Peter Hogg's Choices

Peter Hogg the former dean of Osgoode Law School and constitutional scholar has a piece in today's Globe & Mail in which he gives us the lay of the land on same sex marriage. Essentially, he says that parliament has four choices before it. It may:

1. redefine marriage to accept gay marriage (the government's announced intention);
2. hold a referendum (the Prime Minister has rejected giving the people a say and it it doubtful that the judicial living tree priesthood would honour a rejection by the people);
3. enact a civil union approach (apparently, not within parliament's power, as relationships other than marriage are the provinces' juridsdiction, not that of the federal government; or
4. retain the current definition and use the constitution's notwithstanding clause to override any Charter challenges. The use of the notwithstanding clause would have to be repeated every five years, or the Charter would apply.

It goes without saying that Mr. Hogg understands these things much better than I do. If he is correct, then it is apparent that any attempt to retain the common law definition of marriage, would have to make use of the notwithstanding clause. I don't see much hope of this happening. In legal terms this is pretty much a fait accompli. This turkey was cooked when the courts read in sexual orientation into the Charter of Rights and Freedoms.

I've already posted my thoughts on the horrid process by which this matter has moved forward. Whatever the advocates of gay marriage intend, and whatever the merits of their cause, the resort to judicial fiat over parliamentary debate has diminished our democracy and entrenched the rule of unelected and unaccountable judges. The retort of the judiciary to this charge is that it was parliament that created the Charter and they are merely interpreting it as is their duty.

The argument would be more persuasive had the court not seized every opportunity to fertilize and water their living tree with such abandon. It is Trudeaupia in action. They are quite prepared to trample democracy in pursuit of their notion of the good. As for our political leaders, ... well that's for another post.