How Alberta might argue against gay marriage
by Margret Kopala

Published by the Ottawa Citizen, September 6, 2003

Three provinces have applied for intervener status when the Supreme Court considers the federal government's draft bill to legalize same-sex marriage next April. Only Alberta so far opposes the bill, though its arguments remain undisclosed.

Of all the provinces, why Alberta? And on what grounds might it make its case?

Faron Ellis, an Alberta pollster and instructor with Lethbridge Community College, says the Alberta government is addressing concerns of its mainstream constituents, not just its Bible Belt. In a recent poll, he found that a majority of Canadians -- with a slightly higher majority in Alberta -- disagrees with same-sex marriage.

Alberta has, in any case, passed its own legislation defining marriage as a union between a man and a woman and, through its Adult Interdependent Relationships Act proclaimed in June, made provisions for same-sex as well as other interdependent relationships.

Ellis believes Alberta will oppose federally mandated same-sex marriage on the basis it conflicts with provincial jurisdiction. "It's a high-risk strategy because the federal government tends to win division-of-power cases, and if it wins this one, Alberta could end up having its own laws declared ultra vires."

Of course, division of powers isn't the only game around. For instance, University of Calgary political scientist Rainer Knopff, in his 1999 article for Policy Options on "The Case for Domestic Partnership Laws," argues for a hierarchy of choices that while preferencing one, does not denigrate the others. "Marriage ... is society's way of giving special status to the procreative sex that produces children and to the family stability that best nurtures them ..."

While non-procreative sex among married heterosexuals challenges society's effort to give high status to procreative sex, it does not undermine that, he says. "The official recognition of same-sex marriage, by contrast, would leave absolutely no doubt that society had abandoned any public distinction between procreative and non-procreative sexuality."

Knopff presents a moderate, targeted view, but a rigorous philosophical case for opposing the whole of the secularist agenda is prosecuted by Robert P. George, professor of jurisprudence at Princeton University, in his 1999 article titled "A Clash of Orthodoxies," published in the August/September edition of First Things.

In it, he argues that, faith matters aside, Judeo-Christian moral teaching is rationally superior to orthodox secular moral beliefs predicated on the "isms" of contemporary western life -- feminism, multiculturalism, gay liberationism and lifestyle liberalism, whose projects include abortion, cultural relativism, same-sex marriage, infanticide and euthanasia.

One, he argues, values life intrinsically while the other values it only instrumentally.

In the social sphere, where gays already have adoption rights, the effects on children need to be considered. Similarly, there may now be conclusive studies on the nature/nurture/free-will determinants of sexual orientation.

The Supreme Court should also consider the desirability of promoting a behaviour -- one possible outcome of institutionalizing it -- and whether legalizing unions such as polygamy is another possible outcome. If the jury (so to speak) is out on these questions, should we pass laws whose consequences aren't known?

Failing these arguments, the trump card may well be Canada's, if not Alberta's, Bible Belt. Even if the court preserves the right of churches to disallow same-sex marriages, its legalization will encourage secularists to prosecute mainline churches anyway. Could the court sustain its own contradictions?

If not, every government in the land will be scrutinizing Section 33 of the Constitution Act, the notwithstanding clause. "Forcing religious institutions to marry homosexuals would open a flood gate to the Constitution's opting-out clause," says Ellis. "It would become an election issue everywhere."

Indeed, the power of same-sex marriage to divide religious institutions is already evident. The United Church of Canada endured this controversy for years while today, the Episcopal (Anglican) church in the United States is on the verge of expulsion from the Anglican Communion over it.

Self-inflicted schisms in a few churches? Perhaps. Once legally imposed, however, the issue no longer is a matter of the division of church and state, but rather destruction by the state of any traditional definition of the church.

Forced underground, such churches could lose charitable status, see their holy books declared "hate" literature and their members jailed for their beliefs.

"Secularism aims to privatize religion altogether, to render religiously informed moral judgment irrelevant to public affairs and public life, and to establish itself, secularist ideology, as the nation's public philosophy," says Robert George.

Does the Supreme Court really want to go there? Alberta has its work cut out.

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