Appealing for human dignity

The National Post, 30 July 2021

Yesterday the Justice Department announced its decision to appeal Halpern v. Canada . I have been reading this document, and have reached the surprising conclusion that even homosexuals should be glad of this appeal. Indeed, they and their fellow citizens – and eventually a higher court – should reject Halpern in principle. Why?

Mr. Justice LaForme justified the unanimous decision to strike down the common law definition of marriage as unconstitutional on the grounds of what he calls its “many egregious infringements” of Charter rights. If I dare say so, there are more egregious infringements of reason in Halpern's arguments than there are infringements of rights in the common law definition of marriage. But this is not the place to make good on that claim, nor is it necessary to agree with me on that to agree that Halpern should be rejected in principle.

The reason why it should be rejected in principle derives neither from a point of law nor from a point of logic. It does not derive from an argument over the meaning of marriage, or whether there is a public consensus to change the meaning of marriage – or even whether such a consensus could possibly warrant the redefinition of marriage. It derives rather from the Court's misunderstanding of its task of upholding human dignity.

The Ontario Superior Court has largely accepted the view of the applicants, and of their intervenors, “that ‘marriage' represents society's highest acceptance of the self-worth and the wholeness of a couple's relationship, and thus touches their sense of human dignity at its core.” [§103] That refusing to recognize homosexual unions as marriage is “demeaning because it impugns this group's ability to love and [so] affronts all Lesbians and Gays.” [§212] That, in denying them “the autonomy to choose whether they wish to marry,” it also “conveys the ominous message that they are unworthy of marriage.” That, for those who wish to marry, it “represents a rejection of their personal aspirations and the denial of their dreams.” [§429]. Justice LaForme thus fittingly concludes his own account of the situation with a quotation from Martin Luther King, Jr.: “Now is the time to lift our national policy from the quicksand of injustice to the solid rock of human dignity.” [§475]

In other words, the Court has made the assumption that society's high regard for marriage implies both a corresponding regard for the human dignity of those who enter into it, and a corresponding disregard for the dignity of those whose mode of life, while analogous in important respects, it does not deem to be marriage. Indeed, the latter's ability to love and their worthiness to marry are called into question along with their dreams. It is not merely that their autonomy is threatened – one cannot, after all, have autonomy in the matter of society's approbation – but that their sense of intrinsic worth is threatened by this lack of “full acceptance.”

We might well ask in response whether society' high regard for marriage implies any such things, but that would be to miss the most important point: namely, that the Court has deemed it necessary to protect the appellants from this alleged affront to their “sense” of dignity. Now this is not unusual. To pose the question of human dignity in terms of a person's, or a group's, self-image is today a matter of course in pursuing court-constructed Charter law. But this as much as anything accounts for the fact that “the solid rock of human dignity” is itself slipping into the quicksand of injustice. For self-image and self-perception can never provide a stable foundation for the concept of human dignity.

It is equally important for homosexuals and for heterosexuals to face up to this. It is absolutely vital that our judges and legislators face up to it. But Halpern has most certainly not faced up to it. On the contrary, it has further entrenched the erroneous notion that respect for one's human dignity is intrinsically linked to respect for one's self-perception; that equality rights imply the right to full acceptance. Full acceptance is something no court and no legislature is in a position to dictate or to deliver. Therefore law that aims at it is bad law. As for self-perception, it is both a facet of our freedom from the law and an internal threat to that freedom. Because it is prone to attack by a host of insecurities, flatteries and deceptions – because it is ever-changing – it is a potentially treacherous friend which ought never to be allied with the law. Above all, it must not be made the guardian of our human dignity.

This single mistake – though not its gravest – is sufficient to warrant Halpern's rejection in principle. It also accounts for at least one of its logical inconsistencies. The implication of the applicants' claim that the common law definition violates “their sense of human dignity at its core” is that the definition itself derives from a deep-seated prejudice. And what does that prejudice represent if not those other people's contrary sense of human dignity, rooted in their own self-perception? But how then can the definition be declared unconstitutional without creating a reverse violation?

Clearly we will never get anywhere this way! Good law cannot be made to rely on the unreliable gauge of self-perception. It must rest rather on a sound understanding of what human beings are, of how human dignity is derived, and of what actually supports human flourishing. It is a sign of Halpern's impoverished understanding of human dignity – an impoverishment dangerous to heterosexuals and to homosexuals alike – that its glance keeps on returning to this faulty gauge. And it is very much to be hoped that the impending appeal will effect a reversal of its procedure.