Judges cannot change reality.

In the course of an afternoon, three judges of the Ontario Court of Appeal reversed millennia of law and custom by ordering same sex marriages. The Government of Canada then revealed its subservience to brazen judicial activism by asking the Supreme Court of Canada what to do next.

These two events have ignited a more heated debate than our judicial masters envisaged. The debate has penetrated even that cradle of somnolence, the Liberal Party caucus.

However, three questions require clarification. First, who will decide? Second, what will they decide? Third, what effect will their decision have?

Who decides?

Well, if Canada had any pretence to being a democracy, the electorate, through their parliamentary representatives, would decide. But Canada is not a democracy, and hasn't been since 1983 when the Charter of Rights became the supreme law of the land; since the Charter is not self-interpreting, its interpreters--our judges--became de facto rulers.

It is judges who will decide even such an inherently non-legal question as: Who can marry? If having decided that men can marry other men, judges should decide next that I can marry my daughter, or my beloved golden retriever, who shall say them nay? In theory, Parliament could decide to invoke section 33, the so-called "Notwithstanding" clause, but neither our current prime minister, nor his putative successor, Paul Martin, will do that.

When the Charter first came into effect, I was pleased that section 33 allowed for a parliamentary override; now I regret the inclusion of s. 33. Its existence has obscured the extent to which we have forfeited democratic self-government; its existence blinds Canadians to who their rulers really are.

And, please, spare us any wise saws about how judges are just doing their duty to enforce the Charter. The Charter is silent about gay rights and sexual orientation. Deliberately silent. Constitutionally-enforceable gay rights are a judge-made invention from beginning to end.

So, whether the Liberal caucus splits 50/50 on proposed legislation; whether Paul Martin (not for the first time) swallows himself in the face of shifting public sentiment; whether two thousand or two million Canadians rally on Parliament Hill-all this is irrelevant. If you want to know how Canadians will live, ask Chief Justice Beverly McLachlin and her eight un-elected colleagues on the Supreme Court of Canada. They decide. They are the law.

Second, what will they decide?

One needs no crystal ball to know that Canadian courts have accepted equality demands hook, line, and sinker. So, forget about "registered domestic partnerships" and any other formula devised to create a "separate but equal" marriage for gays. It won't happen. Canadian courts, usually so keen on fine points of nuanced distinction (that is their "high-level, specialized, intellectual work" that Chief Justice McLachlin recently praised) are absolutists when it comes to equality claims.

Some people contend that the courts are just adapting the law to public opinion. Not so. The courts are committed to changing public opinion to conform to egalitarian dictates, whether there is public support or not. So, depend upon it, gay rights activists will continue to get their way in the Courts. If they demand marriage, then marriage they shall get.

Third, what's the effect of Court decisions?

This is the most interesting question. For the truth is that even judicial power is limited.

The Supreme Court of Canada may declare that the sun shall rise in the west and set in the east; it can even compel us to say that it does. But it will not alter the sun's daily trajectory. A Supreme Court judge may declare (as indeed one of our Supreme Court judges did) that all men are rapists, but it does not make it true. Even judges cannot alter that reality which they increasingly fail to acknowledge the existence of: namely, truth or natural law.

The plain fact is that marriage means--and always and exclusively has meant--the union of opposite sexes. No judicial pronouncement can change that. Whatever Bob and Ray may be, they cannot be married, no matter what the Supreme Court says. By judicial fiat Bob and Ray may have inherited the word marriage, but not the meaning.

Ian Hunter is Professor Emeritus in the Faculty of Law at Western University, London, ON. He is also a contributer to our new book Judicial Activism: A threat to democracy and religion, advertised in this issue.