Why can’t intelligent people think straight about homosexual marriage?

F.L. (Ted) Morton

National Post, A14, Sept. 4, 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? 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 Professor 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, 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 US 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 the section 33 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 puts 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 ten provinces only accepted adding Mr. 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—B.C. 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.

F.L. Morton teaches constitutional law and politics at the University of Calgary. His proposal to democratize the notwithstanding power by way of referendum may be read on line in the August edition of Fraser Forum (www.fraserinstitute.ca)