From the October, 2003 issue of Touchstone

Canadian Infidelity by Ian Hunter

Canadian Infidelity

Ian Hunter on Courts, Churches & “Gay Marriage”

For what is probably a minority within a minority—homosexuals who want to enter a traditional marriage—the recent unanimous decision of the Ontario Court of Appeal in Halpern et al. v. A. G. of Canada is good news. The court held the existing definition of marriage as a lifelong union of a man and a woman to be contrary to the Canadian Charter of Rights and Freedoms. Henceforth, marriage means the union of any two “persons”—but why only persons and why only two is left unclear. Whether this result is good news for Canada, we shall all wait and see: The court has spoken; we, its vassals, obey.

The decision is also good news for those Canadians fed up with democracy. After all, the political process is lengthy and frustrating. It is hard to persuade one’s fellow citizens, and the resulting political compromises are maddening. How much quicker, how much nicer, to have anonymous judges answer the great existential question: How shall we then live? It saves time, debate, and especially thought.

It is difficult to believe that some Canadians—those who support the traditional definition of marriage, a definition that has sustained several millennia of civilization and is supported by virtually all the world’s recognized religions—still can’t get with the program or admit defeat. Such people call on the Minister of Justice to appeal the Ontario decision to the Supreme Court of Canada. My in-basket immediately filled up with e-mails from religious and pro-family groups urging an appeal.

What do they think? That the Supreme Court decision will somehow be different? The Supreme Court of Canada is the most gay-friendly court in the land; it has consistently swept aside religious claims in favor of expanding “gay rights.”

Federal Justice Minister Martin Cauchon soon announced a complete government capitulation to the court’s edict. The government has now drafted a new definition of marriage, embracing any two persons, and has submitted the proposed legislative amendments to the Supreme Court of Canada, by way of reference, to make sure that they are acceptable. Such is Canadian democracy.

The Facts

The facts of the case are straightforward. Seven couples sought to marry in civil ceremonies. Each application for a marriage license was turned down by the Registrar on the basis of the accepted statutory and common-law definition of marriage. But the Ontario Court has now held this definition to be “underinclusive” and a violation of the equality rights guaranteed in section 15 of the Charter of Rights.

Although “sexual orientation” is not a protected ground in the Charter, the Supreme Court of Canada “read in” sexual orientation in the 1995 case of Egan v. Canada. The court held that “sexual orientation is an analogous ground” to race, national or ethnic origin, religion, age, sex, or mental or physical disability, in that “it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal cost.”

Making due allowance for the peculiarly unintelligible manner of judicial expression, the second paragraph of the Ontario decision would have allowed any perceptive reader to predict the eventual result many pages later: “This case is ultimately about the recognition and protection of human dignity and equality in the context of the social structure available to conjugal couples in Canada.”

The Ontario decision has implications for other institutions and individuals. Although the Court said: “We do not view this case as, in any way, dealing or interfering with the religious institution of marriage,” it is difficult to take this claim seriously.

The mainline Protestant denominations in Canada will have no difficulty adjusting to the new reality. In a generous spirit of accommodation, they have already rewritten Scripture. Whereas formerly St. Paul expressed certain reservations, now the pew Bible reads: “The flesh lusteth with the spirit, and the spirit with the flesh, so that we can all do whatever we have a mind to, for who are we to judge between them.”

Indeed, the United and Anglican Churches are ready with special rites and blessings, just waiting for the breathless couples to arrive. No doubt they hope this new constituency might staunch their freefalling membership, but experience suggests otherwise. Doctrinal and liturgical innovation has a way of driving out the faithful without bringing in the anticipated new market.

For smaller Evangelical churches and for Roman Catholics—those institutions so quaintly unpostmodern as to believe that Scripture says what it means and means what it says—the problem is acute. It is only a matter of time, and likely a short time, before a gay couple shows up at the priest’s study demanding a church wedding. As John McKay, a member of Parliament from the Liberal party, said: “As sure as God made little green apples, gay activists will take clergy to court if they refuse to marry gay couples.”

The minister who refuses would not only be preferring his own interpretation of the Bible to the courts’ interpretation of the Charter, but if a bill (C-250) currently before the House of Commons passes, as seems probable, any publicly expressed reservations about homosexual marriage will be construed as a hate crime and punished by criminal prosecution.

Impotent Parliament

The Ontario decision is useful in showing up the impotence of Parliament. The decision was issued even as an all-party committee was putting the final touches to a report. They had just completed a series of what were laughably called “Consultations with Canadians” on whether same-sex couples should be allowed to marry. All their traipsing around, all those sittings, those earnest points of order, all that public expense—all for naught; before their report was finished, homosexuals were being wed at city hall.

No doubt Canadians will have forgotten this by the next election, but in case they haven’t, they might consider asking candidates just what point Canadian elections serve? Or ask the earnest wannabe at their door: Why do you aspire to be a political eunuch? Since the Charter, most important policy decisions are made by the courts. Even the Leader of Her Majesty’s Opposition, Stephen Harper of the Canadian Alliance, acknowledged in a recent speech that Parliament was in danger of becoming an anachronism.

The Ontario decision is bad news—perhaps the worst news—for teachers of constitutional law. There is no particular reason why anyone should shed a tear for such prancing prima donnas, but no one likes having the rug pulled out from under him. In the face of the argument that the Charter of Rights transformed Canada from a regime of parliamentary supremacy into one of judicial supremacy, they had insisted: “No, no: the Charter opens the way for a dialogue, that’s all, between Parliament and courts.” Some dialogue! They speak. We obey.

At least the earlier decisions of the British Columbia and Quebec courts had perpetuated the “dialogue” sham. These courts gave Ottawa a two-year grace period to change the law. But not Ontario. No, the three Ontario judges struck the law down without so much as a by-your-leave in Ottawa’s direction. Effective immediately.

Dialogue, my hat. Monologue is putting the point very politely indeed.

Immediately after the decision, the Canadian Conference of Catholic Bishops wrote to the Minister of Justice. The CCCB called the court’s decision “unconvincing and disappointing.” The bishops’ letter went on: “The Court’s conclusions about the objectives of marriage should concern Canadians about the future of our country and Members of Parliament who are ultimately responsible for the development of social policy in this country.” It concluded by reminding the Minister that “Millions of Canadians, who have invested a great deal of hope and meaning in marriage, are counting on you.”

What the bishops’ letter did not mention is that Madam Justice Eileen Gillese, the putative author of the Halpern decision, is herself a Roman Catholic. Rather than urge a fruitless appeal, one that is certain to lead to the same result, perhaps the Catholic bishops might debate whether there should be denominational consequences for Catholic judges and politicians (in Canada, one and the same) who consistently flout church teaching.

Ian Hunter is Professor Emeritus in the Faculty of Law at the University of Western Ontario. He is the author of biographies of Robert Burns, Hesketh Pearson, and Malcolm Muggeridge.

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