Canadian citizens are invited to wedding — but can't speak up

By Rob McKenzie | Special to the Sentinel
Posted February 14, 2005

STOUFFVILLE, Ontario — "Almost all of us have entered or will one day enter a specifically standardized form of monogamous marriage," the Canadian philosopher John McMurtry wrote in a 1972 article in philosophical journal The Monist.  "This cultural requirement is so very basic to our existence that we accept it for most part as a kind of intractable given: dictated by the laws of God, Nature, Government and Good Sense all at once."

Three decades and change (and change, indeed) later, the standardized form of marriage reigns not so intractably.  The United States saw a push last year to allow same-sex marriages, a push that resulted in referenda soundly defeating the idea in 11 states, among them largely liberal Oregon, in November.

A similar push is under way in Canada, with two differences.  One, it will almost certainly succeed.  Two, there will be no referenda on the matter.

The same-sex marriage debate was kickstarted in Canada by the wedding, in January 2001, of two gay couples in a Toronto church.  The legality of the weddings was hazy at best; indeed, part of the intent of the weddings was to provoke a court case clarifying whether the Canadian constitution would enshrine the right to such marriages.

A lower court sided with the couples in July 2002, and Ontario's highest court gave them a second victory in June 2003.  (Incidentally, the Chief Justice of that court was Roy McMurtry, brother of the philosopher John.)

Then things got tricky.  The federal Liberal government, which was about as eager to deal decisively with this issue as a normal person is to inject himself with typhoid, had to decide whether to appeal to the Supreme Court of Canada.

The government successfully muddied the waters by drafting a new marriage law, then asking the Supreme Court to parse the law and pronounce it acceptable before its introduction in Parliament.  This novel abdication cast the government in a passive role and the court in an active role, which was not to the liking of many conservatives but was certainly to the liking of the Liberals.

The Supreme Court gave its unanimous blessing to the draft law in December.  The bill is now before the House of Commons, which is the house of Parliament with nearly all the power.

The day on which each politician must vote Yea or Nay approaches, and this is not a duty for which a convenient Supreme Court justice can stand as his or her proxy.  There is only one way now the politicians can avoid making a decision, and yet that way is thoroughly repugnant to them.

That way would be to call a referendum.  In a national poll of 885 Canadians last month, 67 percent of respondents favored settling the matter this way.  But the referendum could swing either way, as the poll found roughly a third of respondents against gay marriage, a third for it, and a third against it but for the creation of a Vermont-style "civil union" for same-sex partners.

Irwin Cotler, the federal Justice Minister, quickly shot down the idea of a referendum, and in so doing encapsulated the disdain many Canadian politicians feel for untrammeled democracy: "You don't want a public-opinion snapshot at a particular point in time deciding fundamental rights protected under the Charter, that have been affirmed by the courts," he said.

In other words, nine robes good, two legs bad.

The same-sex bill will almost certainly pass.  Conservative and religious groups are fighting a desperate rear-guard action to preserve traditional marriage, with their American allies providing some of the funding.  When it emerged last week that the U.S. headquarters of the Knights of Columbus and Focus on the Family were so involved, Cotler pondered a possible ban on such foreign interference.  "Clearly, we have free speech, but at the same time we want to protect the political equities in terms of the marketplace of ideas," he reasoned.  "In other words, we don't want the public opinion to get mortgaged to the highest bidder in a certain sense."

The bill will pass largely because the Liberal Cabinet, which constitutes 12 percent of the Commons, is obliged to vote in favor of it — that's a big lead right there.  And if the matter is tight, Liberal politicians who oppose the bill will be persuaded to not show up for the vote.

McMurtry — the philosopher, not the judge — observed in his 1972 essay that the occasional alterations to the rules of marriage tend to be "in plumbing rather than substance."

He may still be right — but what plumbing!

Rob McKenzie is an editor and writer at the National Post, a coast-to-coast newspaper in Canada.  He wrote this commentary for the Orlando Sentinel.