We're all one big happy family now In the
interest of equality for all courts
<<< Back to About Our Judges
<<< Back to Other Articles
We're all one big happy family now
In the interest of equality for all, courts have rendered meaningless
the definition of marriage
Times Colonist
September 26, 2004
Equality is regarded as one of the fundamental values for citizens
living in a democracy. Our own Constitution guarantees "equality
rights" in the charter.
It states that every individual is equal before and under the law,
and deserves its protection and benefits equally and without
discrimination that, in particular, is based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical
disability.
Governments in this country have sought to extend benefits to regions
to provide "equal opportunity" to Canadians. We are told we
enjoy "equal access" to heath care. Our tax system is meant to reduce
the disparity between high-income and low-income Canadians.
Merchant mariners have campaigned -- with some degree of success --
for benefits extended to war veterans. Dog owners have sought -- with
less success -- equal access for their dogs to city and regional
parks. Cyclists demand equal accommodation with cars on our roads.
Quebec wants ... well, let's leave that one alone.
This feeling of universal entitlement -- aggravated and encouraged by
the charter and the judges who interpret it -- makes it difficult for
governments to design social policy: As soon as one social group is
granted a benefit, another group steps forward to demand the same.
The state -- or estate -- of marriage has undergone two assaults. In
the first, the government has come to recognize cohabitation or
common-law unions in allowing benefits and privileges that used to be
reserved for married couples.
More recently, although the charter says nothing about homosexual
rights, the courts have declared sexual orientation an
unconstitutional basis for discrimination, leading to the second
assault on marriage: Its common-law definition as between a man and a
woman is unconstitutional because it offends against the "dignity" --
another word not found in the charter -- of gays and lesbians.
Whether in wedlock or out, whether getting into it or getting out --
for one court has said gay and lesbian couples can divorce --
homosexual and heterosexual couples are equal before the law.
Those who feel that on religious grounds the institution of marriage
has been debased by the courts are being told that the sacrament of
marriage in churches, temples and synagogues is not being thrown open
indiscriminately. Freedom of religion is guaranteed under the
charter, the federal government assures us. Yet it doesn't inspire
all that much confidence when it feels compelled to ask the Supreme
Court to confirm this.
And what will the Supreme Court say when, as seems inevitable, it is
asked whether polygamy is lawful where based on religious conviction?
How long will it be before B.C.'s Bountiful commune, a break-away
sect of the Mormons, or one like it, reaches the highest court?
Based on the courts' charter-inspired logic -- and biology, for that
matter -- polygamy makes as much sense as same-sex marriage.
Last week the state of marriage, both in its traditional and evolving
form, was assaulted again. A federal court judge -- wouldn't you know
it had to be a judge? -- launched a complaint that she and other
single public servants are being discriminated against on the basis
of marital status. The government, she says, should grant single
employees the same benefits extended to public servants who are
married or cohabiting with partners.
People recognized as couples by the state can secure medical and
dental coverage for one another; they can name one another as
survivors qualifying for half their pensions when they die. Single
Canadians can't.
It's clear that what used to be called marriage is no longer the
exclusive preserve of couples making a commitment for "life" or to
raise a family. And certainly today's family no longer conforms to
the '50s TV concept -- a father working for pay, a mother dusting for
nothing and a couple of kids doing as they're told.
As an institution marriage has changed so much that it -- or its
common-law cousin -- may no longer warrant the special benefits that
our society has bestowed on it in the past.
In the interests of equality, why should a single person not be able
to designate, for the practical purpose of state benefits, a sister
or brother, a friend, an adopted child?
If the courts can declare that homosexuals cannot suffer
discrimination under our Constitution, even though their omission was
deliberate by the politicians who wrote it, why can't they declare
unconstitutional discrimination based on whether a person is single
or attached? Don't single men and women deserve a little dignity,
too? Shouldn't we all be equal in one big, happy family?
To put it in grammatical terms, if gender no longer makes a
difference, why should number?
� Times Colonist (Victoria) 2004
Link here
Back to top of Document
