Madam Speaker, I rise on behalf of my constituents to address one of the most important debates ever to take place in this Parliament. The bill before us concerns the meaning of marriage, but I will argue that it is more broadly about the meaning of language, the nature of our society, the power of the state, the welfare of children and the future of the central human community: the family.
The bill seeks to change fundamentally the meaning of an institution that has existed in every civilization through all of recorded history, an institution that predates the state itself. In so doing, the government undertakes a radical social experiment, whose consequences on children, social stability, religious freedom and civil society are both unseen and unknowable. It does so against the collective wisdom of millennia of human experience, which G.K. Chesterton called the democracy of the dead. It does so against the consensus of the family of nations, against the demonstrable will of the Canadian people and against the express will of this Parliament.
The onus is, therefore, squarely on the government to justify this unprecedented and illiberal imposition of state power to undo the ancient meaning of a universal human institution. I submit that the government has demonstrably failed to discharge this onus. In fact, the Prime Minister and the Minister of Justice have offered only one argument ad nauseam to justify the redefinition of marriage, namely, that the exclusivity of marriage as it has always and everywhere been known constitutes a violation of fundamental human rights and the Charter of Rights and Freedoms, therefore, requires that gays and lesbians be admitted to marriage.
The reason for its narrow defence is obvious. The government knows that the vast majority of Canadians, two-thirds in the most recent polling, intuit that the essence of marriage is about the complementarity of the sexes. Rather than trying to persuade Canadians that their deeply held understanding of human nature does not comply with the latest political fashions of post-modern liberalism, the government seeks to play a trump card called human rights, the desired effect of which is to de-legitimize any opposition to the radical project as contrary to human dignity and Canadian values.
This strategy, in my submission, cheapens the precious currency of human rights by seeking to inflate an ordinary political demand into a requirement of fundamental justice. Let me be clear. If I were to conclude that traditional marriage constituted a violation of authentic human rights and that fundamental justice required this change in the meaning of marriage, I would be a fervent advocate of this bill regardless of the political cost.
Indeed, the core principle of my own political vocation is this: the inviolable dignity of the human person and the transcendent obligation to do justice and to promote the common good. These principles admit no exception for people's sexual orientation.
I believe I understand the complex and often painful social reality faced by many gays and lesbians in Canada. I acknowledge that too many of our fellow citizens have faced injustice and prejudice because of their sexual identity. I realize that too often people of traditional religious mores bring dishonour to themselves and their faiths by harbouring hatred rather than love toward homosexuals, forgetting that all of God's children are created in His image.
I recognize that some of us, and I include myself in this, who have sought to defend the natural family in politics have been sometimes insensitive to the real social marginalization experienced by many due to their sexual orientation. For these reasons I can sincerely appreciate the motivation of many gay and lesbian Canadians to seek the social approbation that they believe will come with access to marriage.
I understand that they regard the exclusive nature of heterosexual marriage as denying them access to an important social institution. Indeed, if marriage were simply about the state granting recognition of intimate adult relationships, I believe I could probably grant the legitimacy of the argument from rights. However, I believe that marriage has an infinitely deeper and richer meaning, a meaning hard-wired into human nature, a meaning that is in its very essence about the complementarity of the sexes and their unique power to transmit life.
In sum, the social, cultural and historical evidence leads to one conclusion: that marriage is tautologically a heterosexual institution. It therefore cannot constitute, in my view, unjust discrimination to limit the application of the word “marriage” to those relationships which it essentially describes. There is no fundamental right to nomenclature, not in Canadian jurisprudence or anywhere else in the liberal democratic world.
In this respect, permit me to quote at length an important Canadian authority on the meaning of marriage and its relation to the rights claims that constitute the government's only argument for the bill:
(There is) a universal pattern of marriage that has existed historically and across cultures. This universal pattern demonstrates that the raison d'ètre of marriage has been to complement nature with culture for the sake of the intergenerational cycle. Across world religions and throughout small-scale societies, the universal norm of marriage has been a culturally approved opposite-sex relationship intended to encourage the birth and rearing of children. While there may be a few examples of “same-sex marriages” from some societies, there has never been a same-sex marriage norm. From a cross-cultural perspective, “same-sex marriage” is without a commonly understood meaning, as it lacks the universal or defining feature of marriage according to sociological (religious), historical and anthropological evidence...
Marriage is unique in its essence, that is, its opposite-sex nature. Through this essence, marriage embodies the complimentarity of the two human sexes, playing a foundational role in Canadian society. (It is) a pre-legal concept that has existed since time immemorial. Marriage is not simply a shopping list of functional attributes but a unique opposite sex bond that is common across different times, cultures and religions as a virtually universal norm. In effect, marriage is not truly a common law concept, but one that predates our legal framework, through its long existence outside of it. The Canadian common law absorbed this opposite-sex requirement of marriage to underpin the myriad of federal and provincial legislation relating to it....
Preserving the definition of marriage as the descriptor of this opposite sex institution is not discriminatory....
Same-sex marriage is an oxymoron, because it lacks the universal or defining feature of marriage according to religious, historical, and anthropological evidence. Apart from everything else, marriage expresses one fundamental and universal need: a setting for reproduction that recognizes the reciprocity between nature...and culture....
The legal definition of the word cannot be changed without creating “an unacceptable cleavage between ordinary usage and the legal meaning; moreover, such redefinition is in conflict with the normal use and development of language”....
As overwhelmingly demonstrated by the evidence, marriage is universally understood, across time, societies and legal cultures, as an institution to facilitate, shelter and nurture the unique union of a man and a woman who, together, uniquely, have the natural capacity to have children. The greatest number of children continues to be both the offspring of marriage and brought up by their parents.
The meaning of marriage seeks to recognize, by its very essence, a particular kind of relationship, albeit one that corresponds to the characteristics of a majority, as opposed to a minority group. Nevertheless, as a definition, it remains uniquely suited to, and corresponds with, the particular needs of that group. It would represent a formalistic approach to equality to require identical treatment with respect to the definition of marriage.
In sum, the definition of marriage does not infringe s.15(1) of the Charter...because the distinction it draws does not amount to “discrimination.” While the definition distinguishes on the basis of sexual orientation, the distinction is not the product of stereotypical categorizations or assessments of the relative worth of individuals. Instead, marriage differentiates only on the basis of capacity or need, and thus it does not come within the range of invidious distinctions which s.15(1) was designed to eliminate.
Every word that I have just cited comes from the factums filed by the government's Attorney General, the current Deputy Prime Minister, before the Ontario Superior and Appeal Courts in the Halpern case.
These arguments and this evidence constituted the official position of the government only 24 months ago, the same government that now claims that traditional marriage constitutes a violation of fundamental human rights.
I submit that this is cognitive dissonance writ large. These arguments amplify the last opinion of the Supreme Court of Canada on the constitutionality of marriage in Egan in which Mr. Justice La Forest, speaking for himself and four other justices, famously declared that:
Suffice it to say that marriage has from time immemorial been firmly grounded in our legal traditions, one that is itself a reflection of longstanding philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.
The marital relationship has special needs with which Parliament and the legislatures and indeed custom and judge-made law have long been concerned. The legal institution of marriage exists both for the protection of the relationship and for defining the obligations that flow from entering into a legal marriage. Because of its importance, stability and well-being of the family and, as such, as Gontier J. argued in Myron v Trudel, Parliament may quite properly give special support to the institution of marriage.
That was the last statement on the constitutionality of marriage by the highest court in our land.
The Supreme Court pointed out in Egan that the special status according to opposite sex marriage “does not exacerbate an historic disadvantage (of same sex couples); rather it ameliorates an historic economic disadvantage...” faced by married couples because of the transactional costs associated with raising children.
It would also be helpful to recall the insightful judgment of Mr. Justice Pitfield of the British Columbia Supreme Court in EGALE v the Attorney General rendered in 2001. While his judgment obviously does not carry the same weight as the Supreme Court precedent in Egan, his analysis I believe is trenchant. Judge Pitfield said:
While, in the recent past, same-sex couples have been accorded many of the rights and obligations previously reserved for married couples, the one factor in respect of which there cannot be similarity is the biological reality that opposite-sex couples may, as between themselves, propagate the species and thereby perpetuate mankind.
...Marriage remains the primary means by which mankind perpetuates itself in our society..., The state has a demonstrably genuine justification in affording recognition, preference, and precedence to the nature and character of the core social and legal arrangement by which society endures.
The legitimacy of the state's interest in marriage is beyond question. There is no need for scientific evidence. The importance of the essential character of marriage to Canadian society is a matter of common sense understanding and observation....
That was a brilliant assessment. Now it is true that Judge Pitfield's considered decision was later overturned at the B.C. court of appeals but it is equally true that the above cited Supreme Court declaration on the constitutionality of marriage stands as the last word on this question, notwithstanding the shockingly cavalier attitude of certain lower courts to reject the principle of stare decisis as manifest in Egan.
We now find ourselves at this bizarre impasse where the federal government is claiming that it is compelled to take complete ownership of a primordial, pre-legal institution that belongs to civil society and, I submit, not the state, and to fundamentally change its meaning by the warrant of a handful of replicated lower court decisions rendered in total disregard of the normal restraints inherent in the development of common law and disregard of the judgment of the Supreme Court and in disregard of the will of this Parliament.
Canadians ask how we find ourselves here at this point. The answer is clear. The government failed in its duty to ensure constitutional clarity on this question through its irresponsible decision not to appeal the Ontario Appeal Court decision in Halpern and in other critical cases such as Rosenberg.
Having so failed, the government then decided to frame a reference question that it hoped would elicit its desired outcome, namely a Supreme Court finding that marriage was unconstitutional, which would give the Prime Minister the ability to force the current bill on Parliament as a constitutional obligation while washing his hands of any political responsibility for undoing the meaning of marriage.
Of course, we now all know that the justices of the Supreme Court refused to be used in this political stratagem and pointedly declined to declare ex cathedra the unconstitutionality of marriage.
Now the government has been undone by this unexpected act of judicial restraint. Its response has been to dissemble and claim through tortured logic that notwithstanding the court's refusal to nullify marriage, the court did it anyway.
There has been much deliberate confusion on this point by the Minister of Justice, from whom I expect more. To set the record straight I want to read directly from the court's response. Question No. 4 reads:
Is the opposite-sex requirement for marriage for civil purposes...consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
The answer reads:
The Court exercises its discretion not to answer this.
In its detailed reasons, the court effectively chastised the government for trying to pass the buck, pointing out 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”. The court also openly speculates on the possibility of a yes answer to the question, which would affirm the constitutionality of heterosexual marriage, saying that this would “throw the law into confusion”.
Notwithstanding all of this, the Prime Minister refuses to take ownership of his decision to change the meaning of marriage and now he refuses to discuss the real issues at play, such as the impact of this decision on social stability and continuity, the relations between the sexes, the encroachment of the state into a sanctuary of civil society, and the ancillary effects on the free exercise of religion, et cetera.
What does he do? He creates a distraction and a bogeyman called the notwithstanding clause, arguing that the proponents of marriage secretly wish to invoke the clause in order to jeopardize all of Canadians' fundamental and acquired rights. There is one word that appropriately describes this cynical strategy on the part of the Prime Minister: demagoguery, defined as the impassioned appeal to the prejudices and emotions of the populace.
Let us be clear. Were Parliament to exercise its constitutional authority to define the limits of marriage as contemplated in this bill, but to define it in accordance with its essential and universal, i.e., heterosexual, sense, such a statutory declaration would immediately trump the various provincial court common law decisions that have redefined marriage.
Would the constitutionality of such a statute then be challenged? Almost certainly. Would it survive such judicial scrutiny? If the Egan court were to answer that question, yes, it would.
Some self-styled experts have argued that the unconstitutionality of marriage is now settled law, but these same experts, members of what has been called the court party, embarrassed themselves in predicting a clear negative answer to question number four in the reference.
I, for one, believe that the Canadian judiciary would exercise far greater care and restraint in nullifying a statute adopted by Parliament than it has in changing the common law.
I would also like to point out that indeed it was Liberal Prime Minister Pierre Trudeau and Liberal Prime Minister Jean Chrétien who in 1981 ensured the incorporation of the notwithstanding clause in the charter and its applicability to Parliament. They chose to do so. They also chose, parenthetically, to veto an effort to include the term sexual orientation as enumerated grounds under section 15 because of the ambiguity of definition of that term and the potential that it could be misinterpreted by courts to create positive rights such as the one enshrined in this bill.
Finally, the current Prime Minister, I submit, implicitly voted for invocation of the notwithstanding clause in this place in 1999. The motion that he and the rest of the government voted for read: “That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and woman to the exclusion of all others, and that Parliament will take all necessary steps” within the jurisdiction of Parliament “to preserve this definition of marriage in Canada”.
We heard the current Deputy Prime Minister quoted as saying that for the record the government has no intention of changing the definition of marriage or of legislating same sex marriage in that debate, but here is the point. Some Liberal MPs voted against the motion at that time because they thought that “all necessary steps” implied invocation of the notwithstanding clause to preserve marriage. The Prime Minister nevertheless voted for it and therefore I submit ought not to make a phantom issue of notwithstanding on this issue.
I want to move on to the question of fundamental rights, because that is really what is at the heart of the government's argument. Nowhere in any of the principal human rights statutes of the world is there to be found a grounding for so-called same sex marriage, not in the Universal Declaration of Human Rights, not in the declaration of the rights of man, the bill of rights, the European Convention on human Rights, the Canadian Bill of Rights or the Organization of American States covenant on human rights. To the contrary, many of these foundational documents of human rights law enumerate a specific right to marriage in the exclusively heterosexual sense.
I know that I must draw to a close. I simply point out that if the government is consistent in its position, then it will have to take leave to seek to appeal the UN covenant on human rights and other major international human rights instruments because they speak explicitly to the heterosexual definition of marriage, which I believe--