The appeal is about the
recognition and protection of human dignity
(2).
· Supreme Court
(S.C.) Justice lacobucci has stated that "human dignity means
that an individual or group feels self-respect and self-worth
(emphasis added) (3).
· Marriage is one
of the most significant forms of personal relationships (5).
· Same-sex
couples are denied access to this institution "simply on the
basis of their sexual orientation" (6).
· Sexual
orientation is an analogous ground that comes under the umbrella
of protection in S. 15 (1) of the Charter. [Analogous means that
it is similar to e.g., colour or race.] See S.C. Justice Peter
Cory in M v H [1999] at 52-53:
"In Egan
v. Canada [1995] ... this Court unanimously affirmed that
sexual orientation is an analogous ground to those enumerated in
s. 15 (1). Sexual orientation is "a deeply personal
characteristic that is either unchangeable or changeable only at
unacceptable personal costs" (para. 5). In addition, a
majority of this Court explicitly recognized that gays, lesbians
and bisexuals, "whether as individuals or couples, form an
identifiable minority who have suffered and continue to suffer
serious social, political and economic disadvantage" (para.
174, per Cory_ J.; see also para. 89, per L'Heureux-Dub~
J.).
"(8)
Historically, same-sex equality litigation has focused on
achieving equality in some of the most basic elements of civic
life, such as bereavement leave, health care benefits, pensions
benefits, spousal support, name changes and adoption. The question
at the heart of this appeal is whether excluding same-sex couples
from another of the most basic elements of civic life a marriage a
infringes human dignity and violates the Canadian
Constitution."
With respect to
the Charter's equality clause [s. 15 (1)] the ruling proceeded as
follows:
1) It first
asserts that the existing law "discriminates" [Editor:
note use of term; it does not acknowledge the notion of
"just/unjust" discrimination. Discrimination is always
evil].
2) It notes that
same-sex groups have already been recognized as a disadvantaged
group by the government and that certain remedial measures have
already been undertaken (66). Same-sex people are a bona fide group
therefore.
3) It notes that
the common law's definition of marriage makes distinctions, by
excluding same-sex couples [Editor: It also excludes others ...
but presumably these have not as yet established themselves as bona
fide groups].
4) It re-affirms
that sexual orientation is analogous to the other S. 15 protected
categories such as race. [Editor: See above under Egan v.
Canada. In other words, homosexuals are "born that
way," just like people who are black, white, or brown by
birth.]
5) The Court
fleetingly describes the nature of discrimination in daily life.
It defines respect for human dignity to mean that an individual
feels self-respect and self-worth [Editor: This is a subjective
notion therefore, independent of any objective standards].
6) It asserts the
existence of discrimination [Editor: no proof is provided]. Are
homosexuals sometimes harassed? Yes, says the Court (32+ 83).
7) It then defines
sexual orientation as more than simply a "status." It
involves choosing a partner (83).
8) The judges then
examine some further aspects of what they call 'contextual'
factors:
a) whether the
"impugned" law takes into account the views of same-sex
couples (91);
b) whether the
existing law justifies the exclusion of same-sex couples;
c) whether the
existing law accords the needs of same-sex couples.
Quoting the
Court's own previous rulings, the judges easily conclude that the
answer to these three aspects was No.
9) Another
self-made "contextual factor" is, first, whether
opposite-sex couples are more advantaged under the present law
than same-sex couples. Clearly, the answer is yes because same-sex
couples are excluded.
10) Second,
whether, after the federal government passed the Modernization
of Benefits and Obligations Act in response to the M v H
(1999) case, same-sex couples had their needs supplied? The three
judges say No. Even the economic benefits are not yet equal, they
say and, furthermore, to equate the equality provision with
economic benefits only, is to take too narrow a view. What is at
stake here is that "same-sex couples are excluded from a
fundamental societal institution -- marriage" (107).
11) This reasoning
brings the argument to its (circular) conclusion: same-sex couples
are excluded from the present law and from the institution of
marriage and that won't do because it makes them feel unworthy and
second-rate. The Court puts it this way:
"The societal
significance of marriage, and the corresponding benefits that are
available only to married persons cannot be overlooked. Indeed,
all parties are in agreement that marriage is an important and
fundamental institution in Canadian society. It is for that reason
that the claimants [the six "same-sex couples" who
brought the appeal] wish to have access to the institution.
Exclusion perpetuates the view that same-sex relationships are
less worthy of recognition than opposite-sex relationships. In
doing so, it offends the dignity of persons in same-sex
relationships (107)."
Consequently, the
Court goes on to say, we declare that the definition of marriage
as "the voluntary union for life of one man and woman to the
exclusion of all others" violates s. 15 (1) of the
Charter" (108).
When to
implement?
There was one more
thing left to do: when could this ruling be implemented? The
original three judges who had ruled in favour of same-sex couples
on July 12, 2002, Heather Smith, Robert Blair and Harry LaForme,
had given the federal government two years to come up with new
legislation.
However, LaForme
had favoured the immediate amendment by the Court of the existing
definition of marriage (by substituting the words "two
persons" for "one man and one woman"), but was
overruled by his two colleagues (17).
The three Appeal
Court judges, McMurtry, MacPherson and Gillese, in another eight
pages of quotes from the Supreme Court of Canada's recent
judgements favouring homosexuals, decided that a change was a
"pressing and substantial objective." Why? "The
court," they quoted from Chief Justice Dickson in Oakes (136):
"must be
guided by the values and principles essential to a free and
democratic society which I believe embody, to name but a few,
respect for the inherent dignity of the human person, commitment
to social justice and equality, accommodation of a wide variety of
beliefs, respect for cultural and group identity, and faith in
social and political institutions which enhance the participation
of individuals and groups in society .... "
Part ill:
Analysis and Comment
I have already
indicated inside the brackets where the problems are. Let us
begin, however, with the most controversial aspect -- which is the
very foundation for all Canadian court cases which have been
favourable to the homosexual cause since Egan v. Canada (1995),
namely, the assertion that homosexuality is analogous (similar) to
the other items in the Equality Clause S. 15 (1).
Section 15 (1) of
the Charter reads as follows:
"1. Every
individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age, or
mental or physical disability.
"2.
Subsection (1) does not preclude any law, program, or activity
that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national, or ethnic origin, colour,
religion, sex, age, or mental or physical disability."
All items
mentioned under section (1) -- with the exception of religion --
are characteristics of a physical nature acquired at birth.
Homosexuals have never seen themselves as a religion. But it has
been a point of homosexual activists to argue that they are born
that way. Hence the conclusion by Mr. Justice Peter Cory in Egan
v. Canada that their case is analogous.
This proposition
is merely an assertion and one, not only, without scientific
foundation, but contrary to some forty years of investigation.
In 1991, for
example, there was much ado about a Mr. Simon LaVay, a scientist
who claimed to have proven that a certain part of the brain was
slightly different in homosexuals from that of non-homosexuals. It
turned out that he himself was homosexual; that he had based his
"finding" on an extremely small sample of 35 cadavers;
that he did not know whether the sixteen "heterosexual"
cadavers had really lived heterosexual lives even when six of them
had died of AIDS; and that he himself did not really claim that
homosexuals are born that way. It was recognized as a case of
self-pleading.
The truth is that
after half a century of trying, the claim that homosexuals are
created by God and that, therefore, they deserve equal rights with
normal people, is vacuous. Check the web site:
. There you will find eight pages of scientific evidence answering
the question: "Are homosexuals born that way?" There is
no evidence that they are!
The Supreme Court
verdict in Egan accepted the propaganda of the homosexuals
instead of consulting the scientific evidence to the contrary.
They based their subsequent rulings on these incorrect views.
Similarly, the
assertion that sexual orientation "is either unchangeable or
changeable only at unacceptable personal costs" is contrary
to the facts. When they have the will to do so many homosexuals
have been able to overcome this tendency or to control it,
especially with the help of professionals.
Let us now follow
the ruling in its various parts listed above as numbers 1 to 7.
Re 1: the use of
the word "discrimination" no longer means what it used
to mean, namely the ability to distinguish between one kind or
another. For example, a wine connoisseur is supposed to have a
discriminating tongue to recognize one wine from another. Today,
the term discrimination is entirely pejorative because of the use
made of it by, among others, homosexual activists in their claims
to justify their lifestyle. Today we are forced to speak of just
and unjust discrimination, with the note that
homosexual
activists -- who have come to call themselves "gays"
ruining another good word while effectively disguising their true
condition -- refuse to acknowledge that "just
discrimination" can apply to them.
Re 2: To note that
"same-sex groups" have already been recognized as a
disadvantaged group and therefore should be regarded as bona
fide is disingenuous. Why? Because governments (federal,
provincial or municipal) have all been forced to pass new economic
or legal statutes in the last few years by Courts or Human Rights
Commissions or Tribunals who threatened them or individuals with
legal or financial penalties.
Re 3: Yes,
the traditional definition of marriage makes distinctions
excluding every one, other than one man and one woman pledging
allegiance for the remainder of their lives. By destroying that
definition any two persons can now claim marital rights as soon as
our ever-"evolving" and widening mores decide it is
acceptable. Moreover, what is so sacred about two persons? Why not
more?
Re 4-' The June
10, 2003 Ontario Court ruling re-affirms that sexual orientation
is analogous to race and colour. But, again, no scientific
evidence was presented during the trial of the original Court
which issued its verdict on July 12, 2002. It was based on hearsay
and unchallenged and unexamined claims only. No evidence was
provided before the Appeal Court either.
Re 5: Human
dignity is now seen as something purely subjective on the say-so
of Mr. Justice lacobucci, namely, that a person is discriminated
against when he or she feels less self-worthy. But is there anyone
who does not feel in some moment or other that his or her dignity
has been injured? Are we now making laws on the ever-shifting
sands of personal feelings? Apparently so.
Re 6: The
Court signifies the existence of "discrimination"
against homosexuals. But, again, no evidence was presented at
trial, leaving the Court to assert it without proof. There is no
evidence to show how much or how little, how widespread or how
serious these acts of "discrimination" are, or how many
acts of violence are committed by homosexuals against one another.
Fie 7: Here
the Court attempts a definition of 'sexual orientation' by saying
it is more than a "status" and that it involves choosing
a partner. But
the truth is that
"sexual orientation" has never been defined by anyone.
The homosexual community itself includes a large variety of people
under that title, supposedly all of whom must be protected,
including transsexuals, bisexuals (whoever they are), and men
loving boys loving men, and women loving girls loving women.
Here again the
Court overlooks the difference between the condition and the act,
a distinction universally accepted outside the "ga-y"
community and, indeed, by many homosexuals themselves. In the end,
homosexuals like other people, remain intellectually free agents.
They are not robots controlled by unseen agents, nor animals
controlled by Darwinian determinism. That is why the Catholic and
Christian community teaches one to "hate the sin but love the
sinner." These are two separate entities. Anyone who denies
this does a grave disservice to society as indeed the Canadian
courts have done from Egan v. Canada in 1995 to Halpern
et al in 2003.
Judicial
Activism:
A threat
to democracy and religion
[Esssays by:
Cauchi, de Valk, Dooley, Foy, Hunter, Landolt, Leishman, McBride,
Stock.] General Editor: Alphonse de Valk
Toronto,
2003, Life Ethics Information Centre (104 Bond St., Third
Floor, Toronto, ON, M5B 1X9; Phone: (416) 204-9601; Fax: (416)
204-1027).
168 pages;
$19.95 each + $2.50 shipping
Summary
Judicial activism
has proved a disaster for the country. Parliament must step in,
remove the judges' ability to "read" their opinions into
law, and halt the proposed legal destruction of marriage. It
should halt the elevation of homosexual unions to valid family
models as Chief Justice Beverly McLachlin did in Dec. 2002.
Parents, teachers, schools and Canadian citizens in general do not
accept same-sex unions as valid role models.
What to do? As
Professor Hunter put it above (p. 141), a showdown between Church
and State may now be inevitable. "This is not something
Christians should hope for," he said, "but it is
something for which Christians
need to
prepare." Perhaps we should first have a showdown between
Canadians who oppose all judicial activism and the Liberal
government of Jean Chr~tien (and that of his possible successor,
Paul Martin), who have promoted and abetted the Courts in their
unacceptable course of action for so many years.
And yes, let's
face it, the Charter of Rights and Freedoms will have to be
re-examined and, if necessary, abolished. There was no need for a
Charter in the first place. Today, Parliament is in process of
losing its governing powers while unelected judges invent new laws
as they see fit, whether it concerns pay equity, or marijuana, or
abortion, or same-sex "marriage," or school children.
The same-sex union
case illustrates what happens when secular ideologues insist on
the separation of law and morality. With this abstract concept in
mind they first destroy the idea that society should have a common
morality because, they say, truth is unknowable. Every group will
be allowed to pursue its own religious or secular morality which,
of course, must be of private concern only. Tolerance will reign.
All will be equal.
Alas, a vacuum
inevitably will give way to surrounding pressures. Having
destroyed the common (Judeo-Christian) morality of the land,
groups wi!! press for their convictions to be accepted, none more
so *~'"'-~,,~,, those who have turned vice into virtue and
virtue into vice. Meanwhile, the judges of the country declare
that national law has priority over religion and is to be
respected above all. And so begins the tyranny of law, now
independent of either philosophy or religion, and therefore,
intrinsically self-contradictory and incapable of renewing itself,
as precedents, not truth, demand obedience and homage from all.
All this is now visible in Canada.
