Canada Redefines Marriage: Is U.S. Next?
BY Kathryn Jean Lopez
June 29-July 5, 2003 Issue | Posted 6/29/03 at 1:00 PM
TORONTO — Two men got married in Canada on June 10, hours after an Ontario court ruled that the country's prohibition on homosexual marriage was unconstitutional.
Michael Leshner and Michael Stark, two prominent homosexual activists who have been a couple for 22 years, were issued marriage licenses, as ordered by the court, and wed in a highly publicized courthouse ceremony.
The homosexual marriage was a first not only for Canada but also for North America. And it came immediately in advance of an imminent ruling from the Massachusetts Supreme Judicial Court, which is widely expected to legalize same-sex marriage in that state.
The Ontario Court of Appeal declared “the existing common-law definition of marriage to be invalid to the extent that it refers to “one man and one woman” and redefined the common-law definition of marriage as “the voluntary union for life of two persons to the exclusion of all others.”
The court ordered the provincial government of Ontario to immediately recognize homosexual marriages in all provincial statutes that deal with marriage, including laws pertaining to the adoption of children.
On June 17, Canadian Prime Minister Jean Chrétien ended speculation that his Liberal government might appeal the Ontario ruling — and another recent pro-homosexual marriage ruling in British Columbia — to the Supreme Court of Canada. Instead, he announced that legislation to codify the new marriage standard for all of Canada would be introduced into the federal Parliament.
Chrétien, who is Catholic, said churches and religious organizations would have the freedom to choose whether or not they wanted to accept the “evolution.”
In a June 19 letter to Chrétien, Bishop Jacques Berthelet of Saint-Jean-Longueuil, the president of the Canadian Conference of Catholic Bishops, forcefully denounced the government's actions.
Bishop Berthelet wrote: “Marriage understood as the lasting union of a man and woman to the exclusion of others pre-exists the state. Because it pre-exists the state and because it is fundamental for society, the institution of marriage cannot be modified, whether by the Charter of Rights, the state or a court of law.”
American supporters of homosexual marriage hailed the Ontario court decision.
“This is another significant ruling in what is becoming obvious to more and more people every day,” Mary Bonauto, civil rights director for Gay and Lesbian Advocates and Defenders and lead attorney in the pending Massachusetts case, said in a statement.
In the week following the Ontario decision, 12 homosexual couples were granted marriage licenses in Windsor, Ontario — including three couples from the United States who crossed the border from neighboring Detroit, the Associated Press reported June 19.
Hoover Institution fellow Stanley Kurtz said the situation does not bode well for traditional marriage in the United States.
“Now,” he predicted, “legal gay marriage in Massachusetts is even more likely than it already was.”
The Massachusetts decision is expected before the end of July.
Canada's recent moves place marriage on a slippery slope throughout North America, said William Duncan, director of the Marriage Law Project, a project of the Catholic University of America, in agreement.
Along with opening the door to cross-border homosexual marriages and potentially influencing the pending Massachusetts decision, “this enshrines a very peculiar notion of marriage into Canadian law,” Duncan said. “Essentially it posits marriage as a purely personal relationship but one to which the government must give its approval so as to avoid “demeaning” the “dignity” of the individuals making the choice.”
And, Duncan said, “it signals an absolute contempt for self-government bordering on democraphobia. A parliamentary committee has been holding public hearings throughout the country on same-sex unions and activists have been furious that this has uncovered large portions of the populace with serious reservations about redefining marriage. The court seems to have felt it must give its decision immediate impact lest the unenlightened decide the issue a different way. “
Jason Kenney, a member of the Canadian parliament for the opposition Canadian Alliance party, said he is not surprised by the Ontario court ruling. However, he said, the Chrétien government should have rejected this judicial incursion into the democratic process instead of embracing it.
“The Ontario gay-marriage decision is the culmination of a decade-long trend in which Canadian courts have become drunk with judicial power and have lost any sense of deference to the democratic process in Parliament,” Kenney said. “The Ontario court decision represents a judicial coup d'etat, and the Liberal government should immediately appeal it to the Supreme Court.”
Opinion polls suggest Canadian public opinion is deeply divided on the issue. And the province of Alberta has already declared it is prepared to use the rarely used “notwithstanding clause” of the Canadian Constitution, which allows governments to declare themselves exempt from the provisions of the Canadian Charter of Rights and Freedoms, to protect itself from any effort to apply the Ontario court decision in Alberta.
“If there is any move to sanctify and legalize same-sex marriages, we will use the notwithstanding clause, period. End of story,” Alberta Premier Ralph Klein said in a June 13 report by the Canadian Broadcasting Corp.
Additional effects of the ruling could include moves for judicial reform.
“We do not have the same level of accountability of judges in Canada as exists in the United States; appointments are made in secret, without public scrutiny,” said Neil Seeman, a Toronto lawyer and senior policy analyst at the Vancouver-based Fraser Institute, a public-policy think tank. “There is an increasing agitation for judges to make themselves accountable to the people, which will only rise with this decision.”
Kathryn Jean Lopez is editor of National Review Online.
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