Last Updated:Friday - 09/24/2010
January 31, 2005
Give people time to decide
Prime Minister Paul Martin has threatened to fight an election over the alleged right to same-sex "marriage" should the Conservative Party manage to pass a bill that would apply the notwithstanding clause to implement a moratorium on these "marriages." In such a campaign Martin would no doubt cast himself as the defender of the Charter of Rights and Freedoms, forgetting - and asking us to forget - that without the notwithstanding clause there would be no charter.
Perhaps one should applaud the prime minister's new-found enthusiasm for taking this issue to the people. He and his predecessor have done their best to make same-sex marriage a reality without the benefit of public debate.
A brief survey of the history of this issue is worth undertaking.
During debate on the charter in 1982, then-Justice Minister Jean Chretien was repeatedly asked to enshrine "sexual orientation" as a prohibited ground for discrimination. On at least 17 occasions, Chretien refused, saying, "Nobody knows what it means. What is sexual orientation?" (Good question -one that still has not been adequately addressed.)
Skip ahead 15 years and we find the Supreme Court "reading in" sexual orientation to the charter, despite the explicit and repeated refusal of elected representatives to include it.
In 1999, the House of Commons, in a free vote of 216 to 55, reaffirmed the traditional definition of marriage. A couple years later, the Commons justice committee travelled the country, drawing the pulse of the nation on this topic. It heard more than 250 oral reports and received more than 400 written submissions.
But before the committee of elected representatives could issue its report, the Ontario Court of Appeals brought in its historic ruling that the ban on same-sex marriage violated the charter. Rather than appealing the ruling to the Supreme Court (probably a fruitless approach anyway) or deciding to fight the issue on the basis of the 1999 Commons vote and the 1982 charter deliberations, the federal government (now led by Chretien) caved in.
It cancelled the justice committee's deliberations and asked the Supreme Court whether extending the right to marry to same-sex couples was consistent with the charter. To no one's surprise, the court last month said the proposed legislation, "far from violating the charter, flows from it."
The Martin government immediately vowed to plough ahead with the legislation and said there would be no national referendum on the topic. Martin said the Liberal caucus, badly divided over the issue, would be allowed a free vote. But freedom only applied to backbenchers.
Liberal MP John McKay, vice-chairman of the justice committee during the thwarted public discussions, told the Commons in 2003, "The courts have felt perfectly free to ignore everything that Parliament has said to date and I daresay will ignore everything that goes on here today. Parliament is irrelevant because it allows itself to be irrelevant."
Irrelevance was a convenient choice for a government that favoured same-sex marriage but didn't want the responsibility of implementing it. The judges have ruled the day, reducing marriage to a legal contract when for eons it has been a covenant - a relationship with many more dimensions than the merely legal.
Now Martin proposes to fight an election over the issue. This will not bring us any closer to a resolution.
Although the Liberal cabinet supports same-sex marriage, no opposition party is offering a clear alternative. The Conservatives would like to have their cake and eat it too. They cast themselves as the defenders of traditional marriage, but refuse to employ the one instrument that would defend it - the notwithstanding clause.
It is time for Canadians to take back their country from the lawyers and judges who have narrowed our view of marriage to the merely legal. Toronto's Cardinal Aloysius Ambrozic is right when he says Canadians need the five years invoking the notwithstanding clause would give them to soberly reflect on this issue (WCR, Jan. 24).
"So far, the debate has been among lawyers," Ambrozic wrote. "It is time for there to be a debate in Canadian society as a whole. It is time for ordinary Canadians to be given sufficient opportunity to discuss the issues and to reflect on the deeper implications before a debate occurs in Parliament and a decision is made that could irrevocably change the nature of marriage and the family in Canada."
If Martin is serious about a responsible and democratic debate, that is the route he should choose. Quit the histrionics and give us a five-year debate where the people can adequately reflect on the adequacy of a tradition that is thousands of years old.
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