Mr. Speaker, we certainly had a tumultuous summer on this subject. I do not know whether my constituents are more irritated by the decision itself or the fact of the irrelevancy of Parliament to this debate.
Parliament has spoken at least three times on this subject in the last few years: once in a free vote in 1999 in an overwhelming vote of 216 to 55 in favour of the traditional definition; in 2000 on Bill C-23 and again on a harmonization bill and both of those were whipped votes.
The courts have felt perfectly free to ignore everything that Parliament has said to date. I dare say that pretty well everything that is said today will be ignored as well.
Parliament is irrelevant to this debate because it allows itself to be irrelevant. Power abhors a vacuum. Parliament gave the charter to the people of Canada yet the judges have not at all been shy about using that power to the maximum.
This is not a dialogue between Parliament and the judiciary. This has become a monologue in which Parliament is afraid to speak with any authority.
I sit on the justice committee. We spent six months travelling the country going to 13 separate communities. Well over 200 briefs were directly submitted to us. There were over 450 written submissions. Regardless of the views, I thought it was an excellent exercise in democracy. Everyone got their say and just possibly there may have been some meaningful exchanges among the participants. When the people are given an opportunity to speak they usually have some wisdom to share.
Not only were the members of the justice committee ignored, so also were the hundreds and thousands of people who made an effort to participate in the process. In one fell swoop the Court of Appeal of Ontario trashed the efforts of the committee and devalued all those who chose to participate, making any report that we would like to make utterly and completely irrelevant.
Those who think the decision of the Court of Appeal is a good decision should think carefully about any future participation of Canadians in the democratic process. Why would anyone really bother? Why would they let themselves be humiliated? Indeed, why bother to vote?
There will be those who argue that this is in fact a free vote. For an observer from Mars, that might appear to be a free vote, but let not the rest of us be so naive. The government has chosen not to appeal this decision and ask for a stay in that decision and is therefore creating facts on the ground.
In early June the government's official position was to support the traditional definition of marriage. By the end of the month the government had turned 180 degrees in the opposite direction and proposed a reference to the Supreme Court of Canada to which any first year law student already knows the answer, and drafted a bill which allows for no other alternatives whatsoever. In addition, the Prime Minister has signalled to members of the cabinet and therefore his parliamentary secretaries that they will not be free to vote as they see fit. The Minister of Justice has been travelling the country to argue with the provinces to just treat the bill as if it had already passed.
The contempt for Parliament and by extension its MPs as representatives of the people is breathtaking. We will collectively bear witness to MPs and cabinet ministers swallowing themselves whole in this so-called free vote.
For those who generally accept the deconstruction of the institution of marriage in the name of equality, I say good for you. Vote as you see fit. I profoundly disagree with you.
Having now commented on the process by which we get here, I would like to talk about the issue itself. Professor Daniel Cere of McGill University has analogized heterosexual marriage to a web with a variety of strands which underpin the very existence of our society and our nation. Among the variety of strands are sociological, anthropological, legal, theological and generational.
The courts in their deconstruction have said that all these strands are non-essential to the core meaning of marriage. Marriage according to the Court of Appeals is merely a love institution, two persons with a pulse having sex.
The conventional relationship between opposite gender people reaching generationally backwards and forwards is an incident of a marriage, not its core element. The Court of Appeal has literally bombed the intergenerational bridge both front and back.
Heterosexuals reach back to previous generations and forward to future generations. The Court of Appeal has said in effect “So what? It's not a core feature of marriage”. Inherent capacity of heterosexual couples to procreate is nice but it is not a necessity.
The court has said that the way in which heterosexuals reach out to a larger society and say in effect “we will perpetuate you” is a novelty, but it is not a core element. And forget all that religious nonsense. It is just a collection of myths anyway. We are a secular society and we have no space in our one size fits all pluralism to buy into anyone's ancient myths. It is really a conceit to equate equality with sameness.
Pluralism should respect diversity. People come in all shapes, sizes and orientations. They are not the same, but this crude deference to equality has convinced us that the same is equal and equal is the same. This is intellectual nonsense. A just society treats its citizens with equality before the law. It does not jam each and every citizen and each and every relationship into identical boxes.
The courts have bought this crude idea because Parliament is AWOL on this issue. We have deferred to the legal equality claims in deference to all else. We have bought the notion that if it is not exactly the same, then it is not equal. In the marriage debate that works itself out to say that homosexual relationships must be equal to heterosexual relationships, therefore, marriage must be reshaped and redefined to accommodate the equality claims so that they are the same thing. This is nonsense in life, but apparently not nonsense in law.
Mr. Justice Charles Gonthier is quoted as saying, “To permit the courts to wade into this debate risks seeing Section 15 (equality) protection against discrimination based upon sexual orientation being employed aggressively to trump Section 2(a), protection of the freedom of religion and conscience”.
Apparently nothing short of marriage is good enough. We get into this foolishness about separate but equal. All of those in the 1960s school busing debates start playing tapes in their heads. Heterosexual couples are different from homosexual couples for one very obvious reason: gender. They are equal for the purposes of law, but they are not the same. Same is not equal and equal is not the same. The issue is to achieve legal equality, not sameness. A principled view of pluralism would respect not only the need for the freedom of the individual but also the cooperation that is required to create conditions of common good.
Our charter is an important statement of rights and freedoms, but it is silent on the conditions necessary to create common good. When we let the lawyers run away with the debate and give undue deference to judicial pronouncements, we erode the conditions for the common good. It is rights without responsibilities.
By dumbing down marriage to two persons with a pulse having sex, we have destroyed the conventional and replaced it with the contractual. The law of contract serves us very well in the exchange of goods and services but is supremely inadequate to express the complexity of opposite gender relationships. Marriage is or has become a contract, nothing more, nothing less. All those strands to which Professor Cere referred, which feed that web, are charming but not necessary, are mere mythologies.
At the justice committee, we were repeatedly cautioned not to mess with marriage. The example frequently quoted was the change to the Divorce Act, which created no fault divorce. It was argued that this was a tiny change affecting an insignificant number of people and would alleviate genuine hardships. Who today can say that their family has not been affected by no fault divorce? It has affected every marriage in the nation and continues to be a national tragedy. We have achieved the distinction of being one of the most divorcing nations in the world.
Today we are invited to make a minor change to the definition of marriage, which will affect a small number of people and alleviate an injustice. Do not be naive: this will affect how everyone regards marriage and will have consequences for the heterosexual community far beyond those apparently minor inconsequential changes.
Caution is the operative word. There are alternatives available and I would, if I may, urge everyone to support the motion.