Same-Sex Marriage – Some Public Policy & Religious Concerns

Notes by Hon. David Kilgour, M.P.
Edmonton-Mill Woods-Beaumont
Young Adults and the Fitzroy Harbour Ministerial

Carp, ON
February 19th, 2005.

PUBLIC POLICY CONCERNS

A number of essays in Divorcing Marriage – Unveiling the Dangers in Canada’s New Social Experiment, published for the Institute for the Study of Marriage, Law and Culture by McGill – Queen’s University Press, articulate concerns a lot of Canadians appear to share on this very hot button topic.  Some of the points that caught my attention are the following:

Daniel Cere, Director, Institute for the Study of Marriage, Law and Culture, Montreal:

In 1999, the House of Commons reaffirmed the historic definition of marriage, 216 to 55; in 2001, the BC Supreme Court held that the common law definition of marriage could not be altered without an amendment to Canada’s Constitution.  By 2002, however, the Ontario Supreme Court challenged the existing definition and this was followed by similar decisions in the Quebec Supreme Court and the BC Appeal Court.

In response, the Chrétien government established a parliamentary committee to examine the issue; in 2003 it heard nearly 500 submissions from coast to coast to Iqualuit.  On June 12, 2003, the Ontario Court of Appeal purported to redefine marriage for residents of Ontario as a “union of two persons.”  Two days later, the committee’s work was shut down by the Chrétien government.  On June 17 the then Prime Minister announced his government would draft legislation changing the definition to reflect the Ontario Appeal Court’s view, but would first refer a set of questions to the Supreme Court of Canada seeking its approval to do so.

“Without an electoral mandate,” Cere concludes, “without the benefit of serious social-scientific research, without adequate deliberations, without the normal process of judicial appeal, the Chrétien government repudiated the historic definition of marriage and threw its weight behind the project to redesign the most basic of social institutions.”

What Justice Gerald La Forest of the Supreme Court of Canada said in 1995 in Egan vs Canada – that marriage is “firmly anchored in the biological and social realities” and that men and women “have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship” – was already being attacked by those who wanted to empty marriage of its core conjugal characteristics: permanence, procreativity and child-centeredness. Conjugal marriage and bridging of sexes would be replaced by “close relationship theory.”  In short, as Cere puts it, marriage was to “…become nothing other or more than a form of intimacy between consenting adults.  It is made more pliable, open to constant renegotiation, easily contracted and dissolved.”

Cere points at other lands, including Russia during the 1920s, which sought to diminish the importance of marriage: “declining marriage rates, declining birth rates, rising divorce rates, more couples in ever more temporary forms of cohabitation, more people struggling as single parents, and the attendant consequences for children.”

Katherine Young, James McGill professor and Professor of Religious Studies at McGill University, and Paul Nathanson, Researcher of Religious Studies at McGill:

Redefining marriage to include gay couples “amounts to an unprecedented social experiment.“  The possible negative effects on children, women, men, singles, religious communities, education and society as a whole over the longer term are discussed by the authors. 

They conclude: “But no society could endure if tolerance were taken to its ultimate conclusion: the belief that ‘anything goes.’  In addition to tolerance… every society must be guided by wisdom.  And that requires citizens to be as reasonable as they are tolerant.  Canadians should think twice, therefore, before redefining marriage.”

Margaret Somerville, Samuel Gale Professor of Law and Professor, Faculty of Medicine, McGill University:

In addition to whether it is discriminatory to exclude same-sex couples from marriage, society must also ask, what are the rights of the children?  If the answer is that children have a basic right to know who their biological parents are and to be brought up by them, then society needs an institution that establishes that right as one of its basic principles.  If so, “we must say ‘no’ to changing the definition to include same-sex couples.”

“The crucial question is: should marriage be primarily a child-centered institution or an adult-centered one…opposite-sex marriage does not raise this question because, within it, adults’ claims and children’s needs are consistent.  That is not true of same-sex marriage… In short, accepting same-sex marriage necessarily means accepting that the societal institution of marriage is intended primarily for the benefit of the partners to the marriage, and only secondarily for the children born into it.”

Hon. John McKay, MP and Parliamentary Secretary to Finance Minister:

Some courts have used the Charter of Rights to “reduce the institution of marriage to a warm and fuzzy sentimental core…to the much poorer conception of contract law.”

The Martin government added another to the three questions referred by the Chrétien government to the Supreme Court of Canada, inviting it to authorize `same-sex marriage.’  The new one asked if the opposite-sex requirement for marriage for civil purposes was valid under the Charter of Rights, although the new justice minister (Irwin Cotler) indicated he’d oppose this viewpoint.  (I personally query if the court refused to answer this question, being unwilling to be the only highest court of any country, to the best of my knowledge, to so find).

The recent finding of the Supreme Court that religious officials who refuse to marry same-sex couples are protected is unlikely to stand for long.  The review of tax exemptions, education permits, broadcast licenses, etc., notes McKay, are likely to see an early end to the right of religious officials to refuse to marry same-sex couples despite the olive branch offered to them by the Supreme Court of Canada in the reference decision.

This ends my references to Divorcing Marriage but I’d strongly recommend other contributions in it as well to you.

Recent Public Opinion Sampling

It seems important to note that Canadians increasingly seem to share the concerns flagged in the book.  A Compas national poll indicated earlier this month:

• Two-thirds of Canadians across the country support the traditional definition of marriage vs 34% who support same-sex marriage.

• Among supporters of the major political parties the “strong” and “somewhat” support for opposite-sex only marriage was aggregated:

• -Liberals                     60%
• -Conservatives          83%
• -NDP                          46%
• -Bloc Québécois       48%

• In Edmonton – Mill Woods - Beaumont, for example, over 2550 residents have contacted my offices in recent weeks to express their views: approximately 81% of them support the traditional definition of marriage.

• In another opinion poll, an SES survey, almost 42% of voters nationally indicated earlier this month that, on this issue, they would bounce their MP from office if he/she did not reflect constituents’ views.

RELIGIOUS CONCERNS

In virtually every one of the many nations on all continents I've visited, especially since the Cold War ended in 1989, I've been struck by the sincerity, good works and confidence of local faith communities.

The collapse of ideological competitors and the “crisis of the soul,” to use the term of Aleksander Yakovlev (the former advisor to Mikhail Gorbachev and onetime Russian ambassador to Canada), has opened a lot of doors and minds to spiritual matters in recent decades.

A few weeks ago, I was attempting to finish How Now Shall We Live? by Charles Colson, JD, and Nancy Pearcey. While I do not agree with everything in it, it is a book that I’d enthusiastically recommend to all of you.

One section looks at some important legal issues in our neighbour from a faith perspective. You can decide to what extent the analysis now applies to Canada as well.

Respectful Dissent

During 1963, in Selma, Alabama, following the US Supreme Court's decision to integrate schools, Martin Luther King Jr. disobeyed a restraining order issued by a federal judge barring him from demonstrating with others and was arrested. His subsequent famous letter from jail declared that “…a just law is a man-made code that squares with the moral law or the law of God.”

Similarly, in the campaign a century earlier to end slavery, authors Colson and Pearcey comment; “(Lincoln) wrote passionately about ‘the duty of nations as well as of people to own their dependency upon the overruling power of God.’ Only a deep conviction in our obligation to submit to a higher authority could have steeled this humble country lawyer to oppose slavery when it was a legally established institution.”

Law above Laws

The concept of transcendent law goes back centuries to the ancient Greeks and Romans. The law (Torah), for example, was considered as divine revelation in Jewish culture. (Muslims, Hindus, Buddhists and many other faiths appear to share a similar perspective).

Following 380 AD, the law in the remaining few years of the Roman Empire developed largely under Christian principles. Aquinas and Augustine, among others, argued that human law must reflect the order created by God since it is the “law written on the heart." This assumption, note Colson and Pearcey, was expressed in the Magna Carta of 1215 and was also the foundation of the English common law.

During the period in which the notion of the divine right of kings was prevalent, a Scottish clergyman, Samuel Rutherford, wrote a book in the 1600’s, which asserted that the law stands above the king and he is subject to it like all other citizens. The founders of America were influenced by Rutherford through the works of John Locke and others and ensured, they thought, that laws rather than individual persons would rule Americans.

The American government was, concluded Colson and Pearcey, also to be limited by the constitutional scope of its authority over the population. In Catholic thought, for example, this concept developed through the notion of “subsidiarity,” which held that the state and its institutions existed to help subordinate ones, like the family, with the implication that if it went beyond assisting them it was acting illegitimately. “Sphere sovereignty” in Protestant doctrine meant that all spheres in society; the state itself, schools, families etc., stood directly under God's authority and meant among other things that the power of each was limited by the authority of the others.  Other faith communities had their own approaches.

This balanced model, termed “ordered liberty” by the American Founders, was intended to avoid falling into despotism.  The concept of a separation of powers among the legislative, judicial and executive branches and a federal system of government were also adopted in the US constitution to a similar end.

“Judicial Imperialism”

The long held conviction that human law must reflect a higher law was challenged seriously only at the end of the 19th century by the pragmatist school, led by a group which included William James and Oliver Wendell Holmes. According to the authors, James defined truth as “the cash value of an idea.” Holmes advised an audience of law students in 1897 to jettison notions of ethics and to look at law as the source of state coercion.  Summarily put by Holmes, say Colson and Pearcey, law is the “majority vote of that nation that can lick all others.” In short, law is nothing more than sheer force.

The chapter then speaks at some length of what the authors think the pragmatists have since done to the development of the law in the US, which I will not get into. Let me, however, end with their comments on the decision of the 1997 US Supreme Court in Boerne v Flores:

“(Boerne was) the first challenge to the Religious Freedom Restoration Act (RFRA) of 1993.  The purpose of RFRA was to re-establish a strict standard for protecting free religious exercise, which had been struck down by the Court three years earlier. Significantly, RFRA was passed unanimously in the House, had only three dissenting votes in the Senate, and was enthusiastically signed by President Clinton.  If ever a piece of legislation reflected the will of the people, it was the RFRA.  Nevertheless, in Boerne the Supreme Court declared RFRA unconstitutional on the grounds that the express authority to enforce the basic civil rights guaranteed by the Fourteenth Amendment is not “substantive” but merely ‘remedial.’  Not only was the free exercise clause emasculated, but also a vote reflecting the nearly unanimous will of the American people was overruled.”

The cumulative result of such decisions, contend Colson and Pearcey, is that the American high courts, especially the Supreme Court, are unrestrained by higher law and disdainful of majority will. They are also the dominant force in American politics.

What of our country? A paper I prepared, entitled, “Whither Judicial Restraint?” can be accessed on my website (www.david-kilgour.com) and I’d genuinely welcome any of your comments on it.

In mentioning these matters, my purpose has been to stress that decisions in the courts, parliaments and governments on both sides of the border are anything but “values-free.” The real question for many of us is what values are to be applied and I think most Canadians would prefer that the often common precepts of our numerous faith communities were much more evident in all corners of our public square, including our highest courts.

Believers in Canada Today

Across Canada today, it would appear that more than eight out of ten of us believe in God.  Several years ago, Ron Graham concluded in his book, God's Dominion, that “for all the talk of Canada as a secular and materialistic country, there seems to be more and more attention to spiritual issues.”

Still, how many Canadians know, for example, that there are quotations from the Bible carved on three sides of the Peace Tower on Parliament Hill? If we were rebuilding it today, I trust that important thoughts from many other faiths would also be present.

Believers of disparate faith traditions have built many of the institutions across this country; from universities to soup kitchens. Their generous donations to the victims of the Tsunami disasters are only the latest example of the good citizenship and caring values of all our religious communities.

There are, of course, differences among the various faith communities across Canada concerning same-sex marriage.  Overall, however, it would understandably appear that it is among believers of numerous religions that the concern is the most strongly held.

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