Justices questioning why feds put question before top court
On Oct. 6, the Supreme Court of Canada began what may be the most important case before the top court since the Morgentaler and Borowski cases in the late 1980s, in terms of this country’s social fabric.
The court held three days of hearings on the federal government’s reference question, in which the federal attorney-general asked the court to offer an opinion on draft legislation, originally sent to it by former prime minister Jean Chretien last year. The most significant questions the Liberal government has asked the court to answer is whether it is unconstitutional not to allow same-sex “marriage” and whether it would violate the Charter rights of homosexuals to exempt churches from committing such “marriages.”
The hearing began with a statement by government lawyers, who told the justices that allowing homosexuals to “marry” would be the only just decision. Some Ottawa politicians are upset with the attorney-general for even bringing the question before the court. In September, Conservative Senator Ann Cools told The Interim that it is the job of the attorney-general to uphold Canadian law, and not to get permission to tinker with it or use it for radical social engineering.
The court denied an Oct. 4 request by Cools and Liberal MP Roger Gallaway (Sarnia-Lambton) to have an amicus curiae appointed to defend the traditional definition of marriage. Cools and Gallaway asked for a “friend of the court” to be appointed, saying that Justice Minister Irwin Cotler “has a personal opinion and an agenda to allow same-sex marriage, which are contrary to the law currently in place.” The Cools-Gallaway memorandum said Cotler, as the A-G, has a duty to uphold the law “as it is, not as he personally wants it to be.” The senator and MP said, “The first duty of the attorney-general and minister of justice is to support the law as passed by Parliament, which is in place.”
Justice Louise LeBel questioned government lawyers about why the attorney-general had not appealed the lower court decisions in favour of same-sex “marriage.” Government lawyer Peter Hogg said they were not appealed because then attorney-general Martin Cauchon agreed with the decisions.
In an unexpected twist, several justices asked the government lawyers if Ottawa was using the court to do its politically sensitive “dirty work.” Justice Michel Bastarache told the government’s lawyers the government’s request “seems to be a description of a political role for the decision of the court. The legal role is not there.” And, according to the Reuters news agency, Justice Ian Binnie “said it would not seem to serve any useful purpose to decide whether the Constitution requires gay marriage to be allowed, in light of the government’s proposed legislation to do just that.”
Considering that the Supreme Court has often usurped the role of Parliament in creating law, and taking the lead on social issues with its judicial activism, it was surprising to see two justices question the invitation to do so. However, one lawyer who supports the traditional definition of marriage told The Interim that too much could be read into the questions that seemed skeptical of the need for the court to act on this, instead of Parliament. “They may have been merely asking the government to justify its actions or to give themselves a mandate to act, to avoid the appearance of judicial activism.” The lawyer also noted that Justice Binnie later had tough questions for opponents of same-sex “marriage.”
Justice Binnie reacted negatively to an assertion by David Brown, a lawyer representing Focus on the Family, that traditional marriage was the best way to bring children into this world and to raise them as healthy members of society. “To reduce the whole thing to procreation,” Justice Binnie said, “seems to be an oversimplification.” Chief Justice Beverley McLachlin questioned Brown’s assertion that the court consider not just same-sex “marriage,” but what other changes redefinition now may lead to later. Brown said, “It’s not good enough to say this is the case before us and we don’t have to wonder what’s down the road.” Brown was attempting to force the justices to consider what marriage truly is, beyond just an equality issue for homosexuals, but Justice McLachlin said the court need not “foresee all future circumstances” before making its ruling.
William Sammon, a lawyer representing the Canadian Conference of Catholic Bishops, said that the court must consider the state’s interest in regulating marriage and that the state’s interest is about the “collective good, not about an individual’s rights.”
New Justice Rosalie Abella questioned Peter Jervis, a lawyer for the Interfaith Coalition, over his contention that redefining marriage to include homosexual partners violates the Charter’s guarantee of religious freedom and could lead to the violation of conscience rights of those who perform weddings. Jervis said that there is no protection in the proposed legislation for “a religious official who performs civil marriages.” Jervis noted there was no protection for the conscience rights of “an Islamic judge, a conservative Jewish judge, (or) a Catholic judge who did not want to perform a ceremony because of their religious beliefs.”
The Alberta government argued in favour of the traditional definition of marriage and said that Ottawa cannot change the definition of marriage by legislation. Robert Leurer, representing the attorney-general of that Western province, argued that the definition of marriage was defined in common law before Confederation and therefore, nothing short of a constitutional amendment could alter it. “The proposed legislation seeks to do what Parliament cannot do: expand its jurisdiction by simple legislation.” But Justice Abella lectured Leurer: “You don’t look at 1867 as the end of the story.” Leurer countered that the courts should not “obliterate in one fell swoop the wisdom accumulated since time immemorial.” (Lawyers representing EGALE – Equality for Gays and Lesbians Everywhere – claim that the “term marriage as it appears in the BNA Act (British North America Act) is just an empty container” and that “marriage has a certain elasticity to it.”)
Alberta Premier Ralph Klein has repeatedly vowed to do everything in his power to prevent same-sex “marriage” becoming a reality in his province.
Lawyers for the province of Quebec argued that the federal government’s proposals infringe upon that province’s jurisdiction. The province appears to have concerns about the proposal to exempt churches from performing “marriages” for homosexuals, if they choose to do so because marriage ceremonies and licensing do not fall under federal jurisdiction. In a brief filed with the court, lawyer Alain Gingras, representing the provincial government of Quebec, said, “Provinces have exclusive competence to determine the conditions surrounding the celebration and solemnization of marriage and the capacity of officials celebrating it, both in civil and religious terms.” Although the province was the only intervenor to oppose the government’s reference case, it did not oppose the redefinition of marriage.
The court is expected to offer its non-binding opinion in December or early 2005. Political observers are divided over whether Prime Minister Paul Martin will bring the contentious issue before Parliament with his precarious minority government.
One Liberal strategist told The Interim that Martin expects more Liberal MPs will “fall into line” if the opinion is in favour of the government’s proposed changes, as they will be able to use the excuse that they are “only abiding by the court’s direction on the issue.” He also said that the PMO is willing to use the issue to “tar the Conservatives as opponents of the Charter if they vote against the direction that the court has given Parliament.”
Meanwhile, grassroots pro-family organizations are urging Canadians to let their MPs know that they oppose the redefinition of marriage. They note that with an election possibly just around the corner, members of Parliament might be more sensitive than is typical to the opinions of thousands of constituents than to the opinion of nine Supreme Court justices.
