by Klaus Rohrich
December 13, 2004
Recently I heard a talk-radio host explain why making gay marriage legal is so important. His reasoning went something like this: yes we live in a democracy, which by definition is about majority rule, but within that framework we must also protect the rights of minorities, ensuring that they have access to the same legal guarantees that the majority does. Looks good on paper, but the reality is slightly more involved.
Let’s look at the concept of democracy, under which the majority’s will is done. Simply stated, there are winners, as in George W. Bush and Paul Martin and there are losers, as in John Kerry and Stephen Harper. It seems to me that under the definition of "democracy" embraced by the above-mentioned radio host, the rights of the minority should be respected and the outcomes of the american and Canadian elections should provide for both John Kerry and Stephen Harper to be president and prime minister as well. after all, not to allow for this would be "oppressive" to the minority who voted for the two, or at least logic would dictate.
If a society guarantees every minority the right to do whatever they desire, then the term "democracy" becomes meaningless, as there are sure to be conflicting priorities among the various minorities and the majority. Thus if the majority is denied the right to realize its wishes through the ballot or plebiscites, then by definition the majority does not rule. Consequently we are an oligarchy or some other form of totalitarian governance that decides who get what rights.
Guaranteeing everyone the same basic human rights is fundamental to a free society. However, those rights should be balanced against other basic human rights to ensure that one set of rights doesn’t supersede another.
It appears we’ve finally reached that point in our cultural development. The Supreme Court of Canada has issued a unanimous opinion that the government should enact a same-sex marriage law, which allows gay couples the right to get married in the same way that the law currently allows for heterosexual couples. The Court’s opinion concludes that gay marriage "flows" from the Charter of Rights.
However, the Court also cautioned against the violation of the freedom of religion by admonishing the government and human rights tribunals not to compel church weddings of gays, should such be objectionable on religious grounds.
"The performance of religious rites is a fundamental aspect of religious practice," the court opined. "It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion."
So we have finally arrived at the point where judicial and political activism is converging to impose minority rule. It seems curious that less than two decades ago we were enacting legislation that guaranteed basic human rights to everyone regardless of race, creed, religion, national origin and sexual orientation, which in my opinion is only right. How did we so suddenly and with such little public discourse arrive at the conclusion that the Charter of Rights guarantees same sex couples the right to marry? after all, gay couples that chose to consider themselves married had the same property and spousal rights as heterosexual couples did. What’s wrong with the concept of a civil union?
But there is a fundamental flaw in the Court’s opinion that is irreconcilable with the right to marry and religious freedom. as such, it goes without saying that in the very near future the Court will rule that religious unions are a basic human right under the Charter and ministers will be compelled to marry gay couples in their churches or face the legal consequences of a human rights violation. all this after the so-called "human rights activists" insist that a real wedding is only real if it is held in a church.
Remember: you heard it here first.