Arrogant judicial power.

On November 25, the National Post carried a column by David Hale headed "The woman who cost John Kerry the election." He argued that one woman, Margaret Marshall, Chief Justice of Massachusetts, who urged her court to introduce homosexual "marriage" earlier this year, was largely responsible for Kerry's defeat. The decision of the Massachusetts court to give homosexual couples the same marital status as heterosexual couples provoked outrage among millions of Americans. Eleven states held referendums on the question, and even the liberal state of Oregon voted down the proposal by 57% to 43%. Ohio voted it down by 68% to 32%. Election day polls indicated that 22% of those voting did so on the basis of moral laws, and without the issue of homosexual "marriage" persuading the "fundamentalists" to vote, the popular vote would have been a dead heat.

The attempt by Judge Marshall to use her judicial power to promote a concept that would never have survived the vote of either a legislature or a referendum ensured a popular revolt. Hale writes, "The American people do not want judges to control issues as fundamental and basic to the institutions of their society as marriage. Her decision to use the court's power to promote an issue as controversial and divisive as homosexual marriage was regarded as arrogant and presumptuous."

Compare USA to Canada

The contrast between the way the Americans have dealt with same-sex "marriage" and what Canadians have done is very striking. The American people spoke out; the Canadian have not been allowed to do so. The courts in seven provinces have taken it upon themselves to decide that homosexual "marriage" is here to stay; the Prime Minister has made it clear that when the question is referred to the House of Commons for debate and decision it will only be a matter of time before same-sex "marriage" becomes the law of the whole country. After all, seven provinces have already decided in favour of same-sex "marriage", haven't they?

The answer is, "No." The people of these seven provinces have not signified whether they approve or disapprove; but their voice apparently does not matter. They have not been consulted, and they are not going to be consulted. In these seven provinces, panels of activist judges like Margaret Marshall herself, have arbitrarily decided that the ideology they prefer should prevail. In Saskatchewan, one lady judge, Madam Justice Donna Wilson, decided on her own that the traditional definition of marriage as a union of one man with one woman is unconstitutional because it discriminates against homosexual couples.

Prime Minister Paul Martin has made a point, in an interview with the CBC, of insisting that he is a faithful Catholic, rock-solid in his faith, but like the other Catholic Prime Ministers from Trudeau on, he has mastered the art of doublethink. In Orwell's book Nineteen Eighty-four, Winston Smith had to undergo a painful process of conditioning before he became expert enough in doublethink to agree with the Party that two and two are five. Our politicians are much more malleable; without any such process of conditioning, they are able both to accept and reject the truths of the Catholic faith at the same time. After all, the right of homosexuals to marry has been guaranteed by the Charter, hasn't it?

In Britain, homosexual acts were forbidden by law, until the Wolfenden Committee presented its report on homosexual and other offences to the British government in 1957. Basing its thinking on utilitarian principles, it decided that if homosexual behaviour between consenting adults was removed from the criminal code, there was no evidence that serious harmful effects on society would result. It decided that there was no evidence it would have such an effect; consequently the ban on homosexuality was removed in 1967.

Following the Wolfenden line of reasoning, Trudeau's Canadian Omnibus Bill, introduced in 1968 and piloted through the House of Commons by then Justice Minister John Turner, another Catholic, in 1969, removed the ban on homosexual conduct. Almost on the heels of this legislation, the evidence began to mount that homosexual acts between males were not nearly so benign as had been imagined: these acts were responsible for the spread of a loathsome disease, AIDS.

Where does that leave us?

1. The Charter does not create rights. In the 1988 Morgentaler case, Justice Bertha Wilson contended that third wave feminism made a right to abortion part of its program for action, in the long run, however, she accepted Justice McIntyre's argument that the Supreme Court could not fashion a right out of whole cloth--and, like the rest of the judges, she agreed that protection of the child in the womb was a legislative option.

2. Two votes in the House of Commons went in opposite directions. In the first, in 1998, the MPs obviously had no idea that there was such a thing as samesex "marriage," because they overwhelmingly rejected the idea. Five years later in 2003, they were in favour of it. The inference must be that someone in the Prime Minister's Office told his Liberal caucus how they were supposed to vote the second time around, and like good sheep they bleated when they were told to do so.

3. A right is a concession or privilege acknowledged in a civil society over a long period of time. It cannot be something for which a pressure group like EGALE has been campaigning for a month or two, or a year or two.

4. Since male homosexual relations involve sodomy (which in turn, involves AIDS), it is hard to see how they could be regarded as a basic right.

5. The 2004 Saskatchewan court decision (as the earlier June 2003 Ontario Court of Appeal ruling) indicates the nature of the problems into which same-sex legislation gets us. Justice Donna Wilson decided that marriage in its usual form is unconstitutional because it discriminates against same-sex couples. Does she mean to invalidate all the heterosexual marriages that have taken place over the centuries? Can they really be dismissed with a wave of the hand? How far can judicial arrogance go?

6. The American experience is not decisive for us. But it does indicate that the idea of same-sex "marriage" is foreign to us in North America. That "rockhard" Catholic Paul Martin has an easy way out of the dilemma that the problem poses for him. All he has to do is allow a free vote--a vote on which not even the Liberal cabinet is compelled to vote in favour of same-sex "marriage." The Bloc Quebecois will vote in favour of it, the Conservatives will vote against it, a handful of Liberals will vote for it, but the majority even of Liberals will use their good sense and vote the measure down.

David Dooley is an associate editor of Catholic Insight. He is English Professor Emeritus of Saint Michael's College of the University of Toronto.