Court stuck in 1867

It’s enough to make you want to get married. The British Columbia Supreme Court decision in the same-sex marriage case is so bad that even those folks who don’t particularly fancy marriage should raise their eyebrows.

Ruling Oct 3 on the case of eight gay and lesbian couples who want to marry, the court rejected the constitutional challenge to the opposite-sex definition of marriage.

According to Justice Ian H Pitfield, the institution of marriage is all about having children, and same-sex couples just can’t do that – at least not with each other.

“While… same sex couples have been accorded many of the rights and obligations previously reserved for married couples, the one factor in respect of which there cannot be similarity is the biological reality that opposite-sex couples may, as between themselves, propagate the species and thereby perpetuate humankind.”

Biological realities? Please. These arguments are old and tired and easily refuted by anyone who has taken Sociology 101. Many straight couples have kids outside of marriage. Many married couples don’t have children. And many, many gay and lesbian couples are having and raising children. Even the Supreme Court Of Canada has recognized that families come in many shapes and sizes, and that having and raising children is simply not the exclusive terrain of marriage.

Unfortunately, this isn’t even the most outrageous part of the decision.

In a standard judicial cop out, Justice Pitfield concluded that these just aren’t the kind of decisions that courts should make.

“The legal nature of marriage is so entrenched in our society that Parliament or legislatures, and not the court, must make the change,” Pitfield wrote.

Now, this is nothing new. The National Post newspaper and the Canadian Alliance Party, among others, have been calling for this kind of judicial restraint for years.

But, read on.

According to Justice Pitfield, it turns out that Parliament doesn’t actually have the authority to change the definition of marriage either. The federal government was given jurisdiction over “marriage and divorce” under the British North America Act in 1867. And in 1867, marriage meant a monogamous, opposite-sex relationship. In a twisted piece of judicial reasoning, he concludes that this means that Parliament cannot change the definition of marriage without a constitutional amendment.

A constitutional amendment? Well, as we’ve seen over the last two decades with the defeat of the Meech Lake and Charlottetown accords, it’s pretty much impossible to pass a constitutional amendment. It’s a complicated process in which too many levels of government have to agree to too many things.

How practical, then. Not only can the courts not change the opposite-sex definition of marriage – no one can. The court has tried to dig a moat around the institution of marriage, not only rejecting the constitutional challenge, but telling the federal government that it shouldn’t even try to mess with this hallowed institution.

This isn’t exactly the kind of judicial restraint and democratic accountability that critics have been calling for. It’s one judge saying that he doesn’t like same-sex marriage, and trying to prevent even a courageous Parliament (admittedly, an oxymoron) from changing the legal definition.

The good news is that at least this part of decision just won’t fly on appeal.

It’s like saying that the federal government doesn’t have jurisdiction to regulate television, radio and broadcasting because these media didn’t exist in 1867. Or that because marital rape wasn’t recognized as a crime in 1867, the federal government doesn’t have the authority to change the criminal law to make it a crime.

The constitution is supposed to evolve over time to include new challenges and new realities, from television to same-sex marriage.

Regardless of what one thinks about the politics of marriage, the marriage challenges should be a slam dunk. From a strictly legal point of view, the exclusion of same-sex couples from the institution of marriage is a violation of the formal equality rights of gay men and lesbians, pure and simple. And the only reason for the exclusion is a history of discrimination. That’s just no longer a legally justifiable reason.

Of course, as the British Columbia case shows, these cases are anything but a slam dunk. Folks with strong views about the heterosexual essence of marriage are still a dime a dozen, particularly amongst the over-40 set. (Poll after poll shows a huge rift between the views of younger and older Canadians on same-sex marriage.)

Marriage may not be everyone’s cup of tea. Some in the gay and lesbian community argue against assimilating into a mainstream, heterosexual institution, and question the political time and energy spent on this issue.

But reading the diatribes by the likes of Justice Pitfield – well, it might make registering at Ashley’s seem more appealing, even for the most cynical amongst us.