There is more to the case for same-sex marriage than the technical version Prime Minister Paul Martin unveiled yesterday. He was right in what he said, but what he said was incomplete. There was too great a sense in his remarks of the courts forcing Parliament to accept same-sex marriage, and of his having a judicial gun at his back. "There is only one issue before the House in this debate," he said -- the question of whether rights that have already been granted under the Charter of Rights and Freedoms, by the lower courts, should be taken away. In fact, there are a few issues.
Yes, the Charter guarantees the right of equality, just as it protects freedom of religion. The Supreme Court of Canada ruled years ago that sexual orientation is one of the grounds protected by the equality section. In fact, in the 1995 Egan case, cited yesterday by Conservative Leader Stephen Harper, Mr. Justice Gerard La Forest helped establish that principle, noting that "sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs."
Mr. Harper did not raise the Egan case to argue for same-sex marriage. Quite the opposite. He did so to quote Judge La Forest's defence of the traditional definition of marriage. The "ultimate raison d'être" of marriage, the judge said, "is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage."
Mr. Harper implied that Judge La Forest was speaking for the majority in that case. In fact, he was speaking for only four of the nine judges. The question before the court was whether it was legal to deny a spousal allowance to a gay couple who had been living as a couple since 1948. Four of the other judges said the denial unreasonably violated the Charter. The ninth judge, Mr. Justice John Sopinka, agreed with the first four that the denial was legal, but he deliberately rejected Judge La Forest's reasons. Rather, he said that "equating same-sex couples with heterosexual spouses, either married or common-law, is still generally regarded as a novel concept," and he felt it best to defer to Parliament.
This, in microcosm, describes the debate on same-sex marriage. There are those who oppose a redefinition of marriage to include gay and lesbian couples. There are those who favour such a redefinition. And there are those who have been taken aback by the pace at which legal decisions on same-sex marriage have been issued over the past few years, and who are still coming to terms with the idea. It is to those people in particular, and to those MPs, that the Prime Minister should have directed his arguments.
He was right to emphasize that gay couples have a Charter right to equal treatment before the law -- in this case, the law that determines who is entitled to a civil marriage -- and that Parliament should not use the notwithstanding clause to override those rights. He was right to say that the decision whether to uphold the rights of a minority should not be decided in a referendum by the majority. He was right to dismiss the ornery idea (which he once toyed with) of getting rid of civil marriage entirely, and replacing it with civil unions for all, just to avoid letting in a group of Canadians who so keenly want to be married.
But beyond that, the extension of marriage to the one group of romantically and sexually attached couples who have so far been excluded is a matter of social justice and is in society's own interest. In linking marriage and procreation, Judge La Forest glossed entirely too easily over the facts that didn't suit his argument: that many heterosexuals marry with no intent of procreating; that many homosexuals have procreated in earlier attempts at heterosexual relationships, and have children to nurture; and that, through adoption or the insemination of a lesbian partner, many gay couples newly become loving parents.
It is in society's interest to promote stability among couples, whatever their sexual orientation, and to agree when they ask to undertake legal responsibilities to each other and to any families they have. It is in society's interest not to treat gays and lesbians as outsiders, but to share with them an important rite of passage that confers a distinct level of social standing and belonging within the broader community. As Mr. Martin noted, it is not good enough to say they can be sort-of married without using the word marriage. "Separate but equal is not equal."
Yet the Prime Minister had trouble going beyond the mechanics of the law to the people affected -- to the friends, neighbours and co-workers who are physically attracted to others of the same sex. He kept circling back to the question of rights, to the question of Charter obligations, and to the need to support the new bill because the courts have already made same-sex marriage legal for most Canadians.
There is a broader imperative, to extend society's deepest welcome to those sons and daughters whose "unchangeable" orientation is homosexual rather than het-erosexual. They have no less entitlement to a loving, stable marriage in which, if this is the course they choose, they can raise their children. The proposed bill acknowledges that reality.