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Friday, May 21, 1999

Yellow-bellied politics

National Post

Notwithstanding the immediate "spin" of same-sex rights advocates, the decision handed down yesterday by the Supreme Court of Canada in M v. Rating onedid not remove from Canadian law the special status of the heterosexual traditional family that has served Western society so well for centuries. It did remove a bald distinction in Section 29 of Ontario's Family Law Act that gave certain economic benefits to unmarried, cohabiting opposite-sex couples but withheld them from gays and lesbians in long-term relationships. If such a change is to be made, it should ideally be part of a broader reform of the law that would seek to strengthen traditional marriage and its supporting privileges.

Granting equal standing to heterosexual and same-sex common law relationships is not necessarily a wrong political decision. It is, however, a political decision -- and not a judicial one. This ruling is more objectionable for its intrusion into the sphere of politics, and for the shifty manner in which it was reached, than for its content.

Let us review the record. In Egan, a 1995 Supreme Court case that rejected the legal recognition of same-sex couples as spouses for the purposes of pension benefits, Justice Gerard La Forest made clear that heterosexual marriage is unique. As a means of bringing children into the world and raising them, he said, marriage between a man and a woman is valuable to the long-term stability and even existence of society. Nothing in M v. Rating onetakes away from that.

Moreover, the unique status of marriage was confirmed by Parliament when, in September, 1995, a motion calling for same-sex benefits across the board was roundly defeated. At the provincial level, the Ontario Legislature quashed Bill 167, which called for the legal declaration of same-sex couples as "spouses," in June, 1994.

None of this is reflected in the language in the majority decision of M v. H. Nowhere does the court proclaim the virtue of traditional marriage. And it nowhere notices the life-long obligations of the marriage pact that make it a unique institution deserving unique support. Yet such reflections were surely necessary on this occasion to underline that M v. Rating oneis a narrow decision and did not presage future legal changes to place same sex unions and marriage on an equal footing. These omissions reflect the social fact that the special status of marriage has fallen increasingly into disfavour with this country's elites, including the judiciary, and warn us that attempts to extend yesterday's ruling to marriage's detriment are to be expected.

All this leads, however, to a fundamental political question: How did the definition of something so basic as marriage ever fall into the laps of nine unelected judges in the first place?

For the ruling in M v. Rating oneis nothing less than a political tract in legal drag. This far-ranging decision undermines the constitutionality of dozens of statutes across Canada. It thus throws a wrench into the Ontario election and raises a key political issue for voters in New Brunswick. Finally, it compels Alberta to institute a referendum following Premier Ralph Klein's recent commitment to submit any putative changes on the definition of marriage to the people before deciding whether to invoke the "notwithstanding" clause of the Charter of Rights and Freedoms.

Although they have persuaded themselves otherwise, judges do not enjoy the privilege of single-handedly determining the legal and political basis of our core social institutions. These are pre-eminently political decisions to be determined in free political debate by the people's representatives in Parliament and provincial legislatures. If legislatures, as happened in B.C., decide to install same-sex "rights" and benefits in law, even those who disagree with the decisions will still concede their legitimacy. But if legislators refuse to go along that path, it is up to the voters, not the judiciary, to buffalo them into action.

Some may argue that this is all the fault of our politicians, who long ago ceded their authority in the sphere of social policy to the courts. To the limited extent that this is true, however, it does not apply to this case. The decision to appeal M v. Rating oneto the Supreme Court was extremely odd, since the case was legally moot. M and H, the lesbian protagonists in this drama, settled their dispute long before yesterday's decision.

The fact that this decision was contrived by the Court itself, moreover, reveals the insincerity and absurdity of statements by activist judges that Canadian society "thrust" extra-democratic powers upon them through the passage of the Charter in 1982.

This does not let politicians off the hook. Hoping to bury a contentious election issue before it bit him, Mike Harris, the Ontario Premier, pledged yesterday to abide by the Supreme Court's judgment rather than to invoke the notwithstanding clause to overrule it. He also said he does not agree with the court's decision -- but so what? His personal view is irrelevant if he does not propose political action to implement what he and perhaps most voters believe.

Mr. Harris' excuse -- a common political one -- is that he is not a great fan of the "notwithstanding" clause. But it is part of the same Constitution that he cites as a reason for not opposing the Court's decision. And as we have argued before, the Charter would never have been adopted without it. To be sure, it is a blunt weapon against the judiciary's extravagances. But a blunt weapon is better than no weapon at all against a judiciary intent on imposing its social prejudices on the nation.

Fortunately, there are elections on in Ontario, New Brunswick, and, very soon, in other provinces, too. That gives the voters some brief power over the politicians and, by extension, over the courts. Let the voters tell the candidates of all parties that they can whistle for their support unless they pledge to employ the notwithstanding clause against power grabs by the Supreme Court, beginning with this decision. If the politicians wish to respond by broadening this pledge with the promise to extend marriage and cohabitation laws along the libertarian conservative lines we suggest above, well and good. But the vital political point today is to strike a blow against judicial activism.

If our premiers refuse to do so voluntarily, the voters should remind them who ultimately is boss in a democracy.

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