Mr. Speaker, I am pleased to have the opportunity to participate in the debate surrounding Bill C-38, the civil marriage act, that proposes to legalize same sex marriages in Canada.
Like many of my colleagues on both sides of the House, I voted in support of the traditional definition of marriage in 1999 and again in 2003. I remain committed to defending this definition, not only because of my personal beliefs but as the elected representative for Lambton—Kent—Middlesex I have an obligation to vote according to the views of the majority of my constituents.
Prior to the vote that took place in 2003, I sent a survey to every household in my riding. Of the responses I received, 90% of my constituents were opposed to same sex marriage.
Since the Supreme Court of Canada provided its opinion on the reference case, approximately 2,000 constituents have contacted my office to relay their continued opposition to same sex marriage, while less than 50 constituents have contacted me in support of the proposed legislation.
In 1999 the House of Commons reaffirmed the traditional definition of marriage as the union of one man and one woman to the exclusion of all others by a vote of 216 in support and 55 opposed. In 2003 another vote took place and this time 137 were opposed and 132 voted in support. The motion affirming the traditional definition of marriage was upheld in 1999, but was defeated in 2003.
Although I voted to support the traditional definition of marriage both in 1999 and 2003, many others switched their vote. The question I have is, what changed between 1999 and 2003? The answer is, the courts.
Several cases were brought before different provincial courts dealing with this issues, but the most notable was in July 2002, in Halpern v. Canada, in which the Ontario Superior Court challenged the traditional definition of marriage. This controversial judgment was followed by two similar decisions in Quebec Superior Court and the British Columbia Court of Appeal.
Halpern gave the federal government two years to consider legislative options. Before the federal government had an opportunity to complete public hearings on this issue, the Ontario Court of Appeal declared on June 10, 2003, that it would not bother to wait for the government. It struck down the existing law of marriage as discriminatory, redefining marriage as a union of two persons.
When the Charter of Rights and Freedoms was being created in 1981, some opponents saw the charter as a move to reallocate authority from those who attained their position through election to those who attained their position through appointment. The concern was that the power to define law and determine rights was being given to those who were immune to review by the people, the electorate. Since being implemented, the charter has sparked a lively debate over judicial encroachment on legislative authority. The most recent developments concerning same sex marriage is a perfect example of this intrusion.
As a result of these court rulings, a majority of Canadians are now being told that their view of the traditional definition of marriage is contrary to the charter. This pits the charter, which is meant to protect freedom of religion and conscience, against their consciences and indeed their religions on this fundamental matter.
Although the proposed legislation states that “officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs”, the Supreme Court of Canada included in its decision that religious freedoms would be protected, unless there were “unique circumstances with respect to which we will not speculate...” Where there is a collision of rights, the court has stated that it “will find a limit on religious freedom and go on to balance the interests at stake under Section 1 of the Charter”.
While the Supreme Court has stated that there is a level playing field of rights, that is, that no right is superior to another, the way the court has interpreted religious freedom and gay rights leaves gay rights in a superior position.
In the Trinity Western University case concerning religious freedoms, the court said that the freedom to believe was broader than the freedom to act on those beliefs. Respecting gay rights, however, the courts have ruled that protection for homosexual practices is part and parcel of the protection for sexual orientation. If homosexual practices have been protected by the courts without question but religious practices tend to be subject to some more rigorous standards, gay rights will always trump religious rights.
The Knights of Columbus in British Columbia recently refused to permit a gay couple to use their facility for a same sex wedding. As a result, they have been called to account for their actions by the B.C. Human Rights Tribunal. It seems that the religious beliefs may not be enough to protect them against a charge of discrimination based upon the sexual orientation of their rejected clients.
As a result of decisions in several provinces, the traditional and universal definition of marriage violates the charter right to equality of homosexual couples who want to marry. I find it interesting that other countries have not made the same claim that Canada makes, that marriage as we have known it constitutes a rights violation. The United Nations Human Rights Commission has, in practice, denied that it is a rights violation.
If the charter explicitly guarantees homosexual couples the identical rights enjoyed by heterosexual couples, those of us who think same sex marriage is a massive social experiment with unknown consequences will have no basis for criticizing these judges. The problem is that not only does sexual orientation not appear in the equality rights section of the charter, but a motion to include it was explicitly rejected by those who framed the charter. Judges have brazenly put in what the framers kept out.
Since when was homosexual marriage a human rights issue? Same sex is not listed as a human right in the U.S. Bill of Rights, the 1948 United Nations Declaration of Human Rights, the European Declaration of Human Rights and Freedoms, the Canadian Bill of Rights and the Charter of Rights and Freedoms.
I again ask, what has changed since 1999? How has same sex marriage suddenly become a human rights issue if it is not contained in the charter? In my opinion the courts are putting in what they believe Parliament neglected. Again, who are the legislators in the country?
When the charter was being created, our former prime minister, the right hon. Jean Chrétien, defended section 33, the notwithstanding clause. He saw section 33 as a safety valve that would ensure that legislators, rather than judges, would have the final say on important matters of public policy. This would allow elected governments to correct situations without going through the difficulty of obtaining constitutional amendments. This was a very important tool given to the government.
Section 33 does not permit legislators to override rights but to override the judicial interpretation of what constitutes a reasonable balance between rights. Using the notwithstanding power is a perfectly legitimate response to the courts' usurpation of the legislative responsibilities to make laws such as the definition of marriage. This is especially true in regard to the same sex marriage debate because the courts have added new meaning to the charter that was explicitly rejected when it was being written.
In my opinion we cannot tinker with the fundamentals of an institution like marriage without expecting significant consequences. Marriage is not improved by becoming all things to all people. Changing the public meaning of an institution changes the social reality. It transforms the understandings and practices supported by that institution.
Redefining marriage to include same sex couples may appear to be a simple solution to a perceived present day inequality, but the notion of marriage as an opposite sex relationship is so deeply rooted in our society that its redefinition may have far-reaching effects on the future development of our society that cannot be predicted.
Across societies, marriage has institutionalized and symbolized the inherently procreative relationship between a man and a woman. It has established the societal norm that in entering marriage a man and a woman take a shared obligation to protect and nurture the children who are born to them. Marriage has never been so heavily associated with the wants and needs of adults as individuals. If we focus more on the benefits of adults as individuals, it will be our children and future generations who will suffer the consequences.
The government did not create the heterosexual institution of marriage but it did recognize it as such and gave it status in law. By doing this, the government did not remain neutral but instead chose to affirm that marriage was a heterosexual union. Now as a result of court rulings, we the legislators are being told that the definition is no longer valid and are being asked to support Bill C-38, the civil marriage act currently before Parliament.
As I stated in the beginning, I voted in support of the traditional definition of marriage in 1999 and in 2003. I remain committed to defending the definition not only because of my personal beliefs, but because the majority of my constituents in Lambton—Kent—Middlesex agree with me as well. I believe that redefining marriage will have far-reaching negative effects on the future development of our society. Therefore, I am unable to support Bill C-38.