Wednesday, December 15, 2004

The Fix Is In

Stephen Harper has indicated that the Conservative Party will be seeking amendments to the forthcoming Liberal same-sex legislation which will protect the traditional definition of marriage.
In reponse we have Liberal Justice Minister Irwin Cotler making this comment (from CTV).

If Conservative Leader Stephen Harper wants to pass an amendment to reaffirm traditional marriage, he'll need to use the "not-withstanding" clause to do it, Justice Minister Irwin Cotler says.

"You can't have it both ways," he said in a news conference Tuesday afternoon. "The moment the court affirmed the constitutionality of extending civil marriage to gays and lesbians, at that very moment, it is declaring the opposite-sex requirement for marriage is unconstitutional," he said, referring to last week's Supreme Court of Canada reference.

Actually, as I understand it, the Supreme Court specifically refused to render a decision on the fourth question put to it by the Liberals, which asked whether the current definition of marriage (one man, one women, to the exclusion of all others) was constitutional. Parliament has the authority to enact a same sex marriage law. The Court did not say it was compelled to do so.

Parliament, therefore, is quite free to pass a law reaffirming the traditional definition of marriage. Those who oppose the law may well take the new law to court and in the end the Supreme Court may be render a verdict requiring same sex marriage, but until that happens the people's representatives are free to enact a law defending the traditional definition of marriage, without using the constitution's notwithstanding clause.

We have an interesting chronology here.

First, parliament refused on more than one occasion, when framing the Charter of Rights and Freedoms, to place homosexual "rights" into the Charter.

Second, the Supreme Court ignored Parliament's will and "read in" homosexual rights into the Charter anyway.

Third, parliament subsequently reaffirmed the traditional common law definition of marriage.

Fourth, using the Supreme Court's "read in" right, various people challenged existing marriage law as being unconstitutional. Lower courts stuck down the common law definition of marriage on the grounds it violated the same sex equality provision of the Charter (which the courts, not parliament inserted into the Charter remember).

Fifth, the Liberal government refused to appeal the decision of the Ontario Court of Appeal, thereby making same sex marriages legal in Ontario. Other provincial courts followed suit. This refusal to appeal to the highest court was done in order to create a legal fait accompli. The Supreme Court may, or may not, have upheld the common law tradition. We'll never know because we were never given the opportunity to know.

Sixth, the Chretien Liberals referred three questions respecting the legality of same sex marriage to the Supreme Court.

Seventh, the Martin Liberals asked a fourth question of the Supreme Court in an obvious and blatant attempt to delay the Supreme Court decision until after the federal election. We couldn't be allowed to have this as an election issue could we. The people might not agree with the plan.

Eighth, Paul Martin, in the election, states that he will not use the notwithstanding clause to remove rights from people. How do we know same sex marriage is a right? At this point there is no specific law and no Supreme Court ruling on same sex marriage to justify such a claim.

Ninth, Paul Martin appoints two judges to the Supreme Court who have a record of extending same sex rights. Just in case he needs the votes later.

Tenth, Justice Minister Cotler, on the eve of the decision pre-empts the Supreme Court by announcing the Liberal Government's intention of proceeding with same sex legislation regardless of the decision of the Court. Why all the legal huffing and puffing then?

Eleventh, the Supreme Court decsion is rendered. They do not answer the fourth question put to them (interestingly, despite a law apparently saying they must).

Twelfth, Ralph Kline of Alberta calls for a referendum. Paul Martin vetoes this idea. Something about letting the people determine the fundamental structure of society being a foolish idea.

The fix is in folks. If you oppose this legislation then you'd better get onto your MP's case about it. You also might demand a completely free vote in the Commons. Paul Martin is requiring his Cabinet to vote for the Bill, even if their conscience is opposed to it. Now that's democracy in action. (One brave Liberal minister, John Efford, has said he may resign rather than comply.)

Has the polygamy lobby started to make any noise yet? They will. And on the basis of how marriage is being redefined, there is no principled basis on which to oppose it.


At 9:44 am, December 15, 2004 , Blogger Andrew said...

Two ministers have now stated they may resign - and 6 others are not too happy with having to vote with the cabinet.

There's a spirited debate that spans three threads over on my site - lots of conflicting opinions on what to do.


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