One of my employees gave me a gentle prod the other day. He knows that I have strong opinions on the same sex marriage debate, and he commented that he found it funny that a straight guy would care so passionately about gay and lesbian rights. Purely and simply I care about rights, which is something all Canadians should care about.
It’s a complex issue, no doubt, but it really boils down to a key tenet — everyone has a right to equal treatment and equal benefit from the law in our country.
Many arguments have been advanced by various groups to oppose same-sex marriage. Two in particular need critical examination.
1. Same-sex marriage will lead to the legalization of (take your pick) polygamy / bestiality / pedophilia / incest.
Although it’s illegal to have multiple wives, or a sexual relationship with an animal, a child, or your sister in Canada, it’s not illegal to be homosexual here. It’s an insult to the ordinary persons intelligence (not to mention gay people) to equate a legal, loving, and equal gay relationship with criminal activities like bestiality, and most Canadians can see right through this argument. The changes in the law make marriage open to any two consenting adults, rather than just two consenting adults of the opposite sex. Let me repeat that — two consenting adults. Animals, and children are neither consenting, nor adult. No threat there. Polygamists are more than two adults. No threat there either.
Gay and lesbian couples have enjoyed most (if not all) of the benefits that married couples enjoy from the law already. They have inheritance rights, the right to adopt children, and so on. Gay and lesbian families also have the same obligations to support each other, and their children. Just like any ordinary family. And now they have the right to say that they’re married.
Suppose the government’s proposed legislation passes then. Is there a risk that the Charter guarantee of religious freedom be used to over-rule the legal prohibition against polygamy? No.
Polygamy has been studied to death by numerous groups, and the resounding conclusion is that polgyamy deprives women of their rights– the rights that our charter guarantees them. The United Nations committee on the elimination of discrimination against women states that "polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences that such marriages ought to be prohibited." Canada is a signatory to this convention. The UN Human Rights Committee states "Polygamy violates the dignity of women. It is an inadmissible discrimination against women … it should be … abolished wherever it continues to exist." Canada was also a signatory to the UN covenant that created this organization. As Canadians we have declared on numerous occasions that polygamy is a violation of women’s rights, and that we oppose such violation.
But what about the religious freedoms argument? One of the most powerful clauses of our Charter is the very first which states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In other words, Charter rights aren’t absolute. If claims of Charter rights can’t meet the test of reasonable justification, then those rights do not exist. As a nation we have declared that polygamous relationships are unequal, abusive and deprive women of fundamental rights. There is no right, in our country, to have multiple wives, and it’s unlikely to ever exist.
2. Same-sex marriage is not a human right. This is a thought provoking assertion, given that the courts have granted most gay rights over the past two decades in the context of human rights. So, what is the definition of a human right? This turns out to be an excellent question. We have a made in Canada definition in the Canadian Human Rights Act of 1976.
The preamble to this act reads: — The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. —
Section 5 of the Human Rights Act reads: — 5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. —
Denying "services available to the general public" on the basis of sexual orientation is therefore a discriminatory practice, and within a Canadian societal context, a violation of Human Rights. The legal framework of Canada, which defines marriage, is a service provided by the Government. Further to that point, Section 66 of this act explicitly states that it shall be "Binding on Her Majesty in Right of Canada", ie. The Government. Despite what Stephen Harper claims, it’s hard to understand how it is possible to enact one set of laws for gay people, and another for straights, or to exclude gay people from one set of privileges in law (marriage), without encouraging a Human Rights Act challenge, or a Charter challenge.
For those interested in further reading:
- The Canadian Charter of Rights and Freedoms. Go ahead… it’s an easy read.
- The Canadian Human Rights Act.
- From the Library of Parliament — the entire history of the evolution of same sex rights in Canada. It’s fascinating reading, as it shows how successive court cases brought by gay people forced reticent parliamentarians to "harmonize" the laws of the land with rights won in the courts.
- Also from the Library of Parliament — a history of Charter challenges in Canada. Again, fascinating reading since it shows how the court evaluates charter challenges.
And if you believe as I, and many of my friends do, head over to www.vote4equality.ca and send your MP a letter. It’s easy, and it will take less than one minute of your time.