BC COURT ON MARRIAGE

Media Neglects Key Point in B.C. Supreme Court decision in Egale vs A.G. Canada

Marriage as an institution reserved for a man and a woman was strongly endorsed by a B.C. Supreme Court justice this past week. Unfortunately, few of us were informed of this fact.

National media outlets, including the National Post, the Globe and Mail and the Toronto Star, reported on October 4 that the application by 8 homosexual partners and the gay lobby group Egale was refused. Each report highlighted Mr. Justice Ian Pitfield's October 2 ruling that denial of a marriage licence to gay couples may have breached their rights to equality under s. 15 of the Charter of Rights and Freedoms, but that this denial was demonstrably justified pursuant to s. 1 of the Charter.

Activist groups would have you believe the issue is simple, a mere extension of equality rights. John Fisher of Egale was quoted, "There has been some progress in...that a court has recognized that the denial [of marriage to homosexuals] violates the equality guarantees of the Charter."

Unfortunately, the press focused on the alternative reasons of the decision. These reports missed the primary ruling of the Court. In a strong legal argument, the Court held that the proposed constitutional change requested by the applicants would require a constitutional amendment to the definition of marriage itself, not through a court challenge, or an act of the federal Parliament.

The media cannot hide behind an excuse that the decision was highly technical, or that it required a lawyer to understand. Moreover, these findings were not buried in the decision's 85 pages, but were summarized in the first 13 paragraphs of the ruling.

In the words of Mr, Justice Pitfield:

"Under Canadian law, marriage is a legal relationship between two persons of opposite sex. The legal relationship does not extend to same-sex couples.

"Marriage was defined by common, or judge-made, law. Judges should only change the common law in incremental steps. A change to define marriage as the legal union of two individuals, regardless of sex, is not incremental.  The change would have broad legal ramifications and would require, at the least, rules to govern the formation and dissolution of same-sex unions. Any permitted changes to the common law of marriage must be made by legislation.

"Parliament may not enact legislation to change the legal meaning of marriage to include same-sex unions. Under s. 91(26) of the Constitution Act, 1867, Parliament was given exclusive legislative jurisdiction over marriage, a specific kind of legal relationship. By attempting to change the legal nature of marriage, Parliament would be self-defining a legislative power conferred upon it by the Constitution rather than enacting legislation pursuant to the power. Parliament would be attempting to amend the Constitution without recourse to the amendment process provided by the Constitution Act, 1982. Alternatively, Parliament would be attempting to enact legislation in respect of civil rights exclusively within the legislative authority of the province.

"'Marriage', as a federal head of power with legal meaning at confederation, is not amenable to Charter scrutiny. One part of the Constitution may not be used to amend another."

The Court went on to pursue a Charter analysis, in an alternative argument:

"Alternatively, if the legal relationshhip of "marriage" is subject to Charter scrutiny, its legal character does not infringe the petitioners' fundamental freedoms of expression or association, their mobility rights or their rights of liberty and security of the person, but does infringe their equality rights.

"The infringement of the petititoners' equality rights is a reasonable and demonstrably justified limit in a free and democratic society and is saved by s.1 of the Charter.

The impact is clear. In the view of Mr. Justice Pitfield, and numerous groups who were given the opportunity to present arguments before the Court, including the Catholic Civil Rights League, the Evangelical Fellowship of Canada, Real Women, and Focus on the Family, a court cannot change the law to allow homosexuals to marry. The federal Government together with 7 of 10 provinces representing 50% of the population will need to approve of this change, since Parliament alone cannot amend the Constitution of Canada.

In a refreshing analysis which suggests rather forcefully that major societal changes should be pursued through debate and persuasion of citizens, Mr. Justice Pitfield has urged the proponents of such changes to advance their cause through the political process of securing the support of Canadians through legislative action. The task may be more methodical, but the process cannot be overwhelmed through the shortcut of judicial fiat.

Although our constitution may be regarded as a living tree, its roots cannot be cut off by the actions of individual judges or appellate courts.

The supporting reasons for this analysis are addressed in great detail in the course of the decision, for which some excerpts are worth noting.

"The importance of the essential character of marriage to Canadian society is a matter of common sense, understanding and observation," Pitfield wrote.

"There is nothing that should compel the equation of a same-sex relationship to an opposite-sex relationship when the biological reality is that (the) two relationships can never be the same.

"That essential distinction will remain no matter how close the similarities are by virtue of social acceptance and action."

"No means exist to equate same-sex relationships to marriage, while preserving the fundamental importance of marriage to the community."

This is a clear affirmation of the fundamental cultural importance of the institution of marriage. Despite the current cultural aversion to marriage, it remains the cornerstone of the family, and civilization as we know it.

Sadly, the Canadian media shunned advocates of family and marriage, in favour of seeking the views of Egale and its supporters. As a result, news reports suggested that the decision represented a "first step" or a small victory in the great march toward their goal of social re-engineering.

The media coverage and support of same sex marriage during the lead up to the arguments in this case were abundant. Can we expect any fairness in their future coverage, even if it may be limited to allowing applause for one judge's long overdue wake up call?

Philip Horgan, LL.B.
Vice-President of the Catholic Civil Rights League
The Catholic Civil Rights League was part of the Interfaith Coalition, an intervenor in Egale v. the Attorney General of Canada. Philip Horgan is a Toronto lawyer at the firm of Costigan, Horgan, Markson and MacDonald.