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Enter Stage Gabbing

Federal government was wrong to vet same-sex marriage legislation

By Steven Martinovich

The Professor(December 13, 2004) As expected the Supreme Court last week gave the Canadian federal government's proposed same-sex marriage legislation its approval, paving the way for a redefinition of the institution. As early as January, Canada will join just two other nations -- Belgium and the Netherlands -- in the world in permitting same-sex marriage.

There is plenty in the decision to give Canadians pause, including the high court's assertion that the constitution is a living document, "a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life." As any traditionalist would argue, if the constitution means whatever a court wants it to mean in the context of a certain period of time, it stops meaning anything at all.

A good example is the decision itself. The Charter bars discrimination on a clear cut list of criteria, specifically race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. It fails to mention sexual orientation whether by omission or design -- the later if you believed Jean Chrétien in 1982. The Charter, as with any law, must be narrowly interpreted, that is it cannot be viewed to contain meanings that aren't expressly included. That is meant to protect both its original intent and those who are to be judged by it.

The most troublesome aspect of the decision, however, is that it occurred at all. The Supreme Court has broken new ground in essentially approving a massive societal change without the benefit of final legislation to judge -- though it's unlikely it will substantially change in January. When our parliamentarians finally vote on this legislation, they will be rubberstamping a decision by the Supreme Court, not the other way around. What's the point of Parliament if not to hash out legislation that a high court may eventually throw out, but at least has been approved by the representatives of the people?

"If a judge makes law, then that judge is a judicial activist who engaged in judicial activism. If a judge implements the law as enacted by the legislature, then that judge is doing their job," wrote lawyer Vincent Tassinari a few years ago in a study of American judicial activism. If you accept that view of how a judiciary should function then it's clear the federal government made a mistake in vetting the legislation. Whether or not a court performs a beneficial service with their activist decisions, it is Canadians through their elected representatives should be making law, not a separate, unelected and unequal class of government appointees.

Unfortunately partisans on other side of the debate will ignore these issues in favour of either protecting the traditional definition or expanding it. To do so, however, ignores the larger issue of the disenfranchisement of our elected representatives. Since the government can count on the present legislation to be approved by the Supreme Court in the now unlikely event it is challenged, it means tremendous pressure will be placed on MPs to accept it as it stands. The federal government may write the legislation but in this case approval by parliamentarians will be pro forma.

The blame for this can be laid at the feet of the Chrétien and Martin governments, both of which have relied on the Supreme Court to decide contentious issues. Fearing negative publicity, they instead hand a hot potato off to the courts and then claim that the resulting decision -– whether they agree with it or not -– wasn't theirs.

Good luck to those same-sex couples whose unions will eventually have the official stamp of government approval. Marriage is a difficult institution to sustain no matter the makeup of the couple. Unfortunately another institution, our Parliament and its ultimate role in deciding social issues, had to take a hit for their dream to become reality. Eventually we'll all find out whether the sacrifice was worth it.

Thanks for reading,

Steven Martinovich


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