Revanchist Review

Thursday, December 09, 2004

Oh, Canada - Part IV - Supreme Court Endorses Gay Marriage

The Supreme Court Weighs in Oh So Lightly

As a surprise to no one, the Supreme Court of Canada today endorsed same-sex marriages in its response to the questions posed by the Liberal government in its referral. The judgment is remarkable for the swiftness of its delivery following the submissions, and for its paucity of intellectual content.

Interveners argued that “the institution of marriage escapes legislative redefinition. Existing in its present basic form since time immemorial, it is not a legal construct, but rather a supra-legal construct subject to legal incidents.”

This argument is born from the belief of many and arguably (if given the chance to express their views on the matter) a majority of Canadians, that marriage is inextricably linked to family and these two institutions are rooted in human nature. No amount of judicial creativity can change our underlying human nature and the uniqueness of the difference between male and female.

This argument was dismissed by the Supreme Court on the gossamer thread of judicial reasoning which linked the arguments of Lord Sankey of the House of Lords in the Persons case involving the rights of women to sit as senators, to the same-sex marriage issue.

The justices said: “In addressing whether the fact that women never had occupied public office was relevant to whether they could be considered ‘persons’ for the purposes of being eligible for appointment to the Senate, Lord Sankey said at p. 134:

The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested.

To this the SCC could not resist adding its own churlish comment that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.”

In one sentence the self-evidently true distinction between male and female and the covenant relationship of marriage as an institution designed for members of the opposite sex, is dismissed as mere “custom”. The “reason” for marriage has obviously disappeared says the Supreme Court because judges in 6 Canadian provinces and 2 European countries have said so.

The SCC also dismissed the second intervener argument that there are natural limits to the concept of our constitution as a “living tree”.

The court said: "The natural limits argument can succeed only if its proponents can identify an objective core of meaning which defines what is "natural" in relation to marriage. Absent this, the argument is merely tautological. The only objective core which the interveners before us agree is "natural" to marriage is that it is the voluntary union of two people to the exclusion of all others. Beyond this, views diverge. We are faced with competing opinions on what the natural limits of marriage may be".

Behind the façade of this judicial Potemkin village lies classic Enlightenment liberalism thinking, which proclaims as superstitious and unwarranted any public policy or construct based on an understanding that mankind inescapably shares a common destiny, and which instead embraces a voluntarist definition of human relationships.

Christopher Lasch believed this way of thinking led to “an unquestioning faith in the capacity of the rational intelligence to solve the mysteries of human existence…and the desire to engage in the conquest of necessity and the substitution of human choice for the blind workings of nature.”

Two men or two women want to be married, and no one can muster the courage to say, that is not natural. Objectively, in the light of moral truth which transcends any man made laws, two men or two women don’t belong together in a covenantal sexually active union.

So the result is, let them be married. It is as simple as that in the moral vacuum of our inclusive Canadian society, if we are to believe the elites.

The proponents of same sex marriage do not want to conform to the “blind workings of nature” which created male and female and which lead naturally wherever possible to procreation and family and to the covenantal institution of marriage as a cohesive foundation to our human need for community. Mostly, these proponents object to the alienation that naturally follows from the exclusiveness of that covenant. The exclusiveness offends liberals and others who seem incapable of accepting the reality of alienation as part of our human condition.

Meanwhile, the defenders of the traditional and natural definition of marriage are unable or unwilling to direct the minds of our judges to the religious beliefs which support the traditional definition, for as Patrick Deneen points out:

“persistent religious belief offends the cultural, intellectual and economic elite....because it flies in the face of the Enlightenment creed that religious faith would be overcome with the advent of scientific progress, economic development and political liberalization. Seen by elites as superstitious and unwarranted, religious belief is derided as intellectual pabulum and false emotional security, while public policies that arise from religious traditionalism (including limits upon divorce, abortion, and efforts to protect the cohesion of local communities) are viewed as irrational, inegalitarian, illiberal, arbitrary and oppressive."

So this battle has been lost, but the resistance must continue. Czeslaw Milosz said “Evil grows and bears fruit, because it has logic and probability on its side and also, of course, strength. The resistance of tiny kernels of good, to which no one grants the power of causing far-reaching consequences, is entirely mysterious however. Such seeming nothingness not only lasts but contains within itself enormous energy which is revealed gradually. One can draw momentous conclusions from this.”

Our challenge is to persevere and seek to continuously produce those “tiny kernels of good” in the face of what seems like overwhelming odds against us.