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By Carman Bradley
 

For millenniums the definition of marriage has been rooted in a heterosexist worldview.  Indeed, tolerance of homosexuality Implies a heterosexist worldview.  Now the Supreme Court has ruled the meaning of marriage can be changed and the Government has decided to do so.  What neither the Supreme Court nor the Government has told Canadians is that the state’s worldview must be changed along with marriage redefinition.
 

“Tolerance” has its origin in the Latin “tolerare,” meaning “to endure.”  The machinist works within tolerance from design and the doctor speaks of toleranceto pain.  The state associates tolerance with rights given or patience shown to opinions and practices that may be less than exemplary or in minority.  In 1969, the Canadian Government declared a new level of tolerance towards homosexuals when private sexual acts were decriminalized.  The release of George Klippert, jailed for gross indecency, typified the genesis of what the state said would be a “private bedroom” space for gay or lesbian sexual intimacy.  Just two years before, Justice Minister Pierre Elliott Trudeau described this new level of tolerance:
 

Take this thing on homosexuality.  I think the view we take here is that there’s no place for the state in the bedrooms of the nation.  I think what’s done in private between adults doesn’t concern the criminal code.  When it becomes public this is a different matter, or when it relates to minors this is a different matter…
 

The new Houghton Mifflin Reader’s Companion to U.S Women’s History contains an entry by E. Kay Trimberger which gives the feminist perspective on the need for the homosexual liberation era that followed: “Sexuality is not private, but is political and related to power. ‘Compulsory sexuality’ is part of a power structure benefiting heterosexual males at the expense of women and homosexuals.  The inequity is justified by an ideology that sees heterosexuality as natural, universal, and biologically necessary, and homosexuality as the opposite.”[i]  In the same entry Trimberger further asserts “if our sexuality is socially constructed it can also be de- and re-constructed.”  Here reconstruction is a euphemism for the assault on heterosexist institutions of family and marriage.     
 

Just as law defines the traditional family, so changing the law can deconstruct it.  Jodi Freeman, an activist who helped develop EGALE’s[ii] factum in the ground-breaking gay rights case, Mossup, has written that “rights litigation can be a useful tool in the pursuit of social change, as part of a broader strategy.”[iii]   In 1990, Didi Herman, Canada’s most published gay rights lawyer described the assault on heterosexist governance in stronger terms: “law reform is part of an ideological battle, and fighting over the meanings of marriage and family constitutes resistance to heterosexual hegemony.”[iv]  According to F.L. Morton and Rainer Knopff, deconstructing the heterosexist basis of Canadian governance had at least one huge obstacle – ironically, is was the very Charter which same-sex proponents now claim as the basis for their marriage right.  In The Charter Revolution & The Court Party, Morton and Knopff write: “To use the Charter as part of such an ideological battle, gay and lesbian activists had first to overcome the intentional omission of sexual orientation from the list of prohibited grounds of discrimination in section 15 of the Charter.  They thus began publishing articles advocating that it be added by way of judicial interpretation.”[v]  According to Didi Herman, this publishing strategy aimed to supply “the appropriate argument for lesbian and gay litigants to make.”[vi]  David Raymond Greener conducted a study of 22 law review articles discussing the definition of family, all published since the 1982 Charter.  While the broader literature revealed a lively debate about the merits of the family, including defenses of the traditional family, the law journal articles were “uniformly critical of ‘familial ideology’…[especially] the ‘traditional family,” which was portrayed as “the ideological centerpiece of heterosexual supremacy.”[vii]  Morton and Rainer note: “The only serious disagreement in this literature was whether to seek a partial deconstruction of the heterosexual definition of family so as to allow homosexual marriage, or to pursue ‘a more radical deconstruction that aims to abolish any meaningful distinction between family and non-family.’”[viii]  According to Jody Freeman, “recognizing marriage between gay men or lesbians would revolutionize its meaning.”[ix]
 

Choosing the judicial system as the battle ground, human rights as the claimed grievance and sympathetic judiciary as allies has been the strategy to deconstruct heterosexism and overcome majority resistance.   In just two decades, the Supreme Court has taken the Charter, which said nothing about “sexual orientation” when ratified in 1982 (in spite of gay rights lobby), and by a characteristically elitist and undemocratic process of judicial rulings, has read homosexual rights into the Charter.  At the 1998 International Human Rights Commission, Justice Rosalie Abella, described the allied ideological battle: “…unlike civil liberties, which re-arranges no social relationships and only protects our political ones, human rights is a direct assault on the status quo.  It is inherently about change.”[x]  Here the “status quo” is “heterosexism” and the “assault” is on “marriage” and “family.”  F.L. Morton and Rainer Knopff have called the unprecedented levels of ideological advocacy and politically proactive behavior by the Supreme Court the “Charter Revolution.”[xi]  The goals of the Charter Revolution have moved well beyond private, public and workplace security and equal monetary tax benefits for gays and lesbians.  The homosexist constitutional sweep must leave no distinct heterosexual space - no privileged heterosexual institutions, no tolerance for the heterosexist point-of-view.  And Prime Minister Martin declares this paradigm of total indifference when he insists that parity is not enough, only “sameness” before the state will suffice.   In February 2005, Prime Minister Martin said in a speech on Bill C-38 (The Civil Marriage Act) before the House:
 

…some have counseled the government to extend to gays and lesbians the right to ‘civil union.’  This would give same-sex couples many of the rights of a wedded couple, but their relationships would not legally be considered marriage.  In other words, they would be equal, but not quite as equal as the rest of Canadians.  Mr. Speaker, the courts have clearly and consistently ruled that this option would offend the equality provisions of the Charter.  For instance, the British Columbia Court of Appeal stated that, and I quote: ‘Marriage is the only road to true equality for same-sex couples.  Any other form of recognition of same-sex relationships ...falls short of true equality.
 

Actually, the courts have not been consistent on the need for “sameness.”  In the McCloskey verdict (in BC), Judge Ian H. Pitfield concluded that marital discrimination against same-sex couples is justified.  He wrote in the ruling: “The objective of limiting marriage to opposite sex couples is sufficiently important to warrant infringing on the rights of the petitioners.  The gain to society from the preservation of the deep-rooted and fundamental legal institution of opposite-sex marriage outweighs the detrimental effect of the law on the petitioners.”  He went on to say that equality rights can be overridden by Section 1 of the Canadian Charter.  Judge Pitfield dismissed other arguments, ruling that, for same-sex couples, the freedoms of expression or association, as well as mobility rights and rights of liberty and security are not infringed by the ban on marriage.[xii]
 

Tragically, for the heterosexual majority (likely 97 percent of voters, although not all are against redefining marriage), there now appears to be no democratic way to stop the imposition of homosexism over our state.  For those who might claim the governing Liberals have duly represented Canadians, while holding onto to power through Belinda Stronach’s single defecting vote, a brief review of the facts tells a different story.  A key outcome of the framing of the same-sex marriage decision as the choice between two exclusive and conflicting worldviews is the clarity this brings to the dilemma for the centrist Liberal Party.  Faced with no plausible middle position, i.e. some mix of homosexists ideals and heterosexist tenets, the Liberals have been caught between social conservatives on the right - staunchly heterosexist - and socialists on the left - resolutely homosexist.   The result being, the Liberal Party’s position has flip-flopped between right and left.  Once the Liberal Government decided to support marriage redefinition the Government’s strategy became one of escaping accountability for the unpopular left of center policy by arguing that upholding the Charter gives them no alternative.  The Liberal button - “It’s the Charter Stupid!” - declares the centerpiece of the Liberal pro-same-sex marriage argument.  Tragically, such “rights-based” propaganda has worked well manipulating public debate by emotion.  This “who could be against human rights” strategy is intuitively appealing and has had the effect of deflecting serious engagement of the issues.  For example, neither the Liberals nor the Supreme Court have been forthright enough to admit that marriage redefinition, on the basis of a human rights sexual orientation argument, must inevitably lead to bisexual marriage access.   The fact bisexual marriage is not on the present legislative agenda is itself proof that marriage redefinition is not a human rights issue, but an issue of political power.  The reality that the Charter, when democratically ratified by all provinces and the federal government, said nothing about homosexuality and the fact that a Liberal majority Parliament, in June 1999, ratified the traditional definition of marriage by 216-55 votes are now out of sight.  Moreover, the reality that the Supreme Court reference did not rule the current definition of marriage unconstitutional has been disguised.   The button’s intended “self-evident” proclamation also flies in the face of the 35 Liberals who did not vote for same-sex marriage and the reality that Prime Minister Martin had to order his 39 cabinet ministers to vote for same-sex marriage regardless of the majority wish of their constituents.
 

Indeed, the slim circumstances under which the Liberals flip-flopped to a pro-same-sex marriage stance was made clear in May 2004, when former Justice Minister Martin Cauchon, gave a speech before a US homosexual organization in Philadelphia. Equality Forum honored him on the occasion with an award for his pro-homosexual position.  In his speech Mr. Cauchon admitted that only four individuals in Ottawa were instrumental in reversing Liberal same-sex marriage policy - himself, Paul Genest (policy advisor to PM), Alex Himelfarb (Clerk of the Privy Council) and Morris Rosenburg (Deputy Minister of Justice).[xiii]  Before reading the underlining basis for Mr. Cauchon’s desire to redefine marriage, ask yourself: (1) Is it possible to stamp out “homophobia” without first getting rid of “heterosexism”? (2) Is it possible to wipeout “heterosexism” without first eradicating the influence of orthodox religion?  Mr. Cauchon said: “When I started traveling across the country talking about same-sex marriage, I faced a lot of opposition of course.  When I was talking to people, trying to understand why they were opposed, I've realized that there is no valid reason to oppose, and I've realized that, sadly, there is a lot of homophobia.  In my society there is no place at all for homophobia.  And that is why I decided to proceed in making sure we put in place in Canada, and if we can around the world, a just society based on equality.  Sadly enough homophobia exists still in Canada, and in other countries around the world.”[xiv] Mr. Cauchon also related that Mr. Genest heavily lobbied former Prime Minister Chrétien on a daily basis to get his support for same-sex marriage.  Once he got Mr. Chrétien on side, everything fell into place since Mr. Chrétien ruled as a semi-dictator over his Caucus and obedient Cabinet.[xv]
 

Besides himself, Mr. Cauchon singled out the work of Paul Genest, who was policy advisor to former Prime Minister Chrétien, who, according to Mr. Cauchon, played "a key role" in the same-sex marriage question.  He and Mr. Genest met on a daily basis to talk about how he should manage the approach and the strategy on the same-sex marriage issue.[xvi]  And in June 2003, Prime Minister Chrétien announced he would not be appealing lower court rulings even though marriage law is a federal jurisdiction and the lower courts were in effect defying state governance; rather the Liberal Government asked the Supreme Court to make one more “read-in” ruling on what the Charter had to say about same-sex marriage.  In effect, this process took the polarized and sensitive matter out of the political and democratic realm and placed the onus for a decision into the hands of the judges, a majority of whom turn out to have held opinions similar to Justice Rosalie Abella.  Prime Minister Chrétien gave his articulation of the same-sex marriage issue on August 19, 2003, before a divided Liberal caucus in North Bay.  He said:
 

Circumstances demand that we deal with the issue now because of very recent court decisions based on the Charter of Rights.  The Canadian Alliance has attacked the courts for years.  They attack so-called judicial activism.  It is code for their profound opposition to the Charter of Rights.  A Charter that was passed by Parliament and that Liberals and all Canadians respect and cherish.  So let us not fall into their trap on this issue.  This is not about weakening Parliament.  It is not about weakening traditional religion.  It is not about weakening the Canadian social fabric.  In fact, it is about giving Parliament its rightful voice.  It is about protecting religious traditions and rites.  It is about giving force and effect to Canadian values. Values of mutual respect, justice and equality.  All of us understand that Parliament must always act in accordance with the Constitution.  In the case of same-sex couples, we need to be guided by how court after court has been interpreting the Charter of Rights.  And the courts have been telling us that the notion of separate but equal has no place in Canada.[xvii]
 

Morton and Knopff have given a name to the coalition of judges and special interest groups promoting judicial authority over democratic authority, they call the alliance the “Court Party.”  They declare on the matter of “judicial activism”:
 

How did an institution that for more than a century occupied an important but secondary role in our political system suddenly become such a pivotal player?  Most commentators attribute this institutional and political revolution to the 1982 entrenchment of the Canadian Charter of Rights and Freedoms.  While there is more than a grain of truth to this explanation, it is, on its own, overly legalistic.  Parchment barriers do not cause revolutions; leaders, elite cadres, and their supporters do.  Judges themselves are the most prominent leaders of the Charter Revolution.  The judges deny this, claiming that they do only what they are mandated to do by the constitutional documents.  Nonsense!  More often than not they make up the law as they go along…Judges did not - could not – make the Charter revolution alone.  At every turn their innovations have been promoted and supported by a coalition of societal interests that strategically straddle the state-society divide.  Despite important differences, these groups share a common interest in enhancing judicial power.  Accordingly, we call this coalition the Court Party…[xviii]
 

On June 26, 2003, the Ontario Law Society sponsored a panel (“Court Party” reunion) consisting of the lawyers who had successfully argued for same-sex marriages in the Ontario courts.  Attending this panel and the reception afterwards were invited guests including the judges who decided in favour of same-sex marriage and representatives of homosexual advocacy groups, plus organizations offering services for homosexuals and lesbians as well as representatives from all three levels of government.  On the lower court level, Mr. Justice Harry LaForme, who wrote the majority decision in support of same-sex marriage, was present.  At the reception, Chief Justice McMurtry thanked Madam Justice Claire L'Heureux Dubé for her excellent work on homosexual rights.  He stated: “Claire L'Heureux Dubé advocated gay rights in Mossop and added dignity to equality in Egan.  I would like to refer, briefly, to her dissent in Mossop, in 1993, ten years ago. I think her dissenting opinion can be said to be reflected in our recent same-sex marriage decision in the Ontario Court of Appeal.”  In her response, Madam Justice L'Heureux Dubé said:“… courts have been at the forefront of this [homosexual] evolution not to say revolution. It's fascinating that the courts played a unique role…It is not me you should celebrate.  It is the Chief Justice [McMurtry], and Gillese and MacPherson that have made history… the Ontario Court of Appeal handed out, I am told, as I have not read it yet, one of the most perfect decisions on an issue which was difficult. It took a lot of courage… Canadian law owes them a great deal.”[xix]
 

At the same Ontario Law Society event, Cynthia Peterson, lawyer in the Ontario case, said of the Liberal same-sex marriage strategy:
 

The reference [to the Supreme Court of Canada] in my view is a political necessity, not a legal one.  The government decided not to appeal the decisions, which I commend them for, but we know even within the governing party, there isn't unanimous support for that decision.  So there is a lot of political pressure on the government....The reference is to get the approval of the Supreme Court of Canada, so that when it goes to the House for a free vote ... they can say that the Supreme Court has said that religious freedoms will be protected.  There is a real political value in that...the other political value is in the Alberta situation...we know the government there is doing everything possible to prevent same-sex marriages.  But if we can get assistance from the Supreme Court of Canada in the reference to either pre-empt the battle altogether or use it to ensure uniformity across the country, then I think there will be real value there as well ... I'm pretty confident that this is more a political necessity than a legal one and that it will not in any way undo any of the legal victories that we've won.[xxi]
 

And how did the Court Party act out its proverbial finest hour?  In making their December 2004 judgment, the Supreme Court decided that neither the Constitution Act of 1867, nor the current Charter, entrenches the definition of “marriage” as heterosexual.  The Court said, “The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”[xxii] Although the Supreme Court ruled that Parliament has exclusive authority “respecting certain aspects of legal capacity for marriage,” and that “the word ‘marriage’ does not exclude same-sex marriage,” the Court refused to answer the Government’s Question #4 - “Is the traditional definition of marriage consistent with the Charter?”  Paradoxically, the Court defended its decision in part because of the decisions taken by five lower (provincial) courts to overturn the (federal) marriage law.  In this “Catch 22” dynamic, the Court joined with the Liberal Government in asserting that the same-sex litigants in these rulings “have relied upon the finality of the [provincial] decisions and have acquired rights which are entitled to be protected.” Alberta’s position was largely ignored.  The Supreme Court chose not to answer Question #4 because a response of “no”“throw the [proposed] law into confusion ” and “the lower courts’ decisions in the matters giving rise to this reference are binding in their respective provinces.”  The Supreme Court concluded, “These circumstances, weighted against the hypothetical benefit Parliament might derive from an answer, indicate the Court should decline to answer.”  In the end, the Supreme Court chose not to take the Court Party “dance” to its ideological conclusion by ordering Parliament to redefine marriage.  Rather than be the historic scapegoat in this pivotal matter, the Court returned the “redefinition decision” to Parliament, ruling that the state can either “retain” or “change” the definition, as long as same-sex “union” is addressed.  Their ruling caused so much interpretive confusion, that the Liberals continued to claim the Charter demands same-sex marriage and the Conservatives took the opposite view.  Henceforth, the Liberals argued that only the notwithstanding clause could stop same-sex marriage.  After the June 2005 vote in favour of same-sex marriage, Justice Minister Irwin Cotler reiterated the Government’s strategy:  “Where a law has been found to be unconstitutional, the only options open to Parliament are to either remedy the unconstitutionality - which is what we are doing with Bill C-38 - or to overrule that court decision by invoking the notwithstanding clause."[xxiii]   The impact of the legal precedence behind this single sentence for the future governance of society is titanic.  The state has in effect declared Canadian governance to be founded upon a homosexist model, protected by a constitution that is an evolving “living tree” rooted uniquely in the minds of nine Supreme Court justices, and only the use of the notwithstanding clause can override their interpretations.  Only the notwithstanding clause can prevent the imposition of the homosexist worldview upon Canadian society.
 

In his speech before the House, on February 16, 2005, Prime Minister Martin literally declared that the democratic will of Canadians can and will be thwarted.  Our Constitution, according to him is there to impose homosexism upon Canadian society.  He said:
 

The second argument ventured by opponents of the bill is that government ought to hold a national referendum on this issue. I reject this – not out of a disregard for the view of the people, but because it offends the very purpose of the Charter. The Charter was enshrined to ensure that the rights of minorities are not subjected, are never subjected, to the will of the majority. The rights of Canadians who belong to a minority group must always be protected by virtue of their status as citizens, regardless of their numbers. These rights must never be left vulnerable to the impulses of the majority.  We embrace freedom and equality in theory, Mr. Speaker.  We must also embrace them in fact.[xxiv]  [my underline – three millenniums of traditional marriage is hardly an impulse, homosexists are the ones on the offensive, heterosexism is what’s under assault]
 

Claiming to “square the circle” in the zero-sum same-sex marriage decision, Mr. Martin declares: “This bill protects minority rights.  This bill affirms the Charter guarantee of religious freedom.  It is that straightforward, Mr. Speaker, and it is that important.”[xxv]
 

What is straightforward is the unavoidable collision of heterosexist and homosexist worldviews, homosexual rights and religious freedoms.  In its ruling on same-sex marriage, the Supreme Court addressed the “allegation” that redefinition of marriage would create what has been labeled a “collision of rights.”  In facing this charge, the Court Party further demonstrated its willingness to “dance.”  In declining to respond to the Government’s Question #4, the Supreme Court defended its position by asserting “the federal government has stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion on this matter.” Yet in its dismissal of the “allegation” of a “collision of rights,” the Court argued, “The Proposed Act has not been passed, much less implemented.  Therefore, the alleged collision of rights is purely abstract…Charter decisions should not and must not be made in a factual vacuum.”  This argument also contradicts the Court’s interpretation that same-sex litigants in lower court rulings “have relied upon the finality of the decisions and have acquired rights which are entitled to be protected.”  These irrationalities aside, the Supreme Court in its ruling referred to the Canadian values of “tolerance, respect and equality.”  Given these noble tenets, it is ironic that redefinition of marriage will symbolize the full shift from “toleration and equality” laws to “indifference and sameness” rulings.  And in its pursuit of indifference and sameness in governance, the state has chosen homosexual lifestyle advocacy over “respect” for established marriage values, traditional family values and orthodox religious values.  Thus far only a few thousand homosexual couples have registered for same-sex marriage.  As a percent of all couples, this number amounts to 0.015 percent.  Tyranny of the majority by the minority is not mutual tolerance, is not mutual equality and is not mutual respect. 

 
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