In its starkest terms, the real question underlying the debate over same-sex marriage is whether the will of Canadians can be allowed to prevail over the rights of Canadians.
Are there circumstances in which that could legitimately occur? Most Canadians intuitively agree that, when our governments are able to justify restricting rights in the name of freedom and respect for the basic equality of all members of society, they have acted legitimately. But when laws are made with utter indifference to basic rights and freedoms, democracy's reckless side is exposed.
Even those who oppose same-sex marriage understand that the "traditional" definition of marriage infringes on the equality rights of many members of society. As the debate over Bill C-38 (the Civil Marriage Act) unfolds, there can be no question that Canadians will have to line up behind either the new legislation or Section 33, the infamous notwithstanding clause, which permits Parliament and the provinces to suspend the operation of the Charter of Rights and Freedoms, thereby insulating that legislation from Charter scrutiny.
I believe that Canadians will find this second path to be repugnant and that they will reject it.
There is an honourable basis on which opponents of same-sex marriage can support Bill C-38 in good conscience. The choice is not between "traditional marriage" and some more inclusive institution; it is between the willingness of Canadians to prefer their democracy over their basic rights and freedoms. The choice is between conditional majority rule and provisional rights and freedoms.
I believe that, when the stakes are clearly explained, most people will opt for a democracy that is required to demonstrably justify any provisional restriction on rights and freedoms, and that they will reject as morally unpalatable any legislative expression of the popular will whose legitimacy is predicated on a total disregard for the basic test of whether such will infringes on rights and of whether the infringement is defensible in the name of a society that calls itself "free" and "democratic."
A true constitutional democracy reflects the confidence and maturity of a people genuinely committed to liberalism's cardinal virtues: pluralism, liberty and equality. While democracy as a process and ordering principle is certainly integral to modern conceptions of a just society, it is so only to the extent that it serves those cardinal virtues and not when it threatens or undermines them. Intuitively, Canadians know this.
The appeal courts in a number of provinces have already held that marriage legally prescribed as being restricted to opposite-sex partners offends the equality provisions of the Charter and that it is not saved under Section 1 - i.e., it is not a demonstrably justified reasonable limit on the exercise of basic rights and freedoms in a manner consistent with the essential principles of a "free and democratic society." This means that the "traditional" definition of marriage cannot be the law of the land unless it is under cover of the notwithstanding clause.
Prime Minister Paul Martin and Justice Minister Irwin Cotler have said they would refuse to invoke the notwithstanding clause. Mr. Cotler has often said that the advent of the Charter heralded a revolutionary change from parliamentary to constitutional democracy. Mr. Martin and Mr. Cotler are now rightly governing as if we lived in a full constitutional democracy. And although the Constitution still technically permits our legislatures to resort to the notwithstanding clause, such resort has no place in a democracy in which the legislators can never be above the supreme law of the land.
Section 1 of the Charter is where democracy finds its highest expression in our Constitution, not in Section 33, which allows the people's representatives to override the Charter altogether. It is through Section 1 that we acknowledge our government's power over the scope of our liberties, but only in circumstances in which that power ultimately respects and preserves those liberties. Section 1 expresses our capacity for mature, reasoned and legitimate democracy. Section 33 admits of a more capricious form of mob rule, of a democracy that gave McCarthyism to America and that marked the 20th century as one of the blackest periods in the history of "democratic government."
Some opponents of the proposed legislation blame the inconvenience of a supreme constitution on judicial activism gone wild. But even they must acknowledge the salutary effects of ensuring that all laws, even the most unpopular ones, are passed with due regard for the Constitution. Conservative Leader Stephen Harper himself has paid lip service to the principle that legitimate marriage laws ought to be able to withstand Charter scrutiny.
As for the notwithstanding clause, it should simply go. But if the country does not yet have the appetite for more constitutional bargaining, then our leaders must behave, as the government is rightly doing, as if that temptress of democratic excess - Section 33 - had already been repealed. Bill C-38 should be passed into law. If it does not, the ensuing debate will be about whether we want to have a true "constitutional democracy."
Peter Biro is a partner in the Toronto law firm Goodman and Carr LLP.