The debate over same-sex marriage has been loud but less than sophisticated. Proponents have tried to betray their critics as intolerant bigots, eager to stomp on their human rights, but as the contributors to this collection eloquently demonstrate, there are powerful reasons to question the sudden rush to transform an ancient institution.
Five years ago the House of Commons reaffirmed the traditional definition of marriage by a massive 216 to 55 majority. Darrel Reid and Janet Epp Buckingham, recall then Justice Minister Anne McClellan's unequivocal declaration that the government had no intention of changing the law: "The definition of marriage as a union between one man and one woman is found in the common law of our country." McClellan suggested time might be more usefully spent on "debating other issues as opposed to that on which there is clarity in the law."
McClellan was right to identify the institution of marriage as rooted in common law, yet courtesy of the extraordinary arrogance of the Canadian judiciary, it is now being redefined by the state in the name of a spurious human rights claim. Many MPs, including McClellan, formerly an acting dean of law at the University of Alberta, have suddenly discovered that far from being an issue on which there is no need for debate, marriage is not after all the description of a relationship between a man and a woman. Marriage is no longer to be rooted in social reproduction. Marriage can also embrace relationships between people of the same sex who have no inherent reproductive capacity.
Daniel Cere, in his contribution, highlights the way in which parliament's role was marginalised, with the acquiescence of the government, as judges used the Charter to embrace changes that had previously been anathema to the overwhelming majority of Canadians. In 2003 a parliamentary committee began hearings on the possible redefinition of marriage, following court cases in Ontario, Quebec and BC that challenged the traditional definition. The Ontario Court of Appeal had no intention of waiting for elected politicians to address the question. In June it struck down the traditional definition, calling marriage the "union of two persons." The Chrtien government immediately abolished the parliamentary committee.
Paul Martin is now committed to driving through legislation that will, as University of Alberta law professor, F.C. Decoste argues, constitute a major assault by the state on civil society. Marriage does not have its origins in government but in civil society. Driven by a belief in the desirability of social engineering, the judiciary and the executive propose to claim and transform the institution, even in the absence of popular support, for such a change. It is a disturbing trend: "the subject of the social-engineering state is a vulnerable subject. The subject's values and practices and the institutions through which it constructs its life story, are always open to state surveillance and sometimes management." The extending reach of the modern state might be dressed in progressive rhetoric but at root it is increasingly totalitarian.
The philosophical basis for the emerging legal consensus, Cere argues, can be found in close relationship theory, an approach that captures the preening narcissism that lies at the heart of much contemporary progressive' thinking. Cere's summary bears repeating: "A pure relationship is one that has been denuded of any goal or end beyond the intrinsic emotional, psychological, or sexual satisfaction that the relationship brings to the adults involvedIn so far as marriage itself is drawn into this new culture of intimacy, it is placed on a level playing field with all other long term' sexual partnerships. Severed from its historic roots in sex difference, permanence, and children it is made more pliable, open to constant renegotiation, easily contracted and easily dissolved." The idea that marriage is a lifetime commitment, centred on the altruistic task of nurturing children can scarcely compete with this agenda of permanent gratification. McGill ethicist, Margaret Sommerville, captures the essence of the proposed change: "accepting same-sex marriage necessarily means accepting that the social institution of marriage is intended primarily for the benefit of the partners to the marriage, and only secondarily for the children born into it."
It is endlessly claimed by supporters of same-sex marriage that what is demanded is simply an equality right. In truth the demand is to redefine an ancient institution in ways that strip it of its original meaning. Every adult Canadian has the right' to marry, but marriage is with a person of the opposite sex. Co-editor Douglas Farrow, McGill professor of Christian thought, captures the issue: "If marriage is the union of a man and a woman, the freedom to marry the person of one's choice cannot mean the freedom of a man to marry a man." It is equally claimed that allowing individuals of the same sex to marry' will in no way change the institution for opposite sex partners. This is disingenuous; Cere quotes gay and lesbian rights theorist, Ladelle McWhorter: "if same-sex couples get legally married, the institution of marriage will change, and since marriage is one of the institutions that support heterosexuality and heterosexual identities, heterosexuality and heterosexuals will change as well." What is at issue in this debate is not tolerance of differences but the demand for approval and endorsement of lifestyles and relationships that many Canadians reject. More specifically, we are engaged in a battle to define the public meaning of marriage. Is it to remain consistent with its historic sense or is it to be hijacked and transformed into something different to appease the very small number of Canadians who wish to describe their same-sex relationship as a marriage'?
The suggestion that the proper response to an imperious judiciary lies in invoking the notwithstanding' clause has been met with outrage and portrayed as an attack on the Charter. Ted Morton argues section 33 was inserted precisely to ensure the ultimate authority of parliament and to reign in an activist judiciary. Its use in this case would be particularly apt since the broader history of judicial intervention in the same-sex issue rests not on the explicit provisions of the Charter, whose framers excluded sexual orientation from the equality rights section, but on the courts insisting on reading in' such provisions. Morton argues that whatever one's views on the merits of the particular case there is an overwhelming argument for ensuring that sovereignty on such important questions rests with the people, whether through parliament or a referendum rather than a handful of judicial appointees. Morton argues convincingly that advocates of same-sex rights' ultimately distrust democracy, preferring instead to wage an apparently endless, taxpayer-funded battle through the courts: "Isn't the whole unspoken premise of this affair that the Canadian people can no longer be trusted to decide such issues?"
Many readers will disagree with this book's conclusions but few will come away without a much clearer grasp of the issues at stake and the far-reaching implications of a decision that appears inevitable.