This part looks at the reasoning behind the 2001 Supreme Court of Canada decision in the Trinity Western University v. British Columbia College of Teachers11 case, the 2015 and 2016 Trinity Western University v. The Law Society of Upper Canada cases from Ontario,12 the Trinity Western University v. Nova Scotia Barristers ' Society cases13 and Trinity Western University v. The Law Society of British Columbia cases.14 The Supreme Court of Canada will be considering these issues in the very near future, and has granted leave to appeal on February 23, 2017. Part III of the article examines the above-mentioned Trinity Western University cases in terms of their effects on transgressing the heteronormative educational experience through the filter of equality. It discusses the potential for the reconceptualization of the public/private divide through constitutional litigation and the challenges surrounding the deconstruction of the very concept of "public good" that so frequently has been associated with "decent heterosexuality" and has aggressively excluded sexual dissidents from its scope.15 This article concludes by looking at the capacity of judicial reasoning to either perpetuate violence or to find, identify and "transform the sources and effects of violence,"16 while recognizing the intersectionality of inequalities.

Part I: Challenges of Defining Public Interest

The concept of "public interest" is a cornerstone of public service. In a sense it "operates as a shared responsibility of the legislators who approve laws, the government through decision-making and the courts who keep government action in check. …

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