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The first casualty of the Ontario
gay-marriage ruling is truth. The second is Canadian democracy.
Let us begin with the deceptions being spun out to justify
the decision to beleaguered Canadians:
* "The judges are just enforcing what the Charter
requires." This is the mother of all whoppers. Sexual
orientation/gay rights is not in the Charter. Attempts
to place it in the Charter were rejected by those who framed
the Charter. Sexual orientation was not in the 1987 Meech
Lake Accord nor the 1992 Charlottetown Accord. The idea
of constitutionally enforceable gay rights is judge-made
law from start to finish.
* "The judges are just adapting the meaning of the
Charter to changing public opinion towards homosexuality."
Sensing the vulnerability of Lie Number One, this is a popular
fall-back position. It is just as false as the first. The
courts are actively trying to change public opinion, not
reflect it.
* "Judges must decide issues like this to fill the
legislative void created by timid politicians who avoid
political controversies." In none of the examples used
by 'Court Party' apologists -- abortion, gay rights, marijuana
legalization -- is there a legislative void. In each case
there is a law. These laws are often the rather untidy compromises
typical of divided public opinion that legislatures reflect.
It is not the "legislative void" that prompts
judicial intervention. It is the judges' impatience with
the refusal of legislatures to accept the "rights claims"
of advocacy groups.
* "The courts make legal decisions, not political
decisions." This is a variation on the whopper and
was trotted out in a timely manner by the current Chief
Justice of Canada in the midst of the court-ordered gay-marriage
circus in Toronto.
The Chief Justice's defense that Charter interpretation
is "high level, specialized, intellectual work"
cannot hide the fact that Charter litigation has become
a standard interest-group tactic and that rights-advocacy
groups expend considerable resources to influence how judges
"interpret" the Charter.
* "When courts strike down a law, they are not dictating
public policy to legislatures but rather engaging in dialogue
between judges and legislatures." Presumably, the Ontario
Court of Appeal ruling will mean the end of this defense.
Unlike the other appeal courts that suspended their rulings
to give Parliament time to consider an appeal or a legislative
response, the Toronto Troika ordered their newly fabricated
gay-marriage law to take effect immediately. This unprecedented
act of judicial imperialism was clearly intended to pre-empt
any meaningful legislative response. Its scorn for parliamentary
input is only heightened by the fact that it came just as
the House of Commons Justice Committee was preparing its
report on same-sex marriage after months of public consultation.
Who could possibly resurrect the "dialogue" defense
after this high-handed display of judicial contempt for
Parliament's (and by extension, the public's) views on this
issue?
Even admitting that politics is the art of the half-truth,
these misrepresentations are stunning in their breadth and
scope, and present a sorry commentary on the state of democracy
in this country. Canada
may be the third country in the world to adopt gay marriage,
but we are the only one to do so because of the decisions
of unelected judges. There are four principal culprits in
this attack on Canadian democracy.
Culprit number one is the judges and their apologists in
the academy and the legal profession. Intoxicated by the
power and status of their new self-made roles as Platonic
philosopher-kings and social reformers, our judicial elites
have abandoned any pretense of neutrality between competing
social interests in Canadian society. Our appeal court judges
have turned a citizens' constitution into a victims' constitution,
under which equality trumps liberty and the ends always
justify the means.
Culprit number two is the Liberal government of Jean Chrétien,
which appoints all appeal court judges, forks over millions
of taxpayer dollars to groups like EGALE and LEAF to pay
their litigation costs, and then rolls over and plays dead
every time a court strikes down a federal policy. It was
bad enough when the PM and his various justice ministers
copped the "Charter-made-us-do-it" excuse every
time the Supreme Court struck down a law. Now they abdicate
their responsibilities for "responsible government"
when three judicial nobodies on a provincial court of appeal
crack the Charter whip.
So why is the tail wagging the dog? Because the dog wants
it that way. The Chrétien government enjoys being ordered
around by the judges. It allows the Liberals to make policy-side
payments to the Trudeau wing on the Party ( NDs with more ambition than principle) without having to
take responsibility for it at the next election. So Canadians
must submit to a growing list of new public policies --
gay marriage, marijuana legalization, prisoner voting, and
on and on -- without anyone being accountable.
Culprit number three are the wimpy provincial premiers
who, like beaten dogs, just keep taking it. Don't they realize
that they are the protectors of the long and honourable
Canadian tradition of community self-government that federalism
was intended to protect and promote? The judicial policy-vetoes
issuing from the Supreme Court's today are no different
than the edicts of disallowance that the federal cabinet
used to try to impose on provinces. Indeed, the new Charter-based
power of the Supreme Court is little more than "disallowance
in disguise" -- thinly veiled as a legal rather than
a political act.
The successful battle against federal disallowance was
led by Ontario Premier Oliver Mowat. He pointed out that
if a dissatisfied provincial minority
can run off to their political allies in Ottawa
every time they lose a policy vote in the provincial legislature
and have it reversed, "responsible government is at
an end."
"Who shall govern the province," Mowat thundered,
"the majority or the minority?" Why are today's
provincial premiers afraid to defend their own people's
right to self-government?
The fourth and final culprits in democracy's demise are
the identity-politics groups, the new breed of political
activists who define politics based on race, gender, sexual
orientation, and so on. Their answer to Oliver Mowat's rhetorical
question is unequivocal: the minority. This is what makes
gay and feminist politics more dangerous than their policies.
Their commitment to democracy is conditional. The majority
may govern so long as they adopt the "right" policy.
But if they don't, forget it.
The constant escalation of policy demands into rights claims
is driven by a politics of moral imperatives that demonizes
any opposition. Normal policy disagreements are turned into
pitched battles between good and evil. To oppose any of
their policy claims is deemed to be proof that you hate
the members of the group. If you oppose a gay claim, you
are homophobic. If you oppose an aboriginal claim, you are
racist. If you oppose a feminist claim, you are sexist.
Despite the patent absurdity of such accusations, they have
been used successfully to stigmatize and silence opposition.
Liberal democracy cannot long survive under these conditions.
A conditional commitment to democracy is no commitment in
the long run. Rather than have governments that are accountable
to their citizens, we are moving towards a new political
regime in which the citizens are accountable to their governments.
This is not a uniquely Canadian disease. The post-Marxist
Left -- the new Egalitarians -- are busy in all Western
democracies trying to shift political power to non-accountable
institutions: publicly funded "stakeholder" groups,
courts, administrative tribunals and international bodies.
But it is our misfortune in Canada
to be further along this path than any other Western democracy.
The Ontario
gay-marriage ruling and the Liberals' acquiescence in it
is the most recent marker in the decline of democracy in
this country.
Ted Morton is a professor of political science at the
University
of Calgary.
He is the co-author of the award-winning book, The Charter
Revolution and the Court Party (Broadview, 2000).
© 2003 Winnipeg Free Press. All Rights
Reserved
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