The Rights of Marriage
by Paul Albers
January 19, 2005
What part of no answer' is it that the Liberals don't understand? The Supreme Court's ruling on the proposed same-sex marriage legislation was supposed to be their magic bullet against opponents of the bill but the Justices surprised everyone and declined to pull the trigger.
The court only reaffirmed the position that it has stated in the past, that government can redefine marriage if it wants to, while refusing to say that government must redefine marriage to include same-sex couples. You would never know that listening to Justice Minister Irwin Cotler though.
Having failed to get the Supreme Court to do Parliament's job, the government is now elbowing in on the court's domain. Cotler assumed the authority to speak on behalf of the court when he stated, "The moment the court affirmed the constitutionality of extending civil marriage to gays and lesbians, at that very moment, it is declaring the opposite-sex requirement for marriage is unconstitutional."
If the fourth question was redundant, then why did Paul Martin add that question to the reference in the first place? Adding that question seems to indicate that the Liberals knew that a ruling for the constitutionality of same-sex marriages wouldn't automatically make such marriages mandatory. Those in favour of same-sex marriage are on very shaky ground when they claim the Charter demands what they want. The words can' and must' have very different meanings.
The Justices admit in the text of their ruling that the last question was avoided because a potential yes' answer would conflict with the lower court's rulings that established same-sex marriage in six provinces. But it is part of the role of a higher court to be a check against flawed decisions by lower courts, even if doing so runs counter to government objectives or causes a degree of disarray as unsound laws are struck down.
The excuse used to avoid answering the last question could have easily been applied to the second question as well. Both questions requested a ruling on the constitutionality of a definition of marriage, and in both cases there was the potential of an answer that would undermine Provincial court rulings. The court was perfectly comfortable giving an answer that promoted same-sex marriage in the second question. Declaring the traditional definition of marriage constitutional would be consistent with past rulings, but it appears they chose to be silent rather than say something unhelpful to the Liberals agenda.
And so the Liberals continue to champion the false claim that same-sex marriage is a human right. If Canadians and their elected MP's don't know how to tell a human right from a privilege, a lot more than just the traditional definition of marriage could be lost.
The foundations of all human rights rest on the concept of morality. It is immoral to deprive people of rights such as freedom of speech, freedom of conscience or the right to own and control their own property. Rights are equally applicable to every person. Laws and government can recognize human rights or not, protect them or not, but they always exist regardless of those circumstances. Even so, the job of defining the moral system that determines what human rights are accepted and defended by government still has to be carried out by someone.
In a theocracy, the moral bedrock would be defined by a group of religious leaders. In a democracy, the citizens would set those standards collectively by democratically amending the law and constitution to reflect the moral views of the citizens. Canada is not a theocracy, thankfully, but its credentials as a democracy are not what they used to be. Rather than allow Canadians the chance to voice their will in a national referendum, the Liberals are attempting to impose a morality that really is nothing but party ideology. Perhaps this system of government should be called an idiocracy.
What is it that separates a human right from a privilege? How can you tell them apart and what role should majority rule have in human rights issues in a democracy? More importantly, how do the answers to these questions apply to the issue of same-sex marriage? These questions will be examined in Part 2.
Paul Albers is a freelance columnist living in Ottawa