On December 16, 1998, Justice Saunders of the British Columbia Supreme Court invalidated the Surrey school board’s refusal to approve for use in kindergarten and grade one several books that positively portray same-sex relationships. Justice Saunders’s decision reflects the increasing influence of what, for want of a better term, might be called the ideology of "non-judgmentalism." According to this ideology, at the root of much evil is the common human tendency to judge between alternative ways of life. ("Lifestyles" is the non-judgmentalist term, because "styles," like "tastes," are less susceptible to moral judgment.) The Surrey board, in this view, had illegitimately judged heterosexuality to be superior to homosexuality.
Non-judgmentalists contend that the ranking and discrimination inherent in such moral judgments undermine toleration and promote hatred. Hatred in turn, they suggest, leads to oppression of various kinds, including outright violence. Simply put, judgmentalism places us on the slippery slope to murder.
This logic was applied to Marc Lepine’s tragic 1989 murder of 14 women in Montreal. Because Lepine’s murders were motivated by hatred of feminists, the Montreal massacre was blamed on critics of feminism. To judge feminism negatively was to promote hatred of feminism and thus to trigger the murder of women. More recently, the pro-life movement was blamed for the murder of abortionists, and the recent murder of a homosexual in Wyoming was attributed to the anti-gay views of the religious right. If moral judgments lead to such tragic consequences, they certainly should not be endorsed by public policy. Thus, non-judgmentalism wants the state to adopt a posture of neutrality on controversial moral issues. Public neutrality, it is hoped, will educate citizens in the equal worth and dignity of all. If we don’t want to promote the murder of abortionists or homosexuals, in other words, we had better stop discriminating against them in the scale of public values.
Thus, instead of taking a public stand for or against abortion, the state should leave the matter to the private choices of women and their doctors. Similarly, the choice of heterosexual or same-sex lifestyles should not be burdened by any public judgment on the question of sexual orientation, including judgments embodied in school curricula. Only by refusing to take sides can the state foster the virtue of toleration and diminish the vice of hatred.
However, as Harvard political scientist Michael Sandel has observed, the state cannot avoid taking sides on contentious moral issues. For example, when Stephen Douglas claimed in 1858 that each new American state should be free to vote slavery up or down, Abraham Lincoln rightly pointed out that this "pro-choice" position made sense only if slaves were not human persons. Douglas had taken sides on precisely the issue that divided slavers and abolitionists. His rhetoric of public neutrality camouflaged a far-from-neutral judgment.
Similarly, if the fetus is a person, abortion is murder, and no one can legitimately be neutral about murder. Only if the fetus is not a person does the pro-choice position on abortion make sense. Again, far from being neutral about the central issue - whether the fetus is a person - the pro-choice position implicitly, and quite judgmentally, gives victory to one side of the debate.
The same is true with respect to the Surrey case. A school curriculum that places same-sex relations on the same plane as heterosexual relations necessarily takes sides on the central issue of whether they deserve equal status. Traditionalist parents will rightly object that such a curriculum indoctrinates their children in beliefs contrary to those taught in the home. If the books are not placed on the curriculum, on the other hand, gays and lesbians can claim with equal justice that children are being indoctrinated in the abnormality (even deviance) of same-sex relationships. The curriculum inescapably sends one or the other of these messages. It cannot avoid judging and discriminating.
If the apparent “neutrality” of non-judgmentalism cannot withstand scrutiny, neither can its claim that judgment fuels hatred and even murder. If this slippery-slope argument were true, public discrimination in favour of families should lead to hatred of bachelorhood or friendship? It does not. Human judgment is capable of more subtlety than simple-minded categorizations based on the stark dichotomy of love and hatred. We can approve family more highly than friendship while still giving the latter a very high value. Similarly, we might rank heterosexual marriages above same-sex unions while preferring stable sexual relationships of both kinds to either heterosexual or homosexual promiscuity.
We regularly like what we do not love, and we are quite capable of disliking without hating. Most important, we have the capacity to tolerate what we dislike or even hate. In fact, contrary to the emerging view, toleration is not opposed to judgmentalism but depends on it. Toleration is a meaningless virtue unless we dislike or hate what we tolerate.
Accordingly, we often discourage what we dislike without thinking it desirable (or even possible) to stamp it out. It is common, for example, to oppose immoderate drinking without being a prohibitionist, or to force prostitution underground while fully expecting the so-called "oldest profession" to continue.
To be sure, judgmentalism may lead extremists to commit murder, but this is an argument against extremism, not against judgment. If we publicly reject judgment because it might fuel murder, we should equally reject the pursuit of wealth because some people kill for money. Yet public policy encourages wealth seeking in countless ways. We recognize the social benefits of entrepreneurship and investment and reject the idea of an inevitable slippery slope to greed-motivated murder. As jealous spouses and Robert Latimer remind us, love itself can be a motive for murder. But this doesn’t lead us publicly to disparage and discourage love.
In squeezing the gray middle-ground of moral judgment toward the poles of black and white, the slippery-slope argument distorts reality. The Surrey case is a good example. Had the school board been acting out of extreme hatred, it would presumably have expunged the pro-gay books from the school system entirely. It did not. The books remain available in school libraries. The board simply refused to approve them for use in kindergarten and grade one classrooms. The board’s decision belongs somewhere in the moderate middle, but the court’s decision treated it as beyond the pale.
When moderates are treated like extremists, the prophecy may become self-fulfilling. Non-judgmentalism appears to assume, without evidence, that when presented only with the stark choice between love and hatred, people will choose love. Experience suggests that the choice of hatred is at least as likely, and probably more common.
Indeed, hatred cannot be expunged from human affairs. At best people can learn to tolerate what they hate. But they are unlikely to learn this lesson from a public policy that treats hatred and toleration as polar opposites rather than as two sides of a single coin. We should not be surprised when, having been taught that toleration presupposes approval, people refuse to tolerate what they hate. Ironically, the non-judgmentalism intended to diminish intolerance may actually increase it.
In a related irony, the Surrey judgment may encourage the migration of children out of the public schools into private schools. The court invalidated the school board’s decision in large measure because the parental concerns it reflected were often based on religious convictions. The fact that there might also be secular reasons was deemed irrelevant. The Criminal Code’s prohibitions of murder or theft are valid despite their agreement with scriptural edicts, but the Surrey school board’s decision not to endorse homosexuality was fatally tainted by its correspondence with religious convictions. No one should be surprised if this slap in the face of religious parents leads some of them to enroll their children in religious private schools. One is tempted to rejoice in this unintended consequence, but the supporters of the Surrey judgment are unlikely to join in the applause. Those who wish to use the public school system to promote gay rights tend to be strongly opposed to private religious education. That their victory in the Surrey case may strengthen precisely the kind of schooling they hate is certainly ironic.
If non-judgmentalists seek the laudable goals of peace and harmony, they do not bring these goals any closer by refusing to confront the inevitability of human judgment and the fact of their own judgmentalism.