In an Oct. 2 ruling, the British Columbia Supreme Court upheld marriage as the union between a man and a woman, thus barring homosexual unions from the institution.
Justice Ian Pitfield stated in his decision that the common law definition of marriage, which is the union between a man and a woman only, cannot be extended to include same-sex relationships.
Janet Epp Buckingham, general legal counsel for the Evangelical Fellowship of Canada – which along with Archdiocese of Vancouver, Council of Sikhs, the B.C. Muslim Association, Islamic Society of North America, Ontario Conference of Catholic Bishops, Ontario Council of Sikhs, and the Catholic Civil Rights League made up the Interfaith Coalition, a pro-family group that intervened in the case – explained “Justice Pitfield took a three-fold approach to the case.”
He first found that it would not be appropriate for him to judicially redefine marriage. Secondly, he ruled that the constitution upholds the definition of marriage as between one man and one woman. Finally, addressing the Charter challenge pursued by eight homosexual partners and the homosexualist activist group EGALE, he determined that it does not stand up since it would pit one part of the constitution against another.
Justice Pitfield’s decision in EGALE Canada Inc. et al v. The Attorney General of Canada et al makes clear that neither the judiciary nor Parliament can change the fact that marriage is between a man and a woman.
Explaining the constitutional jurisdiction of Parliament, the provinces and the impact upon the Charter, Justice Pitfield said a constitutional amendment is the only legal way to change the definition of marriage because the constitution defines marriage as between a man and a woman, that any attempt “to enact legislation in respect of civil rights” would infringe the “legislative authority of the province,” and that the definition and rights of marriage are not subject “to Charter scrutiny.”
Furthermore, Justice Pitfield noted that even “if the legal relationship of ‘marriage’ is subject to Charter scrutiny, its legal character does not infringe the petitioners’ fundamental freedoms of expression or association, their mobility rights or their rights of liberty and security of the person, but does infringe their equality rights.”
But more than making just a technical legal decision, Justice Pitfield recognized the importance of the traditional definition of marriage as between a man and a woman. He said, “I concur in the submission of the attorney-general of Canada that the core distinction between same-sex and opposite-sex relationships is so material in the Canadian context that no means exist by which to equate same-sex relationships to marriage while at the same time preserving the fundamental importance of marriage to the community.”
Phil Horgan, vice-president of the Catholic Civil Rights League and a Toronto lawyer, said Justice Pitfield’s decision “is a clear affirmation of the fundamental cultural importance of the institution of marriage. Despite the current cultural aversion to marriage, it remains the cornerstone of the family, and civilization as we know it.”
Justice Pitfield said, “The importance of the essential character of marriage to Canadian society is a matter of common sense, understanding and observation.
“There is nothing that should compel the equation of a same-sex relationship to an opposite-sex relationship when the biological reality is that (the) two relationships can never be the same. That essential distinction will remain no matter how close the similarities are by virtue of social acceptance and action … No means exist to equate same-sex relationships to marriage, while preserving the fundamental importance of marriage to the community.”
Justice Pitfield also said, “Marriage was defined by common, or judge-made, law. Judges should only change the common law in incremental steps. A change to define marriage as the legal union of two individuals, regardless of sex, is not incremental.” He said that if a constitutional change were to be made ,it should be done only after a full and open public debate.
Justice Pitfield’s decision is a notable break with the recent trend to legislate from the bench, in the judicial activism so prevalent with many of today’s judges.