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CAUT Bulletin Archives

February 2005

Gay Marriage Buttressed by Law

Loretta Czernis
Discrimination can never be morally justified. For centuries it was commonplace to discriminate against women. It became second-nature not to think of women as persons. On this issue, there has been some forward movement. Such is hardly the case with gays and lesbians who still face discrimination on many fronts.

Eight courts throughout Canada have ruled that excluding gays and lesbians from civil marriage is unconstitutional. According to 134 law professors, all of whom signed a letter addressed to Conservative Leader Stephen Harper, "The consensus of constitutional experts is that these decisions are correct." The letter, sent to Harper in January, urged him to come clean with citizens by explaining that the only way to prohibit same-sex couples from marrying would be to use the notwithstanding clause in the Charter of Rights and Freedoms.

The Charter protects both nondiscriminating rights and freedom of religion. Under the proposed new legislation, couples are free to choose whether or not to marry, and religious officials are free to choose whether or not to perform the ceremonies.

Toronto's Roman Catholic Archbishop, Cardinal Aloysius Ambrozic, has asked the federal government to invoke the notwithstanding clause. This would perpetuate discrimination against gays and lesbians. Churches already exercise their right to deny marriage ceremonies to people. The Catholic church does not marry people who have been divorced, or people who are not Catholic. No one is forcing Catholic clergy to marry gay couples. They already have the right to refuse to marry, for example, Protestant and Jewish couples.

There are members of the clergy from other denominations who are eager to conduct the ceremony for gay and lesbian couples. Reverend Eldon Hay, a minister of the United Church of Canada, emeritus professor at Mount Allison University and a Member of the Order of Canada, has two sons, one heterosexual and one homosexual. "The rights, responsibilities and freedoms of my straight son should be the same as those for my gay son," Hay said.

"Pro-family" groups and cultural experts across the nation and around the world warn that redefining marriage will have profound, far-reaching and drastic effects on the family. They say this is a decision that shouldn't be rushed through Parliament or foisted on people. They say Canada's children will pay a devastating price. Such thinking derives from fears around changes that have already taken place in the modern western family structure. The "happy" nuclear family they imagine can only be found on television. We know the divorce rate stands currently at about 38 per cent. Same-sex marriages may very well help to lower divorce statistics.

After decades of debate, public opinion and court rulings are clear - lesbian and gay people are entitled to equal civil marriage. Those who do not support freedom from discrimination appear on the surface to want to continue to debate. What they really want is to tie up cases in the courts for years, taxing our legal system with cases the law professors have told Harper are straightforward. If Harper and his political allies try to sidestep the notwithstanding clause and go to court, their arguments will be ruled unconstitutional. This is a basic human rights issue.

Homosexuality was decriminalized in this country 35 years ago. The new law will help Canadians make more progress in overcoming our unsettling history of social discrimination. Once the dust settles, we must continue our fight for the rights of other equity-seeking groups.