Statement on the Status of Marriage in Canada

DANIEL CERE AND DOUGLAS FARROW

Over the past year four Canadian courts have ruled that marriage, recognized under the common law as "the union of one man and one woman," is inconsistent with constitutional values in modern Canadian society and offends the equality rights of homosexuals under section 15 of the Charter.

Introduction

Over the past year four Canadian courts have ruled that marriage, recognized under the common law as "the union of one man and one woman," is inconsistent with constitutional values in modern Canadian society and offends the equality rights of homosexuals under section 15 of the Charter. These courts have determined that the existing legal framework for marriage is too narrowly defined and does not offer equitable treatment for non-traditional unions.

Two of the courts acknowledged the unique role of Parliament in formulating a proper response to this question. They gave the federal and provincial legislatures until July 2004 to rectify this situation. On June 10, however, the Ontario Court of Appeal acted unilaterally. It pre-empted further discussion by Parliament by striking down the common law definition of marriage and reformulating it as "the voluntary union for life of two persons." The court ordered that this remedy take effect immediately.

In reaching its decision the Ontario Court of Appeal does three noteworthy things. First, it imposes a new and disputed ideology of "close relationships" upon marriage. On this view marriage (for legal purposes) is reduced to the public recognition of committed relationships between two adults. This theory bleaches out the significance of sexual difference and dismisses any "rational connection" between marriage, gender complementarity, procreation, and the rearing of children by their biological parents. It renders a very pale concept of marriage with a doubtful claim on the public interest.

Second, the Ontario Court adopts a strategy which effectively disallows any attempt to defend the traditional, more robust view of marriage from the charge that it is unacceptably discriminatory. It takes up the subjectivist notion of human dignity which has recently been advanced in Canadian courts — viz., that "dignity means that an individual or group feels self-respect and self-worth" — and insists that "the impugned law must at all times be viewed from the perspective of the claimant." According to this formula, the law of marriage must be reconfigured to the experience of same-sex couples. "The question to be asked is whether the law takes into account the actual needs, capacities and circumstances of same-sex couples, not whether the law takes into account the needs, capacities and circumstances of opposite-sex couples." This establishes a circular form of reasoning which no arguments in favour of the existing definition of marriage can hope to penetrate.

Third, and uniquely, it insists that "the courts have jurisdiction to alter the common law definition of marriage" without reference to Parliament. While allowing that the common law did not invent, but only recognized, marriage as the union of a man and a woman, it nonetheless claims the power to re-invent marriage as the union of two persons — contrary to the expressed will of the people of Canada through their parliamentary representatives as recently as 1999.

This decision by the Ontario Court of Appeal has been heralded by some as bringing the whole debate about marriage in Canada — a debate still in its infancy — to a fitting conclusion. By others it has been denounced as an especially egregious example of judicial activism. In our view it only serves to underscore the conclusion of earlier judgments, namely, that Parliament, not the courts, is the place to forge an appropriate legislative response to the complex and multi-layered issues surrounding the public definition of marriage and the legal recognition of same-sex unions. Given the very grave significance of this public debate for three vital institutions in our nation — the family, the judiciary, and Parliament — a great deal more serious deliberation and democratic input is required.

I. Proposals for Respecting Marriage

The institution of marriage has a long history of development and adaptation. So too, of course, does our society. We recognize that there is a need now, for a wide variety of reasons, to re-think our society's approach to marriage. We also recognize that there is a need to provide new legal frameworks for various forms of adult inter-dependent relationships. However, we maintain that marriage as the common law has long recognized it — as "the voluntary and lawful union of one man and one woman to the exclusion of all others" — is something distinct from other forms of human relationships. We do not accept that this time-honoured institution, which continues to provide the vital core of family life in Canada, can justly be impugned as discriminatory. We therefore make the following proposals:

a) Parliament should assert its right, by whatever means necessary, to determine the ways in which marriage is to be recognized in Canadian public life, and to forge patiently a comprehensive legislative response to the complexities of the current situation.

b) Canadian law should continue to embody the conviction that marriage, as an opposite-sex union which is commonly aimed both at mutual support and at the procreation and rearing of children, is the principal social basis upon which our society seeks to ensure its vitality, stability, and perpetuation.

c) Legislative changes made in order to facilitate the recognition of other forms of adult relationships involving cohabitation and mutual support should be made under appropriate titles that do not negate the recognition of marriage as the union of two persons of opposite sex.

II. Why Preserve the Existing Definition of Marriage?

Marriage is a unique cultural institution that affirms and supports a distinct social ecology in human culture: the bridging of the gender gap; the generation of life through the fusion of the sexes; the birth-right of children to know, to be connected to, and to be in stable relationship with, their natural parents.

Marriage pre-exists European colonization and reaches back into Canada's aboriginal traditions. It is also a pillar of the Judeo-Christian traditions that have helped to shape Canadian life. In the recent parliamentary hearings aboriginal, Muslim and other cultural or religious groups in our diverse society have urged parliamentarians to resist proposals to abolish (by over-extension) the legal recognition of this distinctive human institution so vital to Canadian culture and history.

Without implying that there is one comprehensive understanding of marriage to which everyone ought to give full assent, nevertheless there are core elements, purposes, and aspirations of marriage that have won wide approval and deserve to be handed on from one generation to the next:

Marriage is based on the free consent of one man and one woman to join as husband and wife in a union of life together.

  • Marriage is truest to its nature when monogamous and faithful.

  • Marriage serves the vast and complex social-sexual ecology of male-female bonding (99.5% of all couples in Canada are heterosexual).

  • Marriage serves the procreativity of male/female bonding; conjugal union between a man and a woman is the only social union that can be a reproductive union.

  • Marriage, as an institution, has a child-centred dimension; it directs mothers and fathers to the care and support of their children.

  • Marriage establishes the norm that children have a prima facie right and a need to know, to be connected to, and to be raised by their own mother and father, unless exceptional adverse circumstances dictate otherwise.

  • Marriage is generational and genealogical; it binds together the past and the future.

  • Marriage pre-exists the state and religion; while it is appropriately recognized, regulated and affirmed by the state and religions, nevertheless, it is not created or determined by the state or religions.

While marriage has a unique and indispensable place in human existence, nevertheless it is neither necessary nor good that every human person should enter into this particular form of social union. All of the above can be affirmed without prejudice to the fact that there are other forms of personal relationships that have their own distinct dignity and purpose.

III. The Perils of the Current Remedy

By a narrow and disputed vote of the Commons justice committee, our federal government has been urged to capitulate to the decision of the Ontario Court of Appeal, and now appears to be in the process of doing so. While we applaud the government's decision to put the impending legislation to a free vote in the House, we urge it to recognize the danger in taking the country down the path marked out by the Court, in the face of so many unresolved questions and in the absence of anything like a consensus. We recognize that there is a need to address patterns of unjust discrimination, wherever they occur, against persons of homosexual orientation. But we ask our parliamentarians to consider closely the many good reasons for objecting to the Court's remedy, among which are the following:

  • This remedy is not in continuity with the history, tradition, and values of Canadian society. It attempts to re-design an institution which is older and more fundamental to Canadian society than Parliament itself.

  • This remedy wrongly impugns that institution, and its many supporters, as discriminatory.

  • This remedy, while meant to respect diversity, actually diminishes diversity by homogenizing very different forms of relationship. However well-intentioned, it is an inappropriate and inadequate response to concerns about the equality under law of persons of homosexual orientation.

  • This remedy pre-empts legitimate debate, inside and outside of the legal system, as to the meaning of Section 15 equality rights.

  • This remedy threatens to obstruct the ability of governments to develop public policies which promote the distinct characteristics of marriage, affirm the good of intact families, and support the relationship of children to their mothers and fathers.

  • This remedy threatens the freedom of individuals and communities working to support and promote the common human understanding of marriage as the union of a man and a woman, inasmuch as it may open such activity to charges of discriminatory speech or conduct. It threatens religious freedom, academic freedom, and the freedom of parents to educate their children according to their traditions, norms and beliefs.

  • This remedy, in the words of Mr. Justice Robert Blair of the Ontario Superior Court, is not merely an incremental change in the law, but a "profound change." Justice Blair points out that "the consequences and potential reverberations flowing from such a transformation in the concept of marriage … are extremely complex. They will touch the core of many people's belief and value systems, and their resolution is laden with social, political, cultural, emotional and legal ramifications. They require a response to a myriad of consequential issues relating to such things as inheritance and property rights, filiation, alternative biogenetic and artificial birth technologies, adoption, and other marriage-status driven matters." Previous experience in Canada with far less radical changes to marriage legislation demonstrates that such concerns cannot reasonably be dismissed as "speculative."

Conclusion

The commitment of Canadians to fairness, equality, and tolerance may entail the extension of legal recognition to various kinds of relationships beside that of marriage; indeed it has already done so. But that commitment will not be served by expropriating and reconfiguring an historic institution designed to meet the unique challenges and complexities of opposite-sex conjugal relationships. It would be better served by maintaining the existing institution of marriage and simultaneously affirming the federal government's right and obligation to recognize in appropriate ways those other forms of relationship which merit legal status across Canada. Canadians, whatever their faith or ethnic backgrounds, whatever their sexual orientation, should resist any approach that would undermine, rather than meaningfully develop and enrich, an institution so essential to the well-being of Canadians past, present and future.

Signatories

Affiliations listed after the signatory's name are for identification purposes only.

Douglas Allen, Simon Fraser University
Iain T. Benson, Barrister and Soliciter
Spencer Boudreau, McGill University
Bishop Anthony Burton, Anglican Diocese of Saskatchewan
Barry Bussey, General Counsel, Seventh-day Adventist Church In Canada
Ernest Caparros, Emeritus Professor of Law, University of Ottawa
Daniel Cere, Institute for the Study of Marriage Law and Culture
Bruce Clemenger, President Evangelical Fellowship of Canada
Veronica N. Dewar, Inuit Women's Association of Canada.
Lorna Dueck, Broadcaster
Salam Elmenyawi, Muslim Council of Quebec
Douglas Farrow, McGill University
Edouard Cardinal Gagnon, President Emeritus, Pontifical Council on the Family
Christopher Gray, Concordia University, Montreal, Qc.
M. D. Khalid, Director, Islamic Society of North America
Janine Langan, University of Toronto
Thomas Langan, University of Toronto
François Lehmann, University of Montreal
Preston Manning, Massey College
Lois Mitchell, Canadian Baptist Ministries
Rabbi David Novak, University of Toronto
Archbishop Terrence Pendergast, S.J., Catholic Office for Life and the Family
Mark Petersen, R. L. Petersen Family Foundation
Darrel Reid, President of Focus on the Family Canada
Ruth Ross, Christian Legal Fellowship
Claude Ryan, retired politician and journalist, Montreal
Cathy Towtoongie, President of Nunavut Tunngavik Limited
John Vissers, President, Presbyterian College, Montreal
David Williams, McGill University
John Zucchi, McGill University
ACKNOWLEDGEMENT

"Statement on the Status of Marriage in Canada." Globe and Mail June 18, 2003.

For more information on current debates on the marriage question in Canada visit the Institute for the Study of Marriage, Law and Culture web site here.

The Institute for the Study of Marriage, Law, and Culture is a non-partisan Canadian association for research and study of current trends and developments in marriage and family.

THE AUTHORS

The principal authors for this document were Daniel Cere and Douglas Farrow. Daniel Cere is Director of the Newman Institute of Catholic Studies at McGill University and a contributing editor of The Newman Rambler. Douglas Farrow is Associate Professor of Christian Thought at McGill University in Montreal.


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