Same-sex Marriage Legislation

There could be, and there definitely should be a reasonable, balanced, well-informed public discussion about the pros and cons of the Liberal government’s proposed Civil Marriage Act. But unfortunately much of the opposition to the controversial same-sex marriage legislation seems rooted in old-fashioned homophobia; and I, for one, am turned off by it. 

The Act, now before Parliament and expected to be debated and voted on this spring, is the government’s attempt to ensure same-sex couples who want to marry are treated equally under the law, in keeping with guarantees in the Canadian Charter of Rights and Freedoms. Courts in a number of Canadian provinces have ruled existing marriage laws deny gays and lesbians their Constitutional right to equal treatment.

The Charter also guarantees freedom of conscience and religion. And the federal Justice department says nothing in the Civil Marriages Act diminishes that freedom or prevents any religious group from refusing to perform marriages that are not in accordance with their religious beliefs.

So, on the one hand the Charter says everyone has the right to be treated equally before the law, but on the other the government will let the churches discriminate against gays and lesbians if they so choose because the Charter says they can. That sounds like fodder for a lot more lawyers to chew on right there.

The government obtained a legal opinion late last year from the Supreme Court of Canada. At one point the court said, in so many words, the protection of religious freedom under the Charter was strong enough to block “the state” from forcing any religion to perform same sex marriages. Besides, the proposed legislation dealt only with “civil marriages,” the court also noted.

That’s cold comfort to social conservatives who fear the federal government’s redefinition of marriage threatens foundations upon which they say our culture and civilization are built – traditional family values. For once I’d like to hear a good explanation of what that means. Does it mean going back to the days when wives were chattel, when domestic abuse was swept under the carpet, when young unwed mothers were sent away to custodial prison-homes to have their babies in shame and disgrace, when single-parent families suffered terrible poverty because wages for working women were so low, there was no such thing as day care, and many women were thus forced to stay in abusive relationships? I could go on and on. Just how far back would social conservatives like to turn back the clock?

Clearly, there are a lot of things about the same sex marriage issue that are worthy of public discussion and personal reflection by all of us. And certainly, one would expect that to apply to Members of Parliament now charged with the responsibility of giving due thought and consideration to the proposed law, before voting for or against it this spring. Conservative Bruce-Grey-Owen Sound MP Larry Miller already has his mind made up. That’s not surprising considering he’s a member of a party that took a strong, public stand against same-sex marriage before holding its first policy convention. Apparently the powerful social conservative forces in the party didn’t feel the need to discuss the issue with their more progressive colleagues. I don’t doubt our well-meaning local MP has given the matter a lot of thought, but it’s discouraging to see how much weight he has given 12,000 emails he’s received, more than 99 percent opposed to same-sex marriage, he said. “Those voices are loud and clear. Traditional marriage must be protected!” Miller trumpeted early this week.

Obviously he has to pay attention to the views of his constituents. But even if the majority of people in the riding are opposed to same sex marriage that doesn’t necessarily make them right. History shows us time and time again the majority is often terribly wrong. We don’t elect people to represent us in Parliament to simply parrot our views. Some of us trust they will think things over carefully and use their best judgement as well. We also expect them to represent all their constituents, not just the majority. Democracy based simply on doing the will of the majority is a form of dictatorship. That’s the problem with referendums. Protection of minority rights is also a fundamental democratic principle. Without it all sorts of state-sponsored injustices are possible.

Prime Minister Paul Martin has made protection of minority rights the focus of his government’s support for its same sex marriage legislation. His point is well taken. Canadian society has come a long way in its understanding and acceptance of homosexuality. There should no longer be any question that gays and lesbians deserve minority-right protection under Canadian law.

In fairness to Miller, he appears to agree with that, while not approving of same-sex marriage.

He noted some people are “totally anti-gay.” That attitude was doubtless reflected in many of the e-mails he received. But, like it or not, “we can’t do that,” he said, noting gays and lesbians have gained certain rights to equal treatment under the law in the courts.

In the course of my own reflections on the issue I initially find myself leaning toward a view that is similar to Miller’s: tolerance on the one hand, but a concern about keeping the traditional definition of marriage. For thousands of years the marriage of one man and one woman has been a large part of who and what we are as a culture. The idea of defining marriage to be something else strikes me as absurd.

So, for a moment I was interested in what Roman Catholic Bishop Fred Henry of Calgary said recently about there being “historical, cultural, philosophical, moral and anthropological roots” to the same-sex marriage issue that ought to be considered. He was responding, in an article published on the http://www.defendmarriage.ca Website, to the Supreme Court’s view that the Constitution is like a “living tree which, by way of expansive interpretation, accommodates and addresses the realities of modern life.”

But the Bishop lost me when his argument lapsed into old-fashioned homophobia. He went so far as to compare homosexuality to two of the worst evils in modern society, and to suggest it should be outlawed again: “Since homosexuality, adultery, prostitution and pornography undermine the foundations of the family, the basis of society, then the state must use its coercive power to proscribe or curtail them in the interests of the common good.”

An article by Joe Woodward Source on the same website downplayed the democratic legitimacy of the same-sex marriage movement, on the basis that just one percent of Canadians identified themselves as homosexual (in StatsCan’s 2003 Canadian Community Health Survey) and far fewer actually live together as same-sex couples. As if minorities have to be a certain size.

“So outside a few hundred people in each of a dozen cities, homosexual couples hardy exist,” Source said, in the article first published in the Calgary Herald. “To qualify as a protected category in human rights claims, gay activists have drawn on two thousand years of sometimes bloody persecution, which largely ended 200 years ago,” he added.

Excuse me, but I recall not that long, on the 60th anniversary of the liberation of Auschwitz, mention being made of some 5,000 homosexuals who were among those murdered in Nazi death camps because they were deemed socially unacceptable, inferior human beings. I am also reminded of a young man who was tied to a rural fence and beaten to death a few years ago in Wyoming because he was gay.

But, setting aside that glaring inaccuracy, Source made some interesting points about the social value of the traditional family as the best environment for raising children. I’m inclined to agree, assuming we’re talking about a loving family environment with sufficient societal supports to help keep it that way.

I also think the stresses and strains of modern life – young families working too long and too hard to make ends meet – is a far greater threat to traditional marriage than the recognition of same-sex “marriage” in whatever form it takes, and whatever word is used to describe it.

Originally published in The Sun Times in February 2005.

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