Thursday, December 08, 2005

Law and the Interpretation of Unwritten Principles: Why the Law must not be viewed as Comprehensive

In a recent email exchange between a group of lawyers and legal academics a question was raised in relation to a speech given in New Zealand by Canadian Chief Justice Beverly McLachlin in which she is quoted as saying that: "The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion" See: Janice Tibbetts, National Post, CanWest News Service, Monday, December 05, 2005. Listed were "norms that are essential to a nation's history, identity, values and legal system" and she mentioned several such as: "the right to not be punished without a trial, to retain counsel and to enjoy the presumption of innocence".

These are rather unobjectionable and no one would disagree that these are essential parts of the "rule of law" referred to in the Charter's Preamble.

What people object to, however, are not these "motherhood" types of legal principles but the application of general terms such as "equality" to such claims as same-sex marriage for example.

The question about whether judges should or should not "go beyond" the written words of a constitution needs to be carefully unpacked lest we accept Justice McLachlin's claims (and I have not had the benefit of reading her full paper) and rope in some kinds of claims (i.e. same-sex marriage) to others such as "fundamental" freedoms.

Much of law is necessarily beyond the written words whether as a result of, with statutory laws, interpretative necessity (by application to "facts" the trier of fact must determine or as a result of the ambiguity of meaning in words, phrases and intentions or a combination of the two to particular situations) or because the case-law (being unwritten save in factual contextualized prior cases) has to be found to be governed or not governed by the developing tradition of the law (such as common law "incrementalism").

In both cases, the judge is necessarily operating, in a sense, "beyond" precise words since the whole question is one of application and meaning to specific cases. In the same-sex marriage decisions the written ("equality") and unwritten ("dignity") were being applied from and towards the written (constitution) and unwritten "common-law development" streams of law. Debates on both sides engaged every aspect, one of which was whether marriage was and is properly a creation of law at all. The courts simply ignored this.

What is interesting therefore about our current discussion isn't so much whether the words are there or not (they are both in written or unwritten cases) but the assumptions upon which the interpretations are based and the telos (usually unarticulated) to which the decisions are oriented and what this shows us about certain contemporary jurists understanding of the scope of the rule of law.

Thus, when "same-sex marriage" is found to be within the meaning of "equality" and the common-law principle of incremental development (where the second leg is that there not be "unforeseen consequences") and the whole analysis was driven by the same-sex claim for "dignity" read as the desire for social recognition as against concerns from many religious groups (for example) about their own dignity being pressured, we get a glimpse of what the assumptions are and where they tend.

In this case, the assumption that "my desire for social recognition as a gay or lesbian" is something that the law can and should be cognizant of, was rank-ordered as higher than the concerns from the religious groups that "our recognition of marriage will now lead us to be social outcasts" due to the assumption that that the law can drive us towards the promised land of equality where, some day, all will agree with the new direction....

In the new dispensation (self administered) law is not just capable of driving us to consensus, but must do so as a divine (small "d") mandate.

What is at issue is actually the role of law in the state and its role in relation to society. McLachlin's paper and Jean Elshtain's response in the McGill Press volume edited by Douglas Farrow, Recognizing Religion in a Secular Society (available from the Centre's website) is key here: is or is not the law a system of "comprehensive claims?" McLachlin says "yes", Elshtain "no".

How we answer that question determines in many ways how we will line up with respect to the original question. After all, the "natural law" was never created by the jurists but elsewhere in days when Bracton and Blackstone simply stated that there were these divine principles at the beginning of their works then focused upon the practical principles thereinafter.

Now if law is a replacement theology in the contemporary era - - as some seem to think and talk (how else can "law" be a "comprehensive" claim to meaning in any sense?) it ought not to surprise us that it will be subject to the same "theocratic" temptation religions faced and face.

Thus, the assumption of eventual agreement and of the constitution's capacity to get us there "with a little help from its judicial midwives" based upon a confidence that law has ultimate capacity to answer ultimate questions is the real problem not whether a principle is or is not within the written law or whether a judge is or is not "emboldened".

We want bold and just judges, we just don't want them to be gods. Law that goes all the way up will surely take us all the way down however levelheaded its proponents seem to be.

CENTREBLOG: Volume 107
Iain T. Benson ©

Monday, December 05, 2005

South Africa’s Marriage Law Decision and Further Extension of the Law

On December 1, 2005 the Constitutional Court of South Africa issued reasons for judgement in the marriage decision argued last spring. The two cases heard together (and for brevity may be referred to as the Fourie case) involved a reconsideration of both the “common law recognition” of marriage as the union of a man and a woman and the South African Marriage Act which was also restricted to heterosexuals. The reasons may be found here:

As in Canada, religious groups intervened to put their concerns before the Court. These concerns were addressed in some measure. What I wish to comment upon in this blog, however, is a truly startling addition to the judicial reasoning. There was nothing like it in the Canadian cases.

Justice Albi Sachs gave the majority reasons of the court. All judges concurred with his reasoning except one, though she agreed in the outcome. She would not have delayed the remedy for a year to give Parliament a chance to address the unconstitutionality but wanted "same-sex" marriage read into the law right away.

On the question of remedy, the majority gave Parliament an opportunity to influence what sort of regime to put into place. Whatever it does it must insure that both the tangible and “intangible” benefits of heterosexual marriage are given to same-sex marriage. Quite apart from the question of how the law can address “intangible” benefits (how are they to be enforced, for example?) was the following passage about remedy. The passage appears to seriously tie the hands of Parliament. On one reading, it precludes Parliament from “getting out of marriage” altogether. No other court has made this sweeping a restriction on the democratic process.

Here is what Justice Sachs wrote:
[149] overcoming the under-inclusiveness of the common law and the Marriage Act, it would be inappropriate to employ a remedy that created equal disadvantage for all. Thus the achievement of equality would not be accomplished by ensuring that if same-sex couples cannot enjoy the status and entitlements coupled with the responsibilities of marriage, the same should apply to heterosexual couples. Leveling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalization; it calls for equality of the vineyard and not equality of the graveyard. 146
The footnote is key. Note what Justice Sachs sets out there:
146 It could have been considerations such as these that encouraged the SALRC to drop the option of replacing civil marriage for heterosexual couples only, with the notion of abolishing civil marriage altogether and replacing it with a civil union available both to heterosexual and same-sex couples. This is a matter which this Court is not obliged to consider at this stage. [emphasis added]
Recall that in earlier comments about the history of same-sex marriage (carried on this blog site) the point has been made that the common-law did not create the category of male/female marriage, it recognized it. The category as a near universal norm is male and female. The new categories are against that near universal norm and require judicial and legal re-definition against recognition.

This point, and its significance, though argued by those who wished the law not to “redefine” marriage to include same-sex relationships, was ignored by the courts both in South Africa and in Canada.

The courts wish to expand their jurisdiction not limit it and the most aggressive example of this is in that passage above. For, in it, Justice Sachs is not saying that the State shouldn’t be in the marriage business - - a perfectly valid Parliamentary decision since the nature of marriage is now as contested as the nature of religion, he is saying that it must stay in the marriage business and that the new marriage must be same-sex marriage inclusive! In so doing he goes well beyond the role of a judge in settling a matter of law. He becomes legislator himself. Since when does constitutional interpretation give the court a mandate to tell the state that it must legislate on certain matters? This is a large overreach and one that ought to concern all those who understand the history of the separation of powers.

It is as if a court required a state to adopt a particular religion rather than drop the idea of establishment! The reasoning of the South African Law Reform Commission document, did not, as a matter of fact, give detailed consideration to this point at all which is why Justice Sachs footnote suggesting it did is rather vague on the point and contains no specific reference to where in the long (400 page plus) document such a “consideration” may be found.

In fact, at dinner with a member of the SALRC some time ago I asked whether the question of an entirely non-marital state registration system (i.e. with no “civil marriage”) had been considered. I was told that it had not been. The same lack of analysis of this way forward appeared in the Canadian context with the Law Commission of Canada Report “Beyond Conjugality” (2001).

In this Report, the Law Commission of Canada briefly considered a state registration system instead of marriage and concluded, weakly, that the state needed to stay in “civil marriage” otherwise what they called “… the option of marrying in a secular ceremony” would be lost (p. 123).

This fails to deal with a more logical alternative. If religions can perform religious marriage, then non-religious associations can perform the non-religious marriages. The State simply takes no sides on “marriage” and registration of all “care relationships” governed by the state’s neutral registration system (for benefits and dissolution and all matters where there is a need of such regulation) would apply.

The Law Commissions do not consider this because they want the power of state coercion to come down on one side of the marriage debate - - same-sex inclusive marriage.

So neither Canada nor South African Law Commissions have considered all the options. They have demonstrably failed to give proper analysis to the question of what alternatives exist should the state get out of marriage leaving it to religions and non-religious associations.

Interestingly, the opposite of what Justice Sachs states can be read from some passages within the SALRC document. Consider the following paragraphs for example:

The distinction between civil and religious marriage is conducive to the
legal recognition of same-sex marriage

8.3.28 Lind points out that it is unfortunate that the term "marriage" is used to describe both the most prominent institution of family law (civil marriage) and the relationship which dominates various moral and social contexts (religious marriage). On the one hand it is a term for the union described by the law with certain legal consequences but with no religious relevance. On the other hand it is a term for the union supported by a variety of religious groups to validate a relationship for religious or moral purposes.

8.3.29 Lind [Lind 1995 SALJ, at 484.] proposes that it might solve the problem to give the two aspects of the institution different names. Lind's proposal acknowledges the fact that marriage in law is more than a moral institution and serves a more diverse community with different and sometimes secular needs. The opposite can also be said, namely that marriage for a religious institution is more than just the legal consequences that the state are concerned with.

8.3.30 If the religious aspects of marriage could be separated and preserved for the religious, many of the moral and religious objections against the legal recognition of same-sex relationships and opposite-sex domestic relationships would be eliminated.
8.3.31 For many, even the civil institution of marriage has special meaning and portrays a certain symbolism. Although many gays and lesbians are opposed to marriage as an opposite-sex institution, many others wish to confirm their relationship in precisely that manner. [footnotes omitted]
In fact, the SALRC quoted (at footnote #60 of the above passage) E Knoesen, then acting director of the Lesbian and Gay Equality Project as follows:

“Society has elevated marriage to a place that is greater than any form of relationship. If I was in a relationship for ten years, I wouldn’t get nearly as much respect as a couple who met two weeks ago and then got married” and “The Lesbian and Gay Equality Project doesn’t promote marriage. We are just saying that it is not the role of the state to tell people who can and can not get married.” [emphasis added]

S Adams “Court Will Decide if Gay Couples May Marry” Daily News October 14 2002.
The most the SALRC did was consider “civil marriage” to be same-sex inclusive and “religious marriage” to be same-sex inclusive, or not, depending on the religious body concerned. The key point is this. The SALRC nowhere gave consideration to the whole question of whether and how marriage could be removed from the state and replaced by another genuinely sex-conduct neutral registration scheme.

As such the matter has not yet been considered in South Africa. For this reason, any restructuring of the relationship between the state and "marriage" could be worked out carefully in such a way that marriage could be left to subsidiary groups in society (associations and religious bodies). The matter of the state getting out of marriage was, as Justice Sachs noted, not before the court in the Fourie case and it would be for another day to argue that before the Constitutional Court of South Africa. Should that day arrive, the Court would have before it, one hopes, a piece of legislation that sets out its social assumptions in a set of recitals that satisfy the courts’ concerns about “celebrating marriages” “diversity” “respect” and “equality”.

Such marriages as occur within subsidiary organizations would, indeed, be “celebrations” with tangible and intangible benefits that recognize the diverse beliefs of the citizenry. They would not, however, be state mandated, organized or controlled. This is the only system that can provide for this diverse recognition.

Any system in which the state adopts a concept of marriage obnoxious to a large portion of the citizens cannot be said to be “neutral” but, rather, shows the use of state power to coerce citizens against their belief systems.

Getting the state out of marriage recognition does not destroy marriage. On the contrary it preserves it. It leaves the state out of the driving seat of what marriage is and replaces marriage with a genuinely neutral registration system for benefits and obligations the details of which need to be worked out but the outline for which has been usefully addressed by the SALRC in its Report.

The failure to have state ratification of marriages ought not to worry the religions who have never, in any case, looked to the state for the meaning or definition of marriage.

Then the question really is: what is best and what is worse in terms of alternative visions of marriage and the state's role in relation to these?

There is an opportunity at this moment for some fresh and creative thinking about marriage and the state in South Africa. It will be interesting to see if those in power there take the opportunity to do their job as legislators or the path of least resistance which, in this case, is also the path to civic confusion and resentment - - both of which Justice Sachs said he lamented.

CENTREBLOG: Volume 106
Iain T. Benson ©