The marriage debate is not a human rights debate

The National Post, 8 October 2021

New Zealand 's Bill of Rights, unlike Canada 's Charter of Rights, mentions sexual orientation as a prohibited ground for discrimination. In 1999, however, New Zealand 's highest court rejected the claim ( Quilter v. Attorney General ) that this implied a capacity and a right for two homosexuals to marry. Last year the United Nations Human Rights Commission concurred, refusing to hear an appeal. Yet Canadian courts are claiming that such a right exists, and have declared marriage, as a heterosexual institution, to be a transgression against basic equality rights. The Canadian people and parliament are profoundly uneasy about this, and should be. For the Canadian courts, with the blessing of ideologues in the Justice Department, are queering human rights discourse.

The human rights argument goes something like this: Marriage is a close personal relationship between two adults, involving sexual intimacy, which is formalized by public vows and public recognition. The traditional stipulation that the adults in question shall be of different genders denies to same-sex unions the public legitimacy of heterosexual unions. In so doing it demeans homosexuals and affronts their dignity, by implying that their capacity to love is deficient or that their love is somehow unworthy of public approbation. Adding a minor injury to a major insult, it also denies them one or two legal privileges they do not already enjoy. For these reasons it must be denounced as a human rights violation and disallowed under Section 15. Marriage must be redefined as a union of two persons without consideration of gender, so as to become inclusive of all Canadians.

Now this conclusion has been attacked for all sorts of reasons. Chief among them are the false notion of human dignity on which it rests; the fact that it dissociates marriage from procreation, and children from their natural parents; the threat it poses to freedom of speech and religion, protection of which in the proposed legislation is hopelessly inadequate; and the ripple effect of celebrating homosexuality on public policy matters such as school curricula. (Not to put too find a point on it, at just what stage in your son's schooling would you like him taught the best ways of sticking his penis up another lad's rectum?) Some people have begun to think quite hard about such objections, as I discovered recently at a fascinating meeting of academics, lawyers, publishers and politicians from across the country. But too few people seem to have noticed that the human rights argument itself is just plain wrong. More than wrong, it is dishonest – a piece of subterfuge that discredits the label “human rights.”

First, there is a dishonesty in saying that marriage has been an exclusionary institution. On the contrary, marriage has always been a universal institution to which every Canadian adult has access in principle, even if for various reasons (homosexuality among them) some adults find themselves unsuited for it. Due recognition of this fact would already take most of the steam out of the human rights engine that is driving the Canadian marriage debate off the rails. But there is a still more serious dishonesty that we must notice, a dishonesty lodged in the basic structure of the human rights argument.

The conclusion of that argument is that marriage must be redefined as a union of two persons, so as to protect the equality of homosexuals. The conclusion only follows, however, because marriage has already been redefined in the argument's very first move. A new way of understanding marriage – not as a heterosexual union with unitive and procreative purposes, but as a “close personal relationship” between two sexually intimate adults – has been imported at the outset. The “two persons” language demanded in the conclusion is already there, implicitly, in the first premise. The argument, in other words, is circular.

It may be true that marriage – if indeed merely a union of two persons – would violate equality rights were same-sex unions disallowed. The following syllogism sums it up: Marriage is the loving union of two persons. Homosexuals are capable of loving unions with one another. Therefore homosexuals can and should be permitted to marry one another. This begs at least two rather obvious questions, viz., what compelling public interest do “loving unions” serve, whether homosexual or otherwise, and what test of authenticity (if any) shall we subject them to? But that is not my objection. My objection is that the definition of marriage is exactly what is at issue here. No definition can be used like this to prove an equality right, or to demonstrate a rights violation, until the viability of that definition has already been settled on other grounds.

In short, the debate we Canadians are having about marriage is not actually a human rights debate. It is a debate about what marriage is, or what we would like it to become, which has been disguised as a human rights debate so as to provide leverage in the courts. It is hard not to interpret the actions of those intent on maintaining this disguise – not to speak of those judges and politicians who take cover behind it – as betraying a certain cynicism about human rights discourse as such.

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