3 min

Simply yes, yes, yes & no?

What the Supreme Court should have said

The Supreme Court Of Canada ruled this week on whether Parliament has the legislative authority to extend the definition of marriage to include same-sex couples, whether it would be constitutional for them to do it, whether clergy will be able to refuse to marry gay and lesbian couples and whether existing opposite-sex requirements of marriage are constitutional.

The expectation is that the Court will say yes, yes, yes and no, citing the Charter Of Rights And Freedoms as requiring the marriage laws to reflect tolerance, respect and equality. (Xtra went to press before the decision was issued.)

The media and the equal- marriage activists are likely now celebrating the decision as momentous and historic or, if it’s no, no, no and yes, there will be the predictable expressions of outrage and disbelief.

But the notion that most queer Canadians are clamouring to get legally hitched has always been dubious. Almost everyone I talk to says they don’t ever intend to marry, even if given the right to do so. Of course, they quickly add that gay men and lesbians who want to marry should have that right. It’s just, well, you know, marriage is a right that’s not right for them personally.

So I will not be among those either cheering wildly or sobbing disconsolately.

I will be looking forward without enthusiasm to the enactment of the draft legislation to which the questions posed to the Supreme Court relate. The draft bill’s preamble affirms that “marriage is a fundamental institution in Canada and the Parliament Of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians.” This is what the equal marriage advocates have been pushing so hard to achieve? It is assimilation of breathtaking proportions. Perhaps I should sob disconsolately after all.

What I will be doing is lamenting a lost opportunity. There are questions that the court was not asked, and which the government and the equal marriage advocates refuse to take seriously. They are the questions annoyingly asked by a purportedly small and radical minority. Throughout the long campaign to achieve equal marriage, their views have been marginalized and dismissed.

When the historic decision comes down, I will attempt to console myself by dreaming, perhaps fantasizing of how different things might have been. It involves the Supreme Court addressing the right questions and paving the way to liberate us from moralistic state regulation of our close personal relationships.

The Supreme Court should have been asked, “Do there need to be marriage laws at all?” I would cheer wildly if the red-robed justices ruled that the state could get out of the marriage business altogether. Legally privileged marriage should be abolished.

Another question: “Could the state stop giving special legal status and privileges to conjugal relationships, whether married or common-law?” How delightful it would be if the court said yes. It would open the way to recognize relationships for the purpose of conferring rights and benefits based on economic and emotional interdependence. The test would no longer be the ludicrous requirement that you must be living with someone with whom you have sex. Or living with someone with whom you did at one time have sex but don’t any longer, although you still call them spouse, partner, wife or husband.

And there is that thorny question of religious freedom versus an individual’s rights in the Canadian Charter Of Rights And Freedoms, the question that everyone except the religious right so gingerly tiptoes around. The Supreme Court has been asked to address the question of whether freedom of religion guaranteed under the Charter protects religious officials from being compelled to perform a same-sex marriage contrary to their religious beliefs. Here’s a much better question that should have been asked: “Is the religious freedom guaranteed under the Charter infringed if marriage reverts to being a purely religious ceremony without any legal status?” I would be thrilled when the court said no.

Sadly, we will not know the answers to these questions. The opportunity to pursue a legal framework in which to forge fundamental social change by abolishing legally privileged marriage has been lost. It will be a long time before we get another chance, if we ever get another chance. What a shame.

* Tom Warner is a founding member of the Coalition For Lesbian And Gay Rights In Ontario.