BACKGROUND

MARRIAGE

Let the people decide

Same-sex marriage--a question of fundamental values
Two important facts
How the law works
The government's Bill won't change the situation
What a referendum would achieve
A fundamental constitutional change
Parliament has abdicated its responsibility
Should minority rights be 'dictated' by the majority?

Same-sex marriage--a question of fundamental values

Government licensing of homosexual marriage is either:

(a) overdue recognition that people of certain sexual minorities have a legal right to be treated like everyone else, or...

(b) a faddish, irresponsible change to a natural human institution that could inflict immense harm on children and Canadian society.

While the Citizens Centre for Freedom and Democracy understands how important this question is, we do not take either side.

Rather, as advocates for "responsible" (i.e. democratic) government, we address who should decide this issue, regardless of which way it goes.

Obviously, the gay marriage controversy raises the question, which values do we as Canadians hold most dear? "Tolerance?" "Family values?"

But like other free peoples around the world, the value we should respect first on a matter so important to our nation is the principle of "government by consent of the governed."

Not government by judicial agenda. Not government by media manipulation, special-interest tactics, and political stealth.

 Fundamental changes in public policy must be willingly embraced by the public -- and for the reasons given below, the only way of knowing whether the public wants gay marriage is to have a genuine national debate, and then put the question to a referendum.

As we did with the conscription debate in 1942. As we did with the Charlottetown constitutional changes in 1992.

On disputed questions of fundamental importance, this is the Canadian way to reach a decision.

In fact, on this issue it's the only way.

Two important facts

Rightly or wrongly, gay Canadians have already been given practical equality by the courts.

Whether or not one agrees with these changes, it is striking that none of them -- marriage included -- were democratically initiated. They were established by judges.

There has been no real indication of public consent.

How the law works

The Canadian Constitution divides responsibility for marriage between two levels of government. Ottawa defines marriage, while the provinces administer and license it.

The federal Marriage Act still states that only one man and one woman may be licensed as "married."

However, since 2003 that restriction has been voided by judges in eight provinces as contrary to the equality clause (section 15) of the Charter of Rights.

Although the Charter does not mention sexual orientation, as judges now see it, there's no marital difference between two people of the same sex and two of opposite sexes.

The first result is that gay and lesbian marriages are already being registered in the eight provinces, or soon will be.

The second is that the Martin government has now said it will ask Parliament to amend the Marriage Act to say "two persons" instead of stipulating a man and a woman.

The government's Bill won't change the situation

The point to note is that gay marriage has already been instituted by judges. The Martin government's amendment Bill makes very little difference.

If the Bill passes, it will make same-sex marriage legal in all ten provinces instead of eight.

If it's defeated, same-sex marriage will remain legal in eight provinces, courtesy of the courts.

What a referendum would achieve

The only way now of properly legitimizing or defeating same-sex marriage is through a national referendum on the question.

A fundamental constitutional change

A fundamental change to the legal meaning of marriage amounts to a constitutional change of great magnitude and importance. Nobody can honestly deny this.

As the Supreme Court acknowledged in December, it affects both levels of government, private and public organizations across Canada, and individual Canadians.

So who should decide the answer?

There are three possible authorities: the courts, Parliament, or the people.

Parliament has abdicated its responsibility

The Canadian system of government vests in elected legislators, not judges, ultimate authority for interpreting the meaning of the Charter of Rights.

Legislators may formally amend the Charter itself, and governments may opt out of any Charter ruling by judges which expands the meaning and scope of personal rights.

This was done deliberately to protect our collective right to pass laws we believe to be necessary and fair, while paying due heed to judicial opinions about individual and minority rights.

In the United States, the judges are supreme, but not in Canada.

As Jean Chretien explained in defending the Canadian Charter, sometimes the judges get it wrong. In important cases, the people must remain free to overrule them through their elected representatives.

In recent years, however, elected leaders like Prime Minister Paul Martin have started saying that it is somehow illegitimate to opt out of any expansion of Charter rights by judges.

This is plainly not true. The Charter, passed in 1982, was designed to leave elected people in charge of these questions.

When Martin now says that legislators should NEVER overrule judges on Charter rights, he has abdicated the democratic responsibility he is sworn to uphold.

As a sop, Martin has said there will be a "free vote" on gay marriage in Parliament when he introduces his Bill to amend the Marriage Act.

What nonsense!

First, the vote will not be "free," because he is imposing cabinet discipline on up to 70 members of his own caucus, almost one-quarter of the House. His behavior was recently described by veteran Liberal MP David Kilgour as "bludgeoning" obedience.

Second (as mentioned above), even if the Martin Bill is defeated, gay marriage will continue to exist in eight provinces courtesy of the courts.

The only legitimate authority which has never been heard from in this controversy is the third and final one -- the Canadian people. If they support gay marriage, and they very well may, then it is politically legitimate. And if they don't, Parliament has a constitutional duty to exercise Section 33 and opt out of the eight court rulings.

Should minority rights be 'dictated' by the majority?

Of all arguments against a referendum (or even a vote in Parliament) this is the most common.

It is also the most ridiculous.

Minority rights have always been decided by democratic majorities.

Women's right to vote was bestowed by governments (provincial and federal) elected solely by male voters.

They didn't have to enfranchise women. They chose to.

Similarly, human rights laws in the 1960s were enacted by majority governments at both levels.

The Charter of Rights was passed by democratic majority governments in Ottawa and all provinces but Quebec.

Politically speaking, minority rights have always been a two-way street, and so they must remain. The majority owes it to the minority to hear its case. It may agree and it may not. The minority owes it to the majority to ask for the concession, not find some way to impose it.

All over the free world, referendums are used to decide constitutional questions, and sometimes they are the only method that is effective.

There is a Referendum Act on the federal statute books which enables the Martin government to put this question to a national vote.

Unless and until same-sex marriage receives the free consent of the Canadian people, it will be resented forever as a foreign institution imposed by dictatorial judges abetted by sneaky and evasive politicians.

The principle of "government by consent of the governed" is essential to all nations and peoples that would be free and democratic.

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