And So The Silliness Starts

As expected, the howls of anguish from the 'traditional marriage' lobby were shrill yesterday in the wake of the Supreme Court's commentary (it's not a ruling per se) on the Federal Government's reference questions to it over the subject of Gay Marriage.

On the Canadian Family Action Coalition's website, the howl goes up for a "referendum" on the subject of marriage definition. Of course, CFAC is pretty much using the standard lines about the subject:

"The institution of marriage as man and woman is so fundamental to all major religions that the state should not be allowed to alter it," said Dr Charles McVety, President of CFAC. "You do not have to desecrate the sacred institution of marriage to protect the rights of others." He pointed out, "Common law relations already exists for others."

Er - I hate to point this out, but the government isn't proposing to change the Religious definition of marriage. They are proposing to change the secular definition which defines the relationship in law, not the definition and rules that the various religions apply.

The notion of common law relationships being "there for others" misses the fundamental point of the court rulings as to how the Charter applies in this domain. This creates a "separate but equal" structure which the courts have said, time and again, is NOT equality before the law. Among other problems (as many common-law couples, heterosexual or not will attest), is that there is a huge body of law in this country that uses the term 'marriage' which by definition excludes those in 'common-law' relationships. For example, there have been all sorts of issues with pension survivor benefits under CPP; access to various family support programs etc. which have had to be pushed through the courts. Unless the Federal government is willing to undertake a review of every inch of legislation on the books, and amend each piece to be inclusive, there is a huge problem with legal terminology that would be infinitely costly to solve.

The second point I'd like to make on the notion of deferring to a referendum is quite simple indeed. Part of the role of government is to counter-balance the 'tyranny of the majority' that a "pure" democracy can turn into. Governments are obligated to strike a balance between the will of the majority and the legitimate claims of the various minority groups that are living within that society. Whether we like it or not, the courts have stated that equality is an absolute in the interpretation of the Canadian Charter of Rights and Freedoms. There are many implications to such a statement - some of them are going to make people very uncomfortable. (This author as well at various times, on various subjects)

The second "classic" line of reasoning used is that Marriage is about procreation and raising a family. The anti-homosexual argument is that two people of the same gender can't possibly bring children into the world. Logically true enough, but it ignores the fact that many homosexuals have children from previous relationships or adoption. The assumption also invalidates the marriages of many people who cannot or choose not to have children. The reasons for this range from infertility to birth conditions (such as intersexed persons) to plain person al choice. Does that invalidate their marriages? (go read a biography of King Henry VIII to get an idea how badly abused that notion can get...)

The corollary to the assumption that marriage is about children is the resurrection of the "stay together for the children" thing. The same people who are decrying the prospect of Gay Marriage, also like to cry about the divorce rate. Having seen enough truly dysfunctional marriages that "stayed together for the children" (and the effects on those same children), I simply do not accept that reasoning. If a marriage has become dysfunctional or even abusive (physically or psychologically), it should NOT stay together. It's healthier for all involved to dissolve it.

Do we step back to an era where a marriage must be "consummated" to be valid? Come to think of it, it used to be that a marriage could only be solemnized by a Priest of the Roman Catholic Church. Perhaps we should dissolve marriages not made under those auspices? Or worse still, what about those awful marriages between people of different faiths? My goodness, the definition of marriage has changed over the centuries, hasn't it? Our laws didn't used to allow divorces to occur either. So why are we so worried about another change?

The only downside I see to making this change is that it will inevitably lead to pressure being brought to bear on the various religious bodies to reconsider their current positions. Frankly, that puts the religious side of the discussion right where it belongs - in the Churches, and not in the laws of the land. I would point out that the Catholic Church has been obdurate in its refusal to allow the ordination of women into the priesthood. So far, nobody has taken them to court in Canada over this. Why? Simple - the very Charter of Rights and Freedoms that is being applied to the Gay Rights also protects the rights of the various religions in Canada to their beliefs. Any such challenge would be laughed out of court.

This article in the Globe and Mail does a nice job of trying to describe Paul Martin's inner journey of reflection on this subject. I think it bears reading and contemplation.