Don’t Use the Charter for Political Correctness
Published in the Ottawa Citizen, December 18th, 2004
Better late than never, at last there’s meaningful and accessible analysis in the debate on same-sex marriage. Published earlier this year by McGill Queen’s University Press and edited by Daniel Cere and Douglas Farrow, Divorcing Marriage, Unveiling the Dangers in Canada’s New Social Experiment is a collection of thoughtful arguments by established academics who oppose same sex marriage and raise seminal questions about its social effects, the nature of human dignity and equality rights, and the proper relationship of the state to civil society. This makes Divorcing Marriage the Christmas season’s must-have stocking-stuffer generally but particularly for parliamentarians, opinion makers and officers of the courts who must deliberate on such matters.
One chapter focuses on the obligatory questions about how same-sex marriage will affect our religious freedoms while, appropriately, concerns about the needs of children to be raised by their biological parents are woven throughout. Here, too, new questions arise, such as how will it affect the development of a masculine identity in young men for whom having or being a father is already devalued and a source of increasing social problems?
Then there are the legal questions: should feelings, lifestyles, or behaviours be determinants in defining human dignity and the disposition of equality rights?
Among the many contributors who address these and other questions, though, it is a law professor from the University of Alberta who offers a profound caution for our times and who concludes the answer to same-sex marriage is “Nothing, nothing at all.”
In a short but far reaching essay entitled “What’s the Charter Got to Do With It?" F. C. DeCoste exposes how a well meaning liberal state can descend into totalitarianism.
State and law exist for persons, the legal theorist who also teaches on law and the Holocaust writes. Persons define themselves in their interactions with each other, not with the state. These interactions comprise civil society or “the culture of daily life” where persons are left alone “to author their own so-brief lives as each sees fit provided only that they cause no one harm.” Civil society is therefore prior and superior to the state, one of whose tasks is to maintain the primacy and autonomy of civil society. This means prohibiting “totalitarianism (or state occupation of the private sphere through legal imperialism) and, with that, the commitment, institutionalized through the rule of law, to limited government.”
Exceeding these boundaries, the state no longer protects social life but instead becomes its supervisor and engineer … and “the source, and not just the custodian, of rights and duties …”
“The state’s claim over marriage is most egregious in these regards, because marriage is both so intimate a form of social life and the form of life through which so many claim authorship over their lives.”
Good intentions only blind “the officers of the reformist state …to the consequences of their decisions.” Today, equality “is the value on which the social-engineering state acts.” Those who oppose it are viewed as “standing for inequality.”
In a paper on the Halpern v Canada decision, DeCoste relents sufficiently to suggest the state (sic the provinces) may recognise civil unions if same-sex unions are established as a social institution and if recognition does not reduce to social engineering. “The first condition is meant to respect the integrity of the homosexual community …, especially so given the law’s dishonourable history in that regard; and the second is meant to prohibit the state from rejoining that history under the guise of benevolence.”
Should Parliament decide? “Our law is a tradition and site of contestation about the limits of the authority of the state, in all of its branches, (his italics) to regulate our lives …”
Both Trudeau’s Charter of Rights and Freedoms and the United Nations’ Universal Declaration of Human Rights were a hopeful response to the horrors of the Holocaust and Nazi totalitarianism. What a bitter irony, then, that the Charter and much human rights legislation should now be abused to promote the soft totalitarianism of the secular and the politically correct.
Perhaps the Supreme Court understood these dangers when it declined a response on the constitutionality of traditional marriage. Perhaps the eight premiers who opposed Trudeau when he first introduced the Charter intuitively understood them too because only when Alberta’s Premier Lougheed suggested the notwithstanding clause was it accepted. Has an Albertan again shown the way forward?
Margret Kopala’s column on western perspectives appears weekly.