In kicking off the debate on the government’s civil marriage act, Prime Minister Paul Martin declared: “I stand before members here today and before the people of our country to say that I believe in and I will fight for the Charter of Rights.” That’s typical of Martin. Instead of advancing any reasonable explanation for his newfound determination to enact same-sex “marriage” into law, he wrapped himself in the Charter.
No one should be taken in by such sophistry. Abolition of the centuries-long legal definition of marriage as the voluntary union for life of one man and one woman has nothing to do with the Charter. It has everything to do with the betrayal of politicians like Martin, in allowing robed dictators in the courts to usurp the law-making powers of elected representatives of the people in Parliament and the provincial legislatures.
Consider the determination of the courts to browbeat Parliament into enacting same-sex marriage into law. As Martin noted in his speech, the British Columbia Court of Appeal got the process underway by stating: “Marriage is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships … falls short of true equality.”
In issuing this decree, the court purported to uphold the equality rights of homosexuals in Section 15 of the Charter. Yet, there is no actual mention of equality rights for homosexuals in Section 15 or any other provision of the Charter.
Likewise, there is no indication in the history of the enactment of the Charter to suggest that preferential treatment for homosexuals is implicit in the general guarantee of equality rights in Section 15. Quite to the contrary, when Svend Robinson moved an amendment to include specific reference to homosexuals in Section 15, his proposal was rejected on a vote of 22-2.
None of these considerations matters to Martin. He contends: “The charter is a living document.” Activist judges take the same viewpoint. They argue that the entire Constitution is “a living tree,” subject to radical pruning by the Supreme Court of Canada into whatever shape the court might fancy.
However congenial this doctrine of constitutional interpretation might be to most law professors and activist judges, it is false. It contradicts the separation of legislative and judicial powers that is essential to democracy and the rule of law.
In a genuine democracy, judges uphold the law and the Constitution as originally enacted and understood. This is not to suggest that adjudication, properly undertaken, is always a simple and mechanical process. To the contrary, judges are sometimes obligated to make marginal adjustments in existing legal rules to accommodate new and unforeseen circumstances.
In presuming to overturn the centuries-old legal definition of marriage to include same-sex couples, the Ontario Court of Appeal imposed not just a minor, but a major and radical, change in the law, with unforeseeable consequences. And in doing so, the court not only violated the rule of law, but also usurped the legislative authority of duly elected representatives of the people to enact the law and amend the Constitution.
Four years ago, Martin stood up in the Commons with the majority of his fellow Liberal MPs and voted to support the traditional definition of marriage. He now says: “My misgivings about extending the right of civil marriage to same-sex couples were a function of my faith and my perspective on the world around us.”
Why, then, has Martin decided to betray his faith and change his perspective on same-sex “marriage”? He explains: “Much has changed since that day. We have heard from courts across the country, including the Supreme Court.” In Martin’s judgement, the Supreme Court of Canada has clearly indicated that in its opinion, gays and lesbians have an equality right to same-sex “marriage.”
It matters not to Martin that most Canadians uphold the traditional definition of marriage. As he sees it, the gods in the courts have spoken and Parliament must obey.
Not so long ago, our national legislature exercised supreme authority within its sphere of jurisdiction under the Constitution. Today, thanks to the servility of unprincipled politicians like Martin, the Parliament of Canada has been reduced to the lowly status of a handmaiden for the courts.