Saturday, January 24, 2004

Supreme Court Asked a Real Question

So the new Justice Minister has put the Supreme Court on the horns of a dilemma. The Federal Government has amended the Marriage Reference Questions. They will, at last, actually ask the Supreme Court a real question rather than simply invite them to give a blessing to "same-sex marriage".

The original Marriage Reference questions represented a serious end-run around democracy. The additional question just added by the new Justice Minister, will make the Court do a bit of work - - perhaps.

Should they actually answer the question (and judges are extremely adept at finding ways to avoid what they do not wish to deal with), they might actually have to decide whether the traditional recognition of marriage, as between one man and one woman, is unconstitutional. Gosh, imagine, the Court actually being asked to deal with a legal issue!

Three cheers for Prime Minister Martin and three Cheers for his Justice Minister.

It will do us all a power of good to have the Court address their minds to this question for it is one that the prior approach studiously tried to avoid when they failed to appeal the decisions of the British Columbia and Ontario Courts of Appeal and then threw some ridiculous softballs to the Supremes.

Were I on the Supreme Court, which I am (as of today’s date) not, I would rule that the traditional recognition/definition of marriage could well be constitutional. This would put the pressure for debate and analysis back where it belongs - - on the parliamentary process and take it from where it does not belong - - in the courts.

We need to analyze whether marriage should be extended beyond those who can actually have children. We need to analyze whether, once we do so, we don’t open the floodgates to include polygamy or group “marriages.”

Canada is a poor excuse for a country at the moment. Its systems of government and law are woefully out of balance. The new question gives the Supreme Court of Canada a chance to salvage a bit of its dignity and put the debate about “same-sex marriage” back where it belongs: under the light of public scrutiny.

There needs to be a full scale Federal Government Commission on Marriage. It is no less an important issue than Euthanasia or Reproductive Technologies - - and both of those got full-blown Commissions. You heard it here first!

Let’s see if the judges have the judicial wisdom and courage to do what is necessary and the politicians have the political insight to hold the inquiry we all need so desperately.

Iain T. Benson©