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去非
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Posted -
2003/9/5 下午 05:30:55
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Ruling by the Ontario Court of Appeal:
(http://www.religioustolerance.org/hom_marb7.htm#oca)
The Ontario Court of Appeal delivered their ruling on 2003-JUN-10. It is Docket number C39172 and C39174. The full text of the decision is available online. 1 The court only took six weeks to complete their decision. This is unusually fast for a major constitutional case. As almost everyone expected, the court upheld the lower court's unanimous decision and unanimously ruled in favor of the plaintiffs. The court found that the present marriage acts offends the dignity of all gays and lesbians, discriminates on the basis of sexual orientation, and violates their equality rights under the Charter of Rights and Freedoms -- Canada's constitution. The court changed the definition of marriage in the province from being "the voluntary union for life of one man and one woman" to "the voluntary union for life of two persons to the exclusion of all others." Same-sex marriage then became available for the first time the western hemisphere, but only in the Province of Ontario. Presumably, the Canadian federal government is still under a court order to make same-sex marriage available in some form across Canada by 2004-JUL.
The three judges wrote their 60 page decision collectively. A key section stated that:
"A person's sense of dignity and self worth can only be enhanced by the recognition that society gives to marriage and denying people in same-sex relationships access to that most basic of institution violates their dignity."
"The ability to marry, and to thereby participate in this fundamental societal institution, is something that most Canadians take for granted. Same-sex couples do not; they are denied access to this institution simply on the basis of their sexual orientation."
"Preventing same-sex couples from marrying perpetuates the view that they are not capable of forming loving and lasting relationships and not worthy of the same respect and recognition as heterosexual couples." 2
Elsewhere in their ruling, they wrote:
"A purpose that demeans the dignity of same-sex couples is contrary to the values of a free and democratic society and cannot be pressing and substantial....Same -sex couples are capable of forming long, lasting, loving and intimate relationships. A law that prohibits same-sex couples from marrying does not accord with the needs, capacities and circumstances of same-sex couples." 2
The court rejected all of the federal government's arguments, saying that they were filled with irrelevancies, stereotypes and "circular reasoning." They said that it doesn't matter who originally invented marriage. What does matter is how gays and lesbians fare now, under a legal regime that excludes them from the institution.
The court ordered the Province of Ontario to register the two marriage certificates issued to Elaine & Anne Vautour and to Kevin Bourassa and Joe Varnell. These were the plaintiffs in the case -- the two couples who were married in a double ceremony at Toronto's Metropolitan Community Church in 2001-JAN. They have thus became the first same-sex couples to be legally married in the world, even though the registration process took about 30 months to achieve. (Same-sex marriages only became available in the Netherlands on 2001-APR-1; and in Belgium on 2003-JAN-30.)
The court ordered the clerk of the City of Toronto to issue marriage licenses to Michael Leshner and Michael Stark, and to six other couples whose license applications had been stalled pending the outcome of the appeal.
The Province of Ontario started to modify their marriage license and registration forms. They will delete the words "bride" and "groom," and substitute the gender-neutral term "spouse."
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去非
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Posted -
2003/9/5 下午 05:36:30
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The New Game of Charter Politics
Ted Morton, National Post
Thursday, September 04, 2003
It is astonishing how otherwise sane commentators go off the tracks when the subject of homosexual marriage comes up. I am referring to the otherwise dependable views of Andrew Coyne and Michael Bliss.
Last week Professor Bliss warned that it would be wrong to have a referendum on human rights. Assuming, for the moment, that he is right, since when was homosexual marriage a human right? Is it listed in the U.S. Bill of Rights? The 1948 United Nations Declaration of Human Rights? The European Declaration of Human Rights and Freedoms? The 1982 Canadian Charter of Rights and Freedoms? The Meech Lake (1987) or Charlottetown (1992) Accords? Is it a recognized right in any Western democracies other than Holland and Belgium? How about the other 160 odd countries in the world?
The answer to all of the above is no, no and no. In Canada, the idea that homosexual marriage is a right is a judge-made affair from start to finish. Even this is new, since the Supreme Court of Canada's 1999 homosexual rights ruling -- M v. H, in which it extended common law spousal rights to homosexual couples -- explicitly declared that it did not affect or address the issue of marriage.
So how did homosexual marriage suddenly become a human right? Because its advocates say it is. This is the new game of Charter politics: Take your favourite policy issue, dress it up as a human right, and take it to court -- preferably with taxpayers' money from the federal Court Challenges Program. Not only has this trivialized the whole notion of rights (is there anything left that isn't a right?), but it has also dealt a severe blow to democracy. The moment something is declared a fundamental human right, any opposition to it is stigmatized. Democratic debate is at an end -- as evidenced by Prof. Bliss's opposition to a public referendum.
Mr. Coyne deserves credit for not falling for the claim that majorities cannot vote on the rights of minorities. As he correctly observes, this happens in democratic legislatures all the time: Every law ever passed denies or restricts someone's rights.
But Mr. Coyne finds a different justification for denying Canadians the
right to approve or disapprove homosexual marriage. While democratic majorities can make laws, Mr. Coyne writes, they cannot break the law. And the new law is that homosexual marriage is a legal right. Why? Because the judges say it is.
Ask yourself the following question: Can the judges misinterpret the Charter? Mr. Coyne evidently believes they cannot. The Charter means what the judges say it means. But if this were the case, then our judges have ceased to be mere mortals, and have achieved god-like infallibility!
Alas, the concept of judicial infallibility is contrary to both common sense and history. (The U.S. Supreme Court once ruled that African slaves were not human beings; the Canadian Supreme Court that women were not persons.) As a former chief justice of the United States dryly observed, the judges are not final because they are infallible. They are infallible because they are final.
But that is under the U.S. Constitution. In Canada they are not final. The Framers of the Canadian Charter understood that judges are not infallible, that they can misinterpret the Constitution, and so they put in Section 33, the notwithstanding clause. This power allows a government to override a judicial interpretation of the Charter that is deemed wrong. (As a check on this check, they also added a mandatory five-year sunset clause, putting the burden of proof on the government to defend its use of the override power in the next election.) In short, the Framers of the Charter refused to give judges a monopoly on Charter interpretation.
Now Mr. Coyne acknowledges this democratic check on the judges, but says he does not like it. "The Clause is an abomination," he writes. "It empties the Charter of any meaning." But this can only be true if you believe in judicial infallibility.
Besides, Section 33 is as much a part of the Charter as the Section 15 equality rights. Indeed, there would be no Charter without it. Seven of the 10 provinces only accepted adding Pierre Trudeau's Charter to our Constitution on the condition that it include the notwithstanding clause. (An eighth, Quebec, did not accept it even on these terms.) To date, the clause has been invoked 16 times by provincial and territorial governments. The Supreme Court itself -- in the Vriend case, one of its earlier homosexual rights rulings -- has declared that legislative use of the notwithstanding clause is part and parcel of what it calls the "Charter dialogue" between courts and legislatures.
In sum, using the Section 33 notwithstanding power is a perfectly legitimate response to the courts' usurpation of the legislative responsibility to make laws -- in this case, the law of marriage. This is especially true for homosexual marriage, as the courts have added new meaning to the Charter that was explicitly rejected when the Charter was being written.
If governments are reluctant to invoke Section 33 unilaterally, then put it to a referendum. In effect, the courts are trying to amend the original meaning of the Constitution. Two provinces -- British Columbia and Alberta -- already require referendums to approve new amendments to the Constitution. Why shouldn't the same approach be used to approve -- or disapprove -- judge-made amendments to the Constitution?
Critics of Section 33 say that we cannot trust politicians to act as a check on the courts. Fine, if that's the case, give the decision to the people. Legitimize the use of the notwithstanding clause by democratizing it. It we cannot trust politicians, surely we can trust the Canadian people.
Or can we? If this were true, why are the advocates of homosexual marriage always in the courts? Isn't the whole unspoken premise of this affair that the Canadian people cannot be trusted to decide such issues? Unspoken, because it is too devastating to admit publicly.
Ted Morton teaches constitutional law and politics at the University of Calgary. His proposal to democratize the notwithstanding power may be read on line in the August edition of Fraser Forum (www.fraserinstitute.ca).
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去非
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Posted -
2003/9/6 下午 04:24:45
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No, everything is all about me!
John Robson
The Ottawa Citizen - August 6, 2003
If I were to style myself a columnist while never writing a column, my claim would be derided. Especially in payroll. But people seem free to say they're Roman Catholics without following that silly old Pope. Our newspaper must be behind the times.
Paul Martin** isn't. He just said "I am a practising Catholic and I have responsibilities as a legislator and those responsibilities must take in a wider perspective." If you suddenly realize your religion is too narrow I sympathize. But shouldn't you logically seek a broader one?
As Father Raymond J. De Souza just said, the essence of the recent Vatican message on politicians and gay marriage is: "You can't believe two contradictory things at the same time." You can't believe the Pope babbles nonsense and presides over a hateful, outdated institution and that you are a Catholic (the capital "C" indicating Roman Catholic, as usual).
You can believe either or, like myself, neither. (Though I myself find many of the Church's teachings persuasive and others interesting, I do not assent to the entire Creed so I do not call myself a Catholic, go to their churches or take their communion.) But there is a moral obligation not to believe both because they can't both be true. Or rather, there once was.
Part of the modern creed is that one can, indeed, believe contradictory things if one feels like it. One can do anything one feels like. I have previously cited the joke about the guy who sees a nude woman in every ink blot but, when his psychiatrist suggests he's sexually obsessed, says "Hey, doc, you're the one showing all the dirty pictures." We live in an era devoted to the Rabelesian motto "Do what thou wilt" and, it seems, we see it in every ink blot.
For instance that kid whose parents sued a judo federation because they thought bowing on entering the dojo was idolatrous. In days of yore you could take judo or not, but couldn't insist on taking the judo where they don't bow because there wasn't one. Similarly, you could stick bits of metal through your face or not, but couldn't insist on the right to "express yourself" by mutilating your clothes and person then take umbrage when some prospective employer reacted to the obvious message with ye horror. Not any more.
The United States Supreme Court even found "Do what thou wilt" in the unlikely venue of the United States Constitution. In Casey v. Pennsylvania, a 1992 ruling that would have startled George Washington and scared John Adams, it said, "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This passage was recently castigated by Justice Antonin Scalia as "the passage that ate the rule of law." I agree. But see it wanted to eat the rule of law and so...
That line of reasoning has a hearty appetite on this side of the border as well. The Globe and Mail just editorialized that "the Vatican's insistence that politicians put their religion first in determining public policy on the question is beyond the pale. It is an unacceptable proposition outside a theocracy. It's certainly a non-starter in Canada ..." We all want politicians to follow their consciences not the polls. But is it obvious that the conscience itself should invariably say only "Do what thou wilt"?
It is true, and commendably, that in Canada no one is obliged to belong to any church against their will nor to support any church financially. But the Catholic hierarchy still seem to think that although you can join their church or not, they have the right to define the conditions of membership.
This opinion is so incongruous today that when Calgary's bishop Fred Henry said the prime minister was endangering his soul over gay marriage, one gay activist said "I think the bishop has eaten too much mad cow." And the Globe reports that "Liberal leadership candidate Sheila Copps, who is a Roman Catholic, called Bishop Henry's remarks appalling and excessive. Campaigning in Edmonton yesterday, the Heritage Minister, who supports same-sex marriage, said she disagrees with the Vatican over such issues as the role of women and birth control."
Can anyone recall a senior politician declaring themselves a Catholic in order to say that they do endorse some important aspect of Church doctrine? Perhaps reporters don't ask. But couldn't Ms. Copps, or Mr. Martin, or the prime minister, come forward and say what important pieces of Catholic teaching they believe in? Or failing that, leave the Church on ... what's that P word? Preposterous? Personal dignity? Protestantism? I know I had it written down here somewhere.
Of course if you can find "Do what thou wilt" in the catechism of the Catholic church you can probably find it anywhere. I'm still poring over my terms of employment.
John Robson is Senior Editorial Writer and Columnist.
Listen to him on CFRA 580 AM Fridays from 8 a.m. to 9 a.m.
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** Paul Martin is an MP and he is widely tipped to be the next prime minister of Canada.
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