Letter to the Canadian Minister of Justice, Summer of 2002
The Honourable Martin Cauchon
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Minister Cauchon,
I am writing to register my disapproval of the Minister's recent decision to seek leave to appeal the July 12th, 2002 Ontario Divisional Court ruling on the constitutionality of the common law, opposite sex meaning of marriage.
The Ministry's press release on this issue dated July 29th, 2002 suggests that the Government is reluctant to accept the court's decision because there is, at present, no consensus on the question of same sex marriage. I accept that the issue is a controversial one, but in simply noting its controversiality the Minister sidesteps the substantive moral issue. The current definition of marriage is plainly discriminatory, and is thus incompatible with the Government of Canada's responsibility, noted in the same press release, to ensure equality for all Canadians. The clear intent of the law is to devalue same sex unions by denying them the same legal status as heterosexual unions. If the Minister believes that same sex unions are of lesser value than heterosexual unions, he should say so. Otherwise, he should accept that there is a strong moral claim for treating them equally.
I also note that controversiality as such is not sufficient grounds for denying a basic right such as the right to marry. In a democracy, most issues are obviously at the discretion of the majority, and its representatives, to determine. Nevertheless, our political tradition has long considered other matters, especially deeply personal ones, to be protected from the results of political bargaining. In some quarters, one still hears this refered to as undemocratic. But this objection confuses democracy with majoritarianism. It has been obvious at least from J.S. Mill onwards that a robust respect for democracy is compatible with legal and constitutional protections for minorities.
The Minister's moral failure is compounded by what is almost certainly an error in Constitutional law. The July 29th, 2002 press release cites two legal precedents to support its appeal, but the recent ruling cannot have come as a surprise to either the Minister or his staff. As the Minister knows, recent Supreme Court decisions have made it overwhelmingly likely that the July 12th, 2002 Ontario Divisional Court ruling will be affirmed on appeal. Thus, the only probable effect of the Minister's decision is to impose additional burdens on same sex couples in a pointless attempt to postpone the inevitable. The constitutional background to the Minister's decision adds to the impression that the decision is a cynical one, guided more by politics than either moral or constitutional considerations.
I want to note finally that while the issue obviously touches most closely the lives of same sex couples, it is one that a great many heterosexual Canadians have an interest in. In my own case, reflection on my own marriage has convinced me that the Government denies same sex couples a great good when it denies them the right to marry. Only a generation or two ago in some jurisdications in North America, anti-miscegination laws would have forbidden my own marriage. The current exclusionary definition of marriage that the Minister now seeks to uphold has much in common with such laws. Then, as now, progress was only made when bigots were forced to respect the moral rights of loving, consenting adults to make their own marital choices. The Minister has chosen to stand in the way of similar progress. Get out of the way, Minister Cauchon. Get out of the way.
Christopher Young
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