Commentary by Rory Leishman
The Interim
The judgment of the Supreme Court of Canada in the “same-sex marriage” reference is a devious ploy, signaling the determination of the court that the traditional definition of marriage in Canadian law will soon be abolished. Granted, the court has plenty of willing political collaborators. In response to the outrageous judgment of the Ontario Court of Appeal on June 10, 2003, in the Halpern case, that unilaterally reformulated the legal definition of marriage to include the voluntary union for life of both same-sex and opposite-sex couples, the Chretien government did not even appeal. Instead, it promptly capitulated to the courts by introducing a draft bill declaring: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” Then, in an extraordinary expression of contempt for the legislative authority of Parliament, the Chretien cabinet went cap in hand to the Supreme Court of Canada, seeking judicial approval of the bill prior to passage. Specifically, the cabinet asked the court if the enactment of same-sex “marriage” comes within the exclusive authority of Parliament over “marriage and divorce” as conferred in section 91(26) of the Constitution of Canada Act, 1867.
Senator Anne Cools has pointed out that to a constitutional lawyer, the answer should be obvious: Parliament has no authority under s. 91(26) to enact gay “marriage,” because such a travesty is incompatible with the understanding of marriage universally held by the fathers of Confederation.
All nine judicial activists on the Supreme Court of Canada have rejected this argument. They contend the traditional notion that unelected judges in a democracy should uphold the laws and the Constitution as originally enacted and understood “runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
In support of this argument, the court cites a judicial ruling in 1905 that allocates jurisdiction over telephones to Parliament, “even though the telephone had yet to be invented in 1867.” The analogy is absurd. With this 1905 ruling, the court upheld the original understanding of the general authority of Parliament over “the Regulation of Trade and Commerce” in section 91(2) of the Constitution. In contrast, today’s court has made a mockery of the original understanding of marriage in section 91(26).
Nonetheless, Conservative party leader Stephen Harper has hailed the court’s judgment in the same-sex marriage reference as a “victory for democracy, and a victory for the Conservative party’s position that Parliament is supreme,” because the court refused to express an opinion on the constitutionality of the common-law definition of marriage as requested by the Martin government. However, as an explanation for ducking this question, the court noted that “the federal government has stated its intention to address the issue of same-sex ‘marriage’ legislatively, regardless of the court’s opinion on this question.”
Moreover, in approving the government’s draft bill on same-sex “marriage,” the court held that the purpose of this legislation, “far from violating the Charter, flows from it.” On this basis, there can be no doubt that if Parliament were to defeat the draft bill, the court would proceed on its own to read same-sex marriage into law, in the same way that it flouted the supremacy of Parliament by granting same-sex spouses the same rights as heterosexual spouses in common-law relationships.
Justices Antonin Scalia and Clarence Thomas of the United States Supreme Court are prominent exponents of original understanding as the only legitimate guide to legal interpretation. In a stinging dissent in Lawrence v. Texas last year, they denounced the U.S. court for striking down state laws prohibiting sodomy “through the invention of a brand-new ‘constitutional right’ (to consensual sodomy) by a court that is impatient of democratic change.” While acknowledging that a strong case can be made for repealing anti-sodomy laws, they insisted: “It is the premise of our system that those judgments are to be made by the people and not imposed by a governing caste that knows best.”
Prior to enactment of the Charter, virtually all Canadian judges also understood that they have a duty to uphold the laws and the Constitution as originally written and understood by elected representatives of the people. Today, our judicial masters on the Supreme Court of Canada routinely change the laws and the Constitution through “progressive interpretation.” With their ruling in the same-sex “marriage” reference, they have acted true to form: “like a governing caste that presumes to know best.”
