Rule #2: Losers Pay

In almost every case cited last month, the money that allowed lawyers and judges to re-write Canada’s social rubric, divine the intent of the original authors and thumb their noses at social conservatives, came from, you guessed it, the Canadian taxpayer. Of course the official line is that the money came from our civil government – but everybody knows that government doesn’t have money of its own.

To be fair, since Pierre Trudeau’s day, successive federal governments have made obligatory appearances in court to oppose the homosexual cases. But in reality, federal dollars, your and my tax dollars, were being used to mount legal challenges against lawyers acting for the federal government. In other words, if you can believe it, the fed’s were actually paying their opponents to beat them in court. This is the other reason that Constitutional Calvinball is such a boondoggle.

One of the main funnels of tax dollars to the homosexual rights movement has been the federal Court Challenges Program. The Trudeau government started it in 1977 to fund legal challenges to Quebec’s restrictive new language laws. The Mulroney government expanded it in 1985 to include “equality” cases under the newly minted Charter of Rights, and surrendered control of it to an autonomous council. But full autonomy wasn’t achieved until Jean Chretien became prime minister, and made the CCP a completely independent Crown corporation in 1995. As a result, the CCP is now beyond the scrutiny of Parliament, or the auditor-general and, ultimately, beyond the purview of the Canadian taxpayer, whose money it uses to spearhead left-leaning social activism.

In every case, the CCP gives money to left-liberal advocacy groups so they can oppose conservative groups that have no state funding and usually lack charitable status. The CCP spends about $3 million a year, but discloses no details about where that money is spent – not even to the government. But there is more to this game. Not only does the federal government dole out our money to this activist organization, but in a brazen act of contempt of the people, the federal government, under the auspices of the federal justice ministry, had lawyers before the Supreme Court in October of 2003 opposing a motion from a group of conservative religious groups. The groups were simply asking the high court for permission to appeal the Ontario and B.C. rulings opening the door to homosexual marriage. That’s right. The federal government used the power and influence of government to stymie legitimate private organizations who were simply asking the high court to look at the notion of appealing the rulings. When Chretien announced that the government would not appeal the rulings of the lower courts, that was a great disappointment. But in sending in its lawyers to oppose those who were simply asking for an appeal, an appeal that the government should have made, and were using their own resources to appeal, was brazen contempt. And again, all done with your and my tax dollars. So keep in mind Rule #2. In a competitive game of Constitutional Calvinball, the losers always pay.

Rule #3: Win by Ignoring

So where does this leave us? Well, that is the question everybody is asking. How come Canadians were never consulted about this fundamental change? A complete redefinition of the word “marriage,” to now include a union of any “two persons” rather than a union between one man and one woman? This is where Rule #3 comes in. In Constitutional Calvinball, you win by ignoring your opponents. Of course, it’s not always easy to see when this rule is actually being applied. Ignoring someone doesn’t attract attention in the same way as reading invisible ink or making your opponents pay to play the game, but the idea of ignoring your opponents certainly does make the game intriguing. For example, whenever the question of the autocratic manner in which marriage has been redefined is raised, one of the power players inevitably responds that, “Marriage is a basic human right and human rights should never be determined by majority opinion.”

It is a good strategy to appeal to a higher morality than the democratic notion of majority rule. But has anyone noticed how ironic it is that these players have suddenly appealed to absolutes when it comes to homosexual rights? Only it’s no longer the Ten Commandments that are non-negotiable. It is whatever the United Nations, or some other secular tribunal, determines to be a “human right” that can’t be based on majority opinion.

So marriage is now a “right” and no longer an institution. That is why in 2001-2002, three homosexual legal challenges were commenced in Canada’s most liberal legal jurisdictions: B.C., Ontario and Quebec. The choice of the jurisdictions in which these challenges were launched also doesn’t appear to have been an accident. Homosexual activists, in concert with political insiders, knew that these provinces housed some of the more aggressively activist judges, who were more than eager to impose the new absolute on a misguided majority. Ergo, parliamentary procedure, nationwide consultation and long-term judicial deliberations were cast aside for the necessary human rights reform to marriage.

To be fair, some members of the political establishment did try to consult with Canadians on this issue. The House of Commons justice committee was sent around the country to hold public hearings. That feedback very quickly included more than 250,000 letters from Canadians who were overwhelmingly against the idea of recognizing or encouraging homosexual marriages. These responses were coming in while appeals courts in B.C. and Ontario were looking at the legal challenges that had been mounted. It seems that some federal politicians were concerned about the increasingly negative feedback the homosexual marriage idea was generating before the committee.

But this only serves to highlight the highhanded manner of our courts, which are supposed to be immune from political pressure, undue bias and partiality. In fact, one of the cornerstones of our democratic system is the idea that justice is “blind” – that it will be fair to all sides in a discussion without regard to wealth, status, or political connections. However, in this case, some judges appear to have been peeking through their fingers at the politicians. Everyone was quickly coming to realize that if the justice committee were to report back to Parliament before the courts ruled on these challenges, the overwhelming preponderance of public opinion would be against politicians legislating homosexual marriage into existence. Where courts, at this level, usually take six months or more to hand down a decision, especially in complex or controversial cases, the appeals courts managed to hand down their rulings in less than six weeks. The fact that the rulings were rammed through is illustrated by the fact that none of them addressed the complex issues (taxation, property rights, inheritance, genealogical relationships, adoptions, etc.) that would necessarily ensue by redefining the institution of marriage. Moreover, there was no real time for analysis, reasoning or reflection on the findings of the justice committee and thus, no evaluation of how this law would impact the citizenry of Canada.

Then there is the matter of “evidence.” Historically, when judges make decisions, they do so based on the evidence before them in a particular case. They look for precedents for their decisions. In other words, they look to see how other judges approached similar issues in past rulings. None of this played much of a part in the Ontario or B.C. appeal court rulings. In fact, based on no evidence or precedent at all (for homosexual marriage is unprecedented) the courts simply swept aside hundreds of years of legal, religious, social, anthropological and ethical precedent. The redefinition reflected nothing more than the personal political opinions of the judges involved.

To add insult to judicial injury, the Ontario judges explicitly said that their decision would have to take effect immediately. Which meant that on the very same afternoon that the Ontario appeal court ruling was issued, Toronto saw its first official homosexual marriage performed. And presto, suddenly there was a precedent that other judges could point to. This was created by a judicial ruling handed down just hours earlier.

Meanwhile, in Parliament, the justice committee was left in the dust. It couldn’t preempt what it had started. It couldn’t simply cancel the scheduled consultations or its plans to travel to a dozen cities. It couldn’t just not listen to more than 500 scheduled witnesses or ignore some 250,000 letters the issue had generated. The committee had just barely worked its way through the first draft of its report when the Ontario appeal court ruling came down on June 10, 2003. That ruling effectively quashed anything the committee might conclude after hearing all the evidence the courts had not considered. Homosexual “marriage” was now, like it or not, a reality. Homosexual weddings had already been performed. Precedent had been made. Thanks to judicial fiat, Canada was suddenly a very “cool” place to live.

Rule #4: The eleventh-hour trade

In case some members of the Parliamentary committee might call the government to task, the justice minister made a last-minute shuffle. Two committee members known to favour traditional marriage were removed and replaced with two who could be counted on to comply with the government’s agenda. The two new members had not, of course, been part of the previous weeks of public hearings. But they could be counted on to vote the party line. The irony was that even with the votes of these two reliable Liberals, the committee, which also advises the minister more broadly on federal legal issues, still almost recommended that the government appeal the Ontario appeal court ruling. The other committee members had obviously heard the message from Canadians loud and clear – leave marriage alone!

But in the end, the committee decided to ignore the voice of the majority. A tie-breaking vote from Andy Scott, the committee chair and former solicitor-general, saved the government the embarrassment of going against the advice of a parliamentary committee on the issue of an appeal. When word of that recommendation leaked out, Ottawa was flooded with phone calls, faxes, and e-mails. Canadians bombarded the communication lines to their national capital, telling their MPs (particularly those on the committee) of their displeasure with the recommendation. In fact, the pressure was so intense that, just to make sure the committee didn’t cave in to it, or cause any more trouble, Liberal house leader Don Boudria adjourned the House proceedings early for a three-month summer break. That adjournment ensured that the committee would not continue with its assigned task, that its report on what Canadians thought of this issue would never see the light of day. No better way to wreck a game of Calvinball than to call for summer vacation.

With the backbenchers and the committee out of the way, the prime minister and justice minister were free to consult (or instruct) cabinet, which obligingly concluded that same-sex marriage should become the law of the land. Cabinet rubberstamped the recommendation not to appeal the controversial Ontario decision to the Supreme Court of Canada and a month later, on July 17, Justice Minister Martin Cauchon released the government’s proposed new bill. During that press conference, Cauchon made the startling statement that same-sex “marriage” was now a “Canadian value.” And that is how Canada got homosexual “marriage.”

Let’s see. Change the rules as you play. Get the losers (taxpayers) to pay. Ignore your opponents and call it a win anyway, and make a last-minute trade to ensure a victory. Constitutional Calvinball. Quite a game.

Rev. Tristan Emmanuel is the author of Christophobia and director of the Equipping Christians for the Public Square Centre. This article is an excerpt from a forthcoming book on marriage from from Freedom Press (Canada) Inc.