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A little less haste on gay marriage

The National Post, 31 January 2022

The Government moved this week to address "a democratic deficit" by expanding its reference to the Supreme Court of Canada on the marriage question. It is indeed encouraging to note the Justice Minister's insistence that "the final decision on this question will be made by Parliament in the spirit of open debate." Not quite so encouraging that the thrust of his announcement was to invite "those groups and individuals who do not agree with the Government's approach to put their case to the Court." The question as to who is actually running this country remains a murky one.

The fourth reference question, which offers the Court an opportunity to over-rule the provincial courts' rejection of traditional marriage, will be welcomed by many Canadians, especially perhaps by the 67% who believe that preserving the opposite-sex nature of marriage is important. But a better course of action would have been to withdraw the reference altogether. For behind the reference, of course, lies the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes - the Chrétien Government's premature response to the crisis created by the Halpern decision in Ontario.

Whatever comes of the current reference, and of the Parliamentary debate to follow, something very much better than that legislation is called for. Here are four reasons why, drawn from a letter sent earlier this month to the Minister of Justice in collaboration with several other Canadian scholars.

First, the legislation was drafted without the benefit of due process. In a vote crassly manipulated to obtain an otherwise unobtainable outcome, the work of the Justice Committee which held cross-country hearings on marriage was brought to a sudden halt two days after Halpern. Within a few weeks the aforementioned Proposal was sent off for scrutiny by the Supreme Court without being subjected to one iota of scrutiny by the representatives of the people of Canada. One might think (and, to his credit, Mr. Cotler apparently does) that legislation on society's most fundamental institution, especially when overturning the universal norm of that institution by removing from it any trace of its procreative interests, might warrant a little less haste in preparation.

Second, the legislation concedes through its preamble that the traditional understanding of marriage is rooted in prejudice, and contrary to the principles of "tolerance, respect and equality." This is a grave slight against the goodwill and integrity of all Canadians who have held the traditional view (Paul Martin Sr., who helped draft the pro-family preamble to the 1960 Bill of Rights, comes to mind), not to speak of peoples and nations around the world. To adopt legislation containing such an allegation would be an unprecedented and deeply offensive act.

Third, the legislation itself threatens to generate intolerance. Public policy decisions based upon it, fuelled no doubt by further litigation, must lead to the marginalization and suppression of individuals and communities who cannot in good conscience accept the hasty social experiment it entails. The difficulties will by no means be confined to the question raised in the reference respecting what actions clergy are, or are not, obliged to undertake! That protection for clergy even requires consideration speaks volumes about the illiberal character of this legislation, and about the threat it poses both to freedom of religion and to freedom of speech. Mr. Cotler spoke this week of "support for religious freedom" as one of the three principles on which the Government intends to act. But neither the legislation nor the reference drafted by his predecessor shows any sign of even a rudimentary understanding of religious freedom.

Fourth, and most importantly, the legislation would have an extremely harmful effect on the rights of children. By establishing a genderless definition of marriage as the legal norm in our nation, the proposed bill divorces marriage from one of its core social purposes: the bearing and raising of children in the optimum environment of their own parents' love and support. In effecting such a divorce - and this implication is unavoidable - it undermines the ideal that every child should be raised by his or her own parents, and have both a mother and a father. For marriage, heterosexually understood, is the only institution which upholds that ideal. Indeed, it is the only institution we have that honours the prima facie right of a child, recognized in the United Nations Convention on the Rights of the Child, "to know and be cared for by his or her parents."

Other reasons might be offered, but these are already sufficient for people of goodwill to call upon the Minister of Justice, and on the Government he represents, not only to re-establish a free and open debate on the marriage issue in Parliament, but to grapple in a much more patient and serious way with the principles of equality and of religious freedom. If the current step - adding a fourth reference question - signals a willingness to do that, fine. If on the other hand it represents no more than an attempt to buy a little time, and a bit more cover from the courts, it will be greeted with the cynicism it deserves. We hope and trust that the former is the case.


Douglas Farrow Associate Professor of Christian Thought, McGill University David Novak J. Richard & Dorothy Shiff Professor of Jewish Studies, University of Toronto

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