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THE LIBERAL GOVERNMENT'S MARRIAGE PROPOSALS
Last
August, the Minister of Justice, Martin Cauchon, announced
that the House of Commons Committee on Justice and Human
Rights would carry out a study which would involve public
consultations on the marriage issue to determine whether
the definition of that institution should include homosexual/
lesbian relationships. To assist the public, Mr. Cauchon
promised that a discussion paper would be made available
in September when Parliament resumed sitting after the summer
recess. This discussion paper, however, was only released
on November 7, 2002, and can be located at http://wwww.canada.justice.gc.ca.
Mr. Cauchon states that he wants the Committee to present
him with its recommendations by the end of March or early
April, 2003, so that he can bring in legislation by the
summer of 2003. Mr. Cauchon has also urged Canadians to
write or email their views on the options under consideration.
The Liberal government is considering the following proposals:
1. Pass legislation restricting lawful marriage to a
union between a man and a woman.
This approach would be consistent with the definition of
marriage in all countries of the world, with the exception
of the Netherlands. It would recognize that marriage is
fundamental to our society, and that its primary function
is to create a stable and supportive foundation for the
procreation and rearing of children. Although marriage is
not only about procreation, the potential for having and
rearing children is central to the institution. This view
of marriage is reflected in all the major religions of the
world. In order to protect this definition of marriage from
being overturned by the courts, however, such legislation
will have to have included in it S.33 of the Charter (the
notwithstanding clause), which provides that the legislation
will continue, notwithstanding the court's decision that
it is unconstitutional. This way the courts will not be
able to overturn the law on the grounds that it does not
provide homosexuals with equality rights in marriage.
2. Legislating that same-sex couples have the legal capacity
to marry.
Such "marriages" would be valid only in Canada,
as there is no legal mechanism for recognition of such same-sex
arrangements outside our borders. This proposal also raises
the possibility that religious institutions might be forced
to perform same-sex marriages. None of the recent court
decisions addressed this crucial point. The discussion paper,
however, implies that the requirement of religions to perform
same-sex marriages is "unlikely." However, recent
decisions by Canadian courts, restricting religious freedoms,
gives rise to a genuine concern that the courts might well
reach quite the opposite conclusion, and, require religious
institutions to perform same-sex "marriages" on
the grounds that it would be discriminatory under the Charter
to refuse to marry same-sex partners.
Further, the endorsement of marriage by same-sex partners
means that there would be no principled basis on which to
prohibit other marriage forms, such as polygamy, or a brother/sister
or a father/daughter union on the basis that they too are
being deprived of their "equality" rights. That
is, the reasoning in favour of same-sex cases applies equally
to other living arrangements as well.
3. Remove the federal government entirely from the marriage
issue, leaving it up to religious institutions to act according
to their own views.
This would permit, for example, the homosexual Metropolitan
Community Church in Toronto, the United Church and perhaps
some dioceses of the Anglican Church, to perform legal marriages
for same-sex couples. In effect, such an option would legalize
same-sex marriages.
A further problem with this approach is that it would work
only with the full co-operation of all provinces and territories
which, under the BNA Act, have been given the right to solemnize
marriages. If there is no federal law, then the provinces
may pass their own legislation on marriage, creating an
inconsistency across Canada. Moreover, if there is no federal
marriage law, there will then be no divorce law either,
Parliament will then be rightly criticized for failing to
exercise its authority by failing to protect vulnerable
partners and children.
4. Establish a civil registry system open to all couples,
whether same-sex, opposite sex, as an alternative union.
This arrangement could be fashioned as either a registered
domestic partnership, such as that recognized in Vermont,
or alternatively, a legalized civil union as was established
in France in 1999, as well as in Quebec last June.
This too would require the full co-operation of the provinces,
in order that these unions be recognized in all of Canada.
Otherwise, the registration of these unions would be limited
to federal statutes and provisions only. Matters of child
support, division of property and parental responsibility
differ in each province, and this will lead to even more
claims of discrimination by homosexual partners if the provinces
choose not to accept such civil unions under their provincial
law. The federal statute creating an alternative civil union
would probably include a provision stating that marriage
is an opposite-sex union only.
However, such civil unions would in fact be counterfeit
marriages and a serious threat to the stability of society
and the health and welfare of children. This is because
it gives all the benefits and rights of marriage and preserves
marriage in name only. Marriage, however, should be preserved
as a unique relationship that is the cornerstone and foundation
of society. A civil union, although distinct from marriage,
is a distinction without a difference in nearly all respects.
The civil registry system approach suffers from another
problem: It does not appear to be acceptable to homosexual
activists who are demanding nothing less than full marriage
rights and will undoubtedly go to court to challenge their
perceived "inequality" treatment if civil unions
become legally recognized.
CONCLUSION
It is not possible here to discuss all the problems and
possibilities that will arise should the law on marriage
be changed. That is, once the basic foundation of society,
marriage as a union between a man and a woman, is shifted
or even trifled with, confusion, chaos and uncertainty and
unintended results will arise, especially in a country such
as Canada with a federal system of government. That is,
these civil unions in a state such as Vermont, or a province
such as Nova Scotia, or a country such as Norway and France,
which have one central government, makes civil unions far
easier to implement than a country such as Canada, with
our federal system of government with separate federal and
provincial responsibilities. These complications will inevitably
give rise to even more court challenges, uncertainties and
financial difficulties for partners and vulnerable children,
and problems for our religious institutions.
Clearly, the best proposal, both for children and a stable
society, is to legislate the traditional definition of marriage,
including the notwithstanding clause within the legislation,
in order to offset any future court rulings. Mr. Cauchon
has urged that we inform him and our own MP about our views
on the issue. Please do so. Write to:
The Hon. Martin Cauchon, PC, MP
Minister of Justice
Justice Building, 284 Wellington St.
Ottawa, Ontario K1A 0H8
Tel: (613) 992-4621 Fax: (613) 990-7255
Email: marriage@justice.gc.ca
Your MP
House of Commons
Ottawa, Ontario K1A 0A6
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