May 7, 2003
Culture wars are killing marriage
The Canadian Kulturkampf is heating up, now that the courts are speaking as one on the marriage issue. Marriage is a discriminatory institution, a violation of Section 15. It must be abolished. All that remains is for Parliament to prepare the funerary legislation.
The conceit that the courts' remedy is not an abolition of marriage, but merely its re-definition, is just that. As a monogamous heterosexual union, marriage competes with other models (including homosexual and polygamous ones) for structuring sexual and domestic arrangements. When prised open by legal force to one or more of these competing models, it is effectively destroyed.
The conceit may be necessary in order to escape the charge that the courts are actually ordering illicit alterations to the 1867 Constitution Act, but a conceit it is. One can no more capture the essence of marriage by talking about "the union of two persons" than one can capture the essence of slavery by talking about an asymmetrical support arrangement. Such abstractions only obscure the definitive features.
Marriage is not merely a union of two persons. It is a gendered union with specific social goods attached. The state -- which did not invent marriage and has no authority to re-invent it -- rightly takes an interest in marriage on account of these goods: stability of community and property, of human reproduction and the care of children, of cross-gender and cross-generational bonding, etc. But the courts' new definition eliminates all this, by substituting for a gendered phrase ("one man and one woman") its genderless one.
This neutered definition mandates a very different institution with extremely limited -- and still unproven -- social goods. The new institution will attempt to live off the name and earnings of the old one, but it will not be able to do so for long. Indeed it will not survive for long, since it will not really be an institution at all but a legal fiction, and an incoherent one at that. Here are a few of the reasons for its inevitable failure.
First, it is not obvious that it should be "a union of two persons to the exclusion of all others." Is not the very idea of an exclusionary institution dubious? In any case, this restriction will affront the dignity of bi-sexuals and polygamists. No appeal to the needs of children will suffice to defend it, since the new institution uncouples marriage and procreation, making an orphan of the latter. Besides, it has already been decided that a child can have several parents. Nor should it be overlooked that, in same-sex unions, a third party is required in order to produce children. No, "two" will not stand up.
Second, it is not clear why this institution should be sexual in nature, or at least why the state should take any interest in whether it is sexual. The same argument used to exclude procreation as a defining feature can be used to exclude sexual activity altogether. Why should two (or more) spinsters, mutually reliant in every other way, be excluded because they don't venture into each other's erogenous zones? What interest can the state -- Trudeau's state! -- possibly have in whether they do or don't? " Union " need not mean sexual intimacy.
Third, it is doubtful whether this institution should concern the state in the first place. Are people living in pairs better citizens than people living in other forms of community? Take reproduction and cross-gender bonding out of the picture, and what picture is left? What is there of vital interest to the state? In other words, why set up this alternative to marriage at all? Enlightened by our Charter we will rid ourselves of marriage, as (enlightened by the Bible) we did of slavery. Why not leave it at that?
Fourth, the major religious communities will likely refuse to endorse this new institution, and many will refuse to participate in it. This will highlight its character as a legal fiction. The public will lose interest in it, and it will cease to be the bearer of any status in society. As such it will not be coveted, and will no longer do even the limited service it was created to do, viz., satisfy the appellants' demand for approbation.
Some, however, will still covet the respect the religious communities reserve for marriage. As the B.C. judgment anticipates and the Marc Hall case illustrates, they will continue to sue. And then the courts will find themselves having to choose between Section 15 equality rights and Section 2 freedoms. This is not supposed to happen and the remedies for it are -- as yet -- virtually unthinkable. Some of these remedies, while claiming to balance Section 2 and Section 15, will dangerously erode freedom of speech, freedom of association, and freedom of religion.
Charter jurisprudence, I fear, has allowed itself to become a combatant in this culture war. That is why it has chosen to sacrifice marriage on the altar of a spurious equality right, and to attempt to resurrect it as "the union of two persons." This is a futility in which Parliament is about to become complicit. If it does, it will only drag Canada deeper into a quagmire of competition between two incompatible visions for society: one which sees marriage as a tried and tested good which must be privileged, and one which out of jealousy refuses to privilege it, consequences be damned. Is it really too late to turn back?