Marriage Debate
Resisting Judge Made Law
The post Charter of Rights period in Canada has seen the ascendancy of judicial activism. Much of the blame for this rests with the governing federal political parties since 1982 and their unwillingness to take leadership by allowing citizens, through their MP’s, to determine what and whose fundamental rights the Charter should protect.
The knee jerk default position of governments and elites has been to resist the imposition of moral or cultural values by a majority on a minority. The result has been a tyranny of the minority as seen by the successful campaign of the same sex marriage lobbyists to convince the Supreme Court of Ontario to declare the right of same sex couples to marry to be a right protected by the Charter.
Like dominoes the superior courts of 6 other provinces and 1 territory have fallen over in response, while the potentially steadying hands of federal and provincial Attorneys General remain stuffed deep in their pockets. No legal opposition has been mounted to this judicial sortie into the political realm.
Where is the public debate on this issue? Why is it left to New Brunswick Conservative MP Rob Moore to introduce a private members bill in the House as the only means to put the issue of same sex marriage on the political agenda? Where are the reasoned commentaries in our national newspapers putting forward the argument in favour of maintaining marriage as the preserve of a man and woman – not for religious reasons or for homophobic reasons but for the best reason of all – that it just makes plain sense to do so.
This assertion that one can determine the rightness or wrongness of something by feeling is much maligned by today’s intellectuals. They deny us this essential truth about our humanity. I find philosopher Lesley Kolakowski’s view on this matter to be persuasive. “We do not assent to our moral beliefs by admitting ‘this is true’, but by feeling guilty if we fail to comply with them. This involves not an intellectual act but “an act of questioning one’s own status in the cosmic order…an anxiety following a transgression not of a law but of a taboo.”
The debunking of the received wisdom of many of our society’s taboos, and the deracination of our natural feelings of shame and disgust has left many lost and confused by the many changes to our cultural landscape in the last 20 years.
The opponents of same sex marriage propose that parliament pass a law declaring that marriage is the sole preserve of a man and woman. That there is a moral component to this legislation is a given. Such legislation would be a step to retake territory lost in the latest skirmish in the culture war.
There are two coercive instruments at work in a stable democratic nation – 1) Parliament and its law-making power and 2) the moral coercion of public opinion. It is naïve to pretend that conflict between people can be avoided when it comes to setting standards of morality and virtue within a society.
James Fitzjames Stephen illustrates this when he says:
“There is only one illustration of the general truth that the intimate sympathy and innumerable bonds of all kinds by which men are united, and the differences of character and opinions by which they are distinguished, produce and must forever produce continual struggles between them. They are like a pack of hounds all coupled together and all wanting to go different ways. J.S. Mill would like each to take his own way. The advice is most attractive, and so long as the differences are not very apparent it may appear to be taken, but all the voting in the world will not get the couples off, or prevent the stronger dogs from having their way in the long run and making the others follow them. We are thus brought to the conclusion that in morals as well as in religion there is and must be a war and conflict between men.”
Stephen goes on to make the point that “the influences which tend to unite men and which give them an interest in each other’s welfare are both more numerous and more powerful than those which throw them into collision. The effect of this is not to prevent collisions, but to surround them with acts of friendship and goodwill which confine them within limits and prevent people from going to extremities.”
He concludes “complete moral tolerance is possible only when men have become completely indifferent to each other – that is to say, when society is at an end. If, on the other hand, every struggle is treated as a war of extermination, society will come to an end in a shorter and more exciting manner, but not more decisively. A healthy state of things will be a compromise between the two.”
It seems the voice of those who oppose same-sex marriages in the secular arena has too often been shrill and judgmental, antagonistic not only to the judicial change to the definition of marriage but to the gay and lesbian individuals who wish to avail themselves of the institution. Lost are the voices of friendship and goodwill. The voices that say to the extent committed same-sex couples are discriminated against with respect to certain legal benefits of succession, social assistance and the like, the tolerance of Canadians will extend those benefits to them.
Same-sex couples have with but few exceptions won all those battles and the conflict has been resolved in their favour. Where further concessions short of granting them the keys to the institution of marriage are required, they could readily be attained.
It is time for the spirit of compromise to be rekindled in the hearts of the same sex marriage advocates who are pushing the battle to the ramparts of the marriage redoubt. The risk of this struggle becoming a war that exterminates society is a real one. This assumes of course Canada has not already reached the stage of complete moral tolerance through utter indifference – a very real possibility particularly in our large cities.
If one were to measure the state of Canadian society by the willingness of elected officials to take principled stands and to encourage a broad public debate, one would regrettably conclude that the war indeed has been lost.
However, if every Canadian paused and thoughtfully considered this issue and its implications for our society, and upon concluding it was a matter of importance, took a moment to write to his or her MP with a copy to the Prime Minister; we might just spark a revival of conscience and duty on the part of enough of our parliamentarians to permit this matter to be resolved through broad public debate and not by the fiat of a majority of 9 Supreme Court judges.
The post Charter of Rights period in Canada has seen the ascendancy of judicial activism. Much of the blame for this rests with the governing federal political parties since 1982 and their unwillingness to take leadership by allowing citizens, through their MP’s, to determine what and whose fundamental rights the Charter should protect.
The knee jerk default position of governments and elites has been to resist the imposition of moral or cultural values by a majority on a minority. The result has been a tyranny of the minority as seen by the successful campaign of the same sex marriage lobbyists to convince the Supreme Court of Ontario to declare the right of same sex couples to marry to be a right protected by the Charter.
Like dominoes the superior courts of 6 other provinces and 1 territory have fallen over in response, while the potentially steadying hands of federal and provincial Attorneys General remain stuffed deep in their pockets. No legal opposition has been mounted to this judicial sortie into the political realm.
Where is the public debate on this issue? Why is it left to New Brunswick Conservative MP Rob Moore to introduce a private members bill in the House as the only means to put the issue of same sex marriage on the political agenda? Where are the reasoned commentaries in our national newspapers putting forward the argument in favour of maintaining marriage as the preserve of a man and woman – not for religious reasons or for homophobic reasons but for the best reason of all – that it just makes plain sense to do so.
This assertion that one can determine the rightness or wrongness of something by feeling is much maligned by today’s intellectuals. They deny us this essential truth about our humanity. I find philosopher Lesley Kolakowski’s view on this matter to be persuasive. “We do not assent to our moral beliefs by admitting ‘this is true’, but by feeling guilty if we fail to comply with them. This involves not an intellectual act but “an act of questioning one’s own status in the cosmic order…an anxiety following a transgression not of a law but of a taboo.”
The debunking of the received wisdom of many of our society’s taboos, and the deracination of our natural feelings of shame and disgust has left many lost and confused by the many changes to our cultural landscape in the last 20 years.
The opponents of same sex marriage propose that parliament pass a law declaring that marriage is the sole preserve of a man and woman. That there is a moral component to this legislation is a given. Such legislation would be a step to retake territory lost in the latest skirmish in the culture war.
There are two coercive instruments at work in a stable democratic nation – 1) Parliament and its law-making power and 2) the moral coercion of public opinion. It is naïve to pretend that conflict between people can be avoided when it comes to setting standards of morality and virtue within a society.
James Fitzjames Stephen illustrates this when he says:
“There is only one illustration of the general truth that the intimate sympathy and innumerable bonds of all kinds by which men are united, and the differences of character and opinions by which they are distinguished, produce and must forever produce continual struggles between them. They are like a pack of hounds all coupled together and all wanting to go different ways. J.S. Mill would like each to take his own way. The advice is most attractive, and so long as the differences are not very apparent it may appear to be taken, but all the voting in the world will not get the couples off, or prevent the stronger dogs from having their way in the long run and making the others follow them. We are thus brought to the conclusion that in morals as well as in religion there is and must be a war and conflict between men.”
Stephen goes on to make the point that “the influences which tend to unite men and which give them an interest in each other’s welfare are both more numerous and more powerful than those which throw them into collision. The effect of this is not to prevent collisions, but to surround them with acts of friendship and goodwill which confine them within limits and prevent people from going to extremities.”
He concludes “complete moral tolerance is possible only when men have become completely indifferent to each other – that is to say, when society is at an end. If, on the other hand, every struggle is treated as a war of extermination, society will come to an end in a shorter and more exciting manner, but not more decisively. A healthy state of things will be a compromise between the two.”
It seems the voice of those who oppose same-sex marriages in the secular arena has too often been shrill and judgmental, antagonistic not only to the judicial change to the definition of marriage but to the gay and lesbian individuals who wish to avail themselves of the institution. Lost are the voices of friendship and goodwill. The voices that say to the extent committed same-sex couples are discriminated against with respect to certain legal benefits of succession, social assistance and the like, the tolerance of Canadians will extend those benefits to them.
Same-sex couples have with but few exceptions won all those battles and the conflict has been resolved in their favour. Where further concessions short of granting them the keys to the institution of marriage are required, they could readily be attained.
It is time for the spirit of compromise to be rekindled in the hearts of the same sex marriage advocates who are pushing the battle to the ramparts of the marriage redoubt. The risk of this struggle becoming a war that exterminates society is a real one. This assumes of course Canada has not already reached the stage of complete moral tolerance through utter indifference – a very real possibility particularly in our large cities.
If one were to measure the state of Canadian society by the willingness of elected officials to take principled stands and to encourage a broad public debate, one would regrettably conclude that the war indeed has been lost.
However, if every Canadian paused and thoughtfully considered this issue and its implications for our society, and upon concluding it was a matter of importance, took a moment to write to his or her MP with a copy to the Prime Minister; we might just spark a revival of conscience and duty on the part of enough of our parliamentarians to permit this matter to be resolved through broad public debate and not by the fiat of a majority of 9 Supreme Court judges.
posted by Ben Buan | 8:13 p.m.
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