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Can Charter trump religion? Add to ...

Will Canada soon permit men to marry men, women to marry women?

The thought horrifies some and, on Monday, Justice Minister Martin Cauchon played it safe. He announced that Ottawa will appeal the July 12 decision of three Ontario Superior Court judges who ruled that restricting marriage to two people of the opposite sex violates gays' and lesbians' Charter right to equality.

"At present, there is no consensus, either from the courts or among Canadians, on whether or how the laws require change," Mr. Cauchon said. "The government believes it is the responsible course to seek further clarity on these issues."

Certainly, powerful interests oppose recognition of same-sex marriages. On July 19, Jacques Berthelet, president of the Canadian Conference of Catholic Bishops, wrote to the minister: "Please take whatever measures are necessary to respect the deeply held convictions of the majority of Canadians that marriage between a man and a woman is a unique institution that is deeply rooted in our history, culture and religious traditions."

Catholics make up almost half of Canada's population, but, in the past three decades, they've parted company with their church on issues involving sex. Michael Marzolini, chairman of the polling firm Pollara, reported last week the results of a survey on attitudes to gay marriage: Across Canada, 48 per cent supported such marriages, and 43 per cent were opposed. In Catholic Quebec, 55 per cent were in favour. Among those 18 to 34, support was at 61 per cent.

Before the Ontario court, it was the Attorney-General of Canada and various religious interests who argued to maintain the exclusion from marriage of same-sex couples.

A spokesman for the Roman Catholic position, Daniel Cere, director of McGill University's Newman Institute of Catholic Studies, said: "Catholic religious understanding does not recognize any authority on the part of the state to redefine the nature or the essential properties of marriage." A marriage could only be between a man and a woman, otherwise Catholics "will have a hard time recognizing a place for themselves in this legally redesigned landscape."

On behalf of Muslims, Abdalla Idris Ali, director of the Centre of Islamic Education in North America, also expressed alarm. "It would become harder for Muslims to participate in Canadian society if that society insisted on acceptance of unions that our religion teaches us are an affront to Allah."

The three judges weighed all the arguments and, in reasons for judgment that ran to 129 pages, concluded that marriage could no longer be defined primarily by the function of procreation. Equally important was public recognition of a union based on love, commitment, support and protection, which applied to same-sex couples as well as to heterosexuals. To exclude same-sex couples from marriage was discriminatory and unconstitutional.

Ultimately, Parliament will face this question: Is ours a society that separates church and state? Or will religious conceptions of marriage trump the Charter of Rights and Freedoms?

We have come a long way since the days of St. Augustine, who preached that sexual intercourse transmitted original sin, that intercourse could only be justified by the intention to have children, and that people who are sterile or too old to procreate must abstain from sex under penalty of mortal sin. In a pluralist, secular society, there is room for many conceptions of marriage -- even for gays. wjohnson@globeandmail.ca

 

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