Missing the Point - Entirely

I was browsing the "Letters to the Editor" of the Calgary Sun this morning and found the following letter:

Sorry to burst Link Byfield's bubble, but one of the distinguishing features of a democracy is to protect rights of minorities and often it comes down to a battle by that minority to obtain those rights through court action. Courts are there by appointment of the government to assure they are not guided by public opinion but instead by their morals, values and conscience. Instead of clouding the issues as Byfield and many detractors do, why not state facts. They are against homosexuals having the right to marry and commit to the person they love and wish to spend their lives with. Discrimination is discrimination. If you substituted "black," "aboriginal," "Jew" or another minority, this would never have been a major issue.

Paul Alberstat

(What makes the court's morals, values and conscience superior to those of the public?)

What I found most interesting wasn't the letter itself, so much as the footnote appended by some half-wit at the newspaper. Contrary to popular misconception in Conservative Alberta, the Courts don't deal in morals, values and conscience per se. They deal in something called LAW.

Governments - and hence, politicians - deal with creating law that reflects morals, values and conscience - within the framework of the Constitution of this country and the body of case law that has been built around that.

Of course, the current crop of "Conservatives" - I personally tend to think of them as "Idealized Regressives" - want to legislate on all sorts of things based largely on pseudo-Christian teachings, and a belief that there was an ideal society somewhere around 1950.

The real error that they often make is around legislated morality. There are many spaces where it is difficult, if not impossible, to codify in law the boundaries. In the late 1970s, there were numerous court challenges against what were then called the "Obscenity Laws". These laws made it illegal to import, distribute or purchase "obscene" materials in Canada. Depending on how one read the word 'obscene', the Sears Catalogue could have been treated under those auspices. The noble intention of those laws was, of course, to keep hard-core pornography out of the country. The error in those same laws was in the failure of the legislators to define the term "obscene" successfully. Time and again, the laws were applied inappropriately - to ban a work of art, while still allowing Playboy to be sold in corner stores. After each failed challenge before the courts, legislators would go back to the drawing board and attempt to refine the wording into a form that the courts could work with - and failed every time.

Thinking back on that era, it occurs to me that the mistake of the legislators was obvious. They completely failed to define the harm that they were trying to prevent. There was a vague understanding among them that something had to be done, after all some pretty awful pornography was crossing the border into this country. If the lawmakers had been able to codify the harm that they wished to prevent with this legislation, then it might have stood the test of time.

The current debate around the legal definition of marriage suffers from the same problem. Amid a great gnashing of teeth, and howls of protest that society will crumble, nobody opposed to same-gender marriages has yet defined in credible terms the harm to society. There is much gesticulating at musty old scriptures and declarations of "wrongness", but no real explanation of harm. Define the "harm" to society, and then you might get something that resembles an intelligible law that will be sustainable before the courts.