TORONTO – A Canadian courtroom was recently the scene of an unlikely spectacle: Federal government lawyers passionately defended the traditional definition of marriage in the shadow of three major legal victories for the homosexual movement.
In a country that has been incrementally extending the pension, health and legal benefits of common-law marriage to homosexuals for the past 10 years, it was a surprise to hear federal lawyers defending marriage as “the voluntary union of one man and one woman for life to the exclusion of all others.”
“Marriage is not simply a shopping list of functional attributes,” wrote Roslyn Levine in a Justice Department brief to an April 22–25 Ontario Court of Appeal hearing, “but a unique, opposite-sex bond that is common across different times, cultures and religions as a virtually universal norm.
“Marriage is universally intended ... as an institution to facilitate, shelter and nurture the unique union of a man and woman who, together, have the possibility to bear children from their relationship and shelter them within it,” the federal brief said. It is “designed to meet the unique needs, capacities and circumstances of opposite-sex couples and their children – namely, an institution that brings together the two complementary sexes and provides a supportive environment for the birth and rearing of successive generations.”
Levine said marriage is not a construct of modern or even ancient cultures but “predates our legal framework through its long existence outside of it.”
Much of the brief resonates if not with Catholic doctrine per se then with a natural-law understanding of the universal nature of the marriage bond, observed Daniel Cere, director of the Newman Center at McGill University.
“One could argue,” he said, “that some of the language reflects that there are certain things about the nature of the human condition that cannot be simply dismissed as faith-based.”
Based on the brief, Canada's Liberal government seems determined to overturn an Ontario Superior Court ruling last July that said it is discriminatory to deny marriage to homosexuals.
But in two other rulings, the Quebec Superior Court said last September that opposite-sex marriage violates the constitutional equality provisions of the 1981 Charter of Rights and Freedoms. And on May 1, the British Columbia Court of Appeal ruled that marriage must be redefined as “the lawful union of two persons to the exclusion of all others,” eliminating any reference to the sexes.
In all three cases, the judges asked the high court to change the law – a demand the appeal courts are not expected to rescind.
Some federal government voices are already conceding that the Supreme Court might also find the law discriminatory.
“In all likelihood, Canada's highest court will agree that the opposite-sex definition of marriage is unconstitutional,” said a May 2 government memo to the parliamentary Justice Committee, leaked to homosexual media.
Canada's Constitution includes a “democratic safety valve” that enables Parliament to legislatively override the Court for renewable five-year periods. But no federal administration has ever invoked the clause, and apart from conservative Western Canada, it is widely seen as unacceptable for legislators to contradict the courts.
Instead, the government will likely fall into line, said John McKay, a Liberal Member of Parliament who opposes same-sex marriage.
McKay sits on the House of Commons Justice Committee, assigned by Martin Cauchon, the minister of justice, to conduct Canada-wide public hearings and report in June. (Unlike congressional committees, Canadian parliamentary committees are beholden to the executive branch.)
“I think [Cauchon] will bypass the appeals and simply ask the Supreme Court for a reference. He will proceed as if same-sex marriage is a done deal,” McKay said. “Our report will count for nothing.”
McKay said government lawyers are merely buying time.
“They wanted to maintain the illusion of consultation when all along EGALE [Equality for Gays and Lesbians Everywhere], easily the most powerful lobby in Canada, was in the driver's seat,” he said.
Equality for Gays and Lesbians Everywhere's spokesman, John Fisher, said in a March 31 press release, “The onus is on [Cauchon] to clearly state, once and for all: Is he committed to upholding the Constitution and ensuring the right to equality of same-sex couples is respected, or will his government continue to discriminate against us by denying us the equal right to marry?”
However, to change the law would contradict a key 1999 House of Commons vote, in which members of Parliament voted 216 to 55 across party lines to affirm that “marriage is and should remain the union of one man and one woman to the exclusion of all others. ... Parliament will take all necessary steps to preserve this definition of marriage in Canada.”
Cauchon, Prime Minister Jean Chretien and his expected successor Paul Martin were among the 216, though Martin has since stated publicly that he will not resist the courts on the issue.
The pace of events has found pro-marriage advocates unprepared, said McGill University's Cere, who was a witness before the House of Commons committee earlier this year.
“There has been little debate in the academy about the radical nature of what is being proposed,” said Cere, who recently founded the Institute for the Study of Marriage, Law and Culture at McGill. What is needed, he said, is a “strong body of academic writing to focus on the culture of marriage, the complex sociobiological environment, the role of procreativity and so on.”
In light of the May 2 memo, Ottawa might appear to be giving up.
“The recognition in law of same-sex marriage is about fair play, equality, inclusiveness and justice, values that are consistent with our government's commitments,” it said.
Speaking to reporters May 1, Cauchon was clearly impressed by the unanimity of the three court rulings. “Three decisions are going exactly in the very same direction,” he said. “So I have to take that into consideration.”
But the defenders of marriage believe the battle is not yet lost.
“In the past, our common understanding of marriage was so taken for granted, as a given, that no one felt the need to present a strong argument in favor,” Cere said. “People are only realizing now that we need to promote that understanding in a positive and compelling way.”
Chris Champion writes from Ottawa.