Monday, February 02, 2004

Government Inconsistent on Marriage

Never comfortable with defending "traditional" heterosexual-only marriage, the Federal Government has shown its ambivalence in a most extraordinary series of manoeuvres in the last year or so. It is important for those unfamiliar with the intricacies of the marriage challenge cases to realize that we are in the process of witnessing the most monumental change in strategy by that government and its legal advisors. The Federal Government was the main Respondent in the various marriage cases that came through the courts in BC, Ontario and Quebec over the last few years.

In the litigation that challenged the traditional definition of marriage, the Provincial Attorneys General generally tried to avoid taking any position either way. The Federal Government, on the other hand, assembled a huge "record" of Affidavit materials from many leading scholars in law, anthropology, history and sociology.

The position that the Federal Government lawyers originally took was that marriage should stay male and female. When they lost at trial in Ontario they appealed. When they won in British Columbia they again took the position on appeal that marriage should remain male and female.

Then the two Courts of Appeal (BC then Ontario) determined that the common law recognition of marriage as exclusively between one man and one woman was unconstitutional. Rather than appeal, the Federal government essentially "threw in the towel" and chose not to appeal. It decided, illogically, to pose a Marriage Reference that while it looked like another way of getting at the same issues, was actually a complete reversal of its earlier position defending male and female marriage.

By so doing, the Federal Attorney General, acting under instructions from the Government, decided that the Supreme Court of Canada would not hear its arguments on heterosexual marriage. They decided that the vast and expensive body of evidence assembled, would not be before the Supreme Court of Canada.

What they then did was to decide that they would ask a few questions to the Supreme Court of Canada about "same-sex marriage". Not whether "same-sex marriage" was permissible, but assuming it was required and whether and to what extent is was a matter of federal or provincial jurisdiction and whether religious officials could refuse to perform same-sex marriages because of their rights to religious freedom in the Charter.

So what happened, in effect, was that the Attorney General deliberately forestalled the normal court process. The careful and expensive affidavits would be buried forever and the Supreme Court of Canada would be asked to bless "same-sex marriage" without the highest court being asked about other alternatives (heterosexual only marriage and/or civil unions to name two). That is what has occurred.

Recently, the new Justice Minister has decided to add a question dealing with the substance of the original court application - - the Court will now be asked an additional question: could a "heterosexual only" marriage standard survive Charter scrutiny is now a question that will be put before the Court. This is a good thing.

But note what will be missing from the litigation before the Supreme Court - - unless an application is made to enable materials to be used from the earlier litigation (such applications happen in the courts to enable affidavits from one proceeding to be used in another proceeding) the extensive record from the earlier proceedings will be missing and there is no discussion of a "third way" such as whether the State should be in the marriage business at all.

Note that the notion of "civil marriage", such as that before the Supreme Court, drives a wedge between "religious marriages" and the State -- as if there is some sort of State marriage that is a higher value than those of religions.

Some think that "civil unions" which do not focus on sexual behaviour might be the more "neutral" way of approaching the whole question but the same-sex advocates and some religious people oppose this.

Time will show whose approach would have been best but it is interesting that the Government does not want to put this question before the Supreme Court despite its claim to have all the options discussed by Canadians.

A recent (January 30th) in-house question and answer document prepared for the Liberals says that a "civil unions" model would "deprive all Canadians of marriage recognition". What nonsense! It would only mean that State recognition would not turn on "marriage" and for most religious people the State's recognition is irrelevant in any case! Again, it is the same-sex community that wishes to insist on State recognition.

Civil unions would allow a State not to focus on "marriage" for Federal benefits and the category of "civil unions" could be extended to all citizens in dependent relations and need not focus on sexual relationships only or at all. Same-sex advocates do not like "civil unions" as they consider that they do not recognize same-sex sexuality which is what that group wishes to have publicly recognized.

In short, Canada is not approaching the marriage question fairly and openly so as to get the matter properly dealt with. The question recently added by the new Justice Minister, while a step in the right direction, does not deal either with the question of "civil unions" nor the missing record of affidavits used by the lawyers before the BC, Ontario and Quebec courts. All Canadians should note the following.

What will the Federal lawyers say about the new question (heterosexual marriage only)? Will they "shoot it from behind" and say that a heterosexual only definition of marriage is unconstitutional? Somehow they decided that their original position (defending male/female marriage) was wrong! What changed?

Did they stumble upon some new metaphysics in the night? Perhaps it was left unseen under one of their lawyers' own desks having been lost in the months of preparation and perhaps millions of dollars spent getting expert opinions from around the world? Or perhaps it was the sheer brilliance of the Ontario and BC Court of Appeal decisions that convinced the Federal lawyers and their Government handlers? Hardly.

The change of view that will now be put before the Supreme Court of Canada by the Federal lawyers will represent perhaps the most stunning "about face" in recent litigation history and gives further evidence, if such evidence were needed, about how Canada's ship of State is not being steered by any proper tiller of principle but by the direction in which the bow happens to be pointing at the moment. Political expediency, c'est nous.

Not the best form of navigation but the one we seem to be using in Canada. When the case finally gets heard before the Supreme Court of Canada there will be a lot of arguments to be sure but one wonders what it will have to do with law as we used to know it.

Iain T. BensonĀ©