Jim Crow Laws for the 21st Century?

By Max Fawcett | August 20, 2003

The discourse surrounding the issue is becoming increasingly charged as the House of Commons vote on legalizing same-sex marriages draws closer. On one side, supporters of the proposed bill are re-tracing the egalitarian arguments that supported the abolition of gender and race based discrimination. Those opposing same-sex marriages choose not to directly contest the battle on those terms, understanding that it is unforgiving terrain. Instead, they pursue a pair of arguments that pay lip service to the vision of equality entrenched in the Charter of Rights and Freedoms but that fundamentally work to undermine it. One claims that the courts have overstepped their boundaries and usurped the role of elected officials in formulating public policy. The other attempts to depict the institution of marriage as a fundamentally religious relationship and thus also subject to the provisions and protections of the Charter. Both arguments are specious and I’m going to show you why.

The criticism that courts are acting where they should not is the easiest to refute. Members of Parliament, be they Liberal, Alliance, or Progressive Conservative, are fond of this argument. They claim that the courts are legislating social policy instead of strictly judicial matters and thus have waded into an area that should be accessible only to elected officials. In an opinion piece published in the Globe and Mail on August 12, Liberal MP Joe Volpe asserted that he isn’t against gay rights but rather the way in which they are being pursued. According to Volpe, “the court’s rightful role is to adjudicate, not legislate.” This is a widely held view among backbench MPs, and one that does have merit.

It just doesn’t have any merit with respect to the decisions of the Ontario, British Columbia and Quebec Courts on same-sex marriage. The courts sent a clear and unambiguous signal to the government with the multiple original and appellate decisions supporting same-sex marriage and rejecting the predominantly religious and moralistic arguments of those opposed to it. Once established, this legal precedent should have acted as a clear signal to our government to move on the issue sooner rather than later.

Of course, legislative inactivity in the face of legal fact is nothing new in Canada. Abortion is still an issue that has not been legislated upon, as the government of the time and ensuing governments decided to leave well enough alone and let the judicial decisions stand in for a decisive and just law. Indeed, the government of Canada has often been complicit in allowing judicial decisions to substitute for decisive legislation. After the 1995 Quebec Referendum the government of Canada referred the question to the Supreme Court in what was and still is largely seen as an attempt to off-load the political responsibility for a difficult issue on the judiciary. That the Supreme Court didn’t bite and sent the matter back to the politicians to decide only serves to further highlight the reluctance with which the Canadian judiciary involves itself in the domain of elected representatives. But they will do it if these officials refuse to do the job themselves, and they’ve rightfully done so on this particularly important matter of justice.

However, the more troubling argument is the one that attempts to appropriate marriage as a sacred religious act and thus something that should be protected from the “whims of the majority.” In his Globe article, Volpe makes an important observation:

The Ontario court offers a different description of marriage: an institution through which society publicly recognizes expressions of love and commitment between individuals. Meanwhile, the definitions of marriage addressed by Parliament and the Supreme Court refer to the structure of a union, not to what partners do in that union. The Ontario court equates marriage with any other social institution. If this were so, then every citizen should have equal access to it. Yet, for most MPs, marriage remains the cornerstone of society, not some government response to the most recent lobby.

It’s not surprising that Volpe was unable to resist characterizing those supporting same-sex marriage as “the most recent lobby,” ignoring the fact that the religious lobby is far more organized and powerful than anything EGALE or its counterparts can put together. But his identification of the court’s definition of marriage as an institution through which society publicly recognizes expressions of love and commitment between individuals is an odd choice. I know he’s trying to imply that it’s the wrong definition, but it seems perfectly acceptable to me. Better that than an inherently religious act, particularly in a multi-ethnic and largely secular society such as Canada. Also, let’s not forget that the historical decision, only recently changed, to let religion define civil customs wasn’t exactly a peaceful practice. That’s why we separated the church and state in the first place. Even today, countries where church and state are the indivisible whole that our secular society worked so hard to pull apart are defined by acts tribal violence and hatred.

However, this all leads to the most sinister argument of them all, which is, not surprisingly, also the most innocent looking. Opponents of same-sex marriage have trotted out “civil unions” as an alternative that supposedly satisfies the demand of same-sex couples for recognition while protecting the institution of marriage. This is a very dangerous proposition, and one that the Minister of Justice Martin Cauchon justifiably shot down at a recent meeting of the Canadian Bar Association as an unsatisfactory compromise. According to Cauchon, “Gays and lesbians in Canada have long-term relationships, and they should have access to marriage. Anything less is discrimination."Unfortunately, Cauchon may not be around to back up his words much longer. After supporting John Manley’s rudderless leadership bid his chances of securing a spot in the cabinet of our Prime Minister-in-waiting Paul Martin are not promising.

Political calculus aside, to create two kinds of partnerships would be like sanctioning a 21st century version of the Jim Crow Laws of late 19th and early 20th century America. In essence, it would be like saying “you can drink water, just not ours, and not from the same fountain.” This new separate-but-equal doctrine made no sense legally, ethically, or morally one hundred years ago and it certainly doesn’t make any more sense today.

Allowing gay and lesbian couples full and unfettered access to marriage will not lead to the downfall of society or the erosion of Judeo-Christian values, largely because they have been eroding on their own account for some time. On an issue as fundamentally important as equality, our politicians must not make any compromises. Anything less than full equality under the law is a direct violation of the spirit and letter of the Charter of Rights and Freedoms, and thus of our constitution. The Charter is a uniquely Canadian document and one that protects the essential goodness of our country, and to betray it in the name of hurt feelings, parliamentary chest-thumping or religious reservations would be a travesty.

Ottawa, August 19th – 1131 w.


  • Max Fawcett

    Max Fawcett is the former editor of the Chetwynd Echo, a weekly newspaper in the small northern town of Chetwynd, B.C. He currently lives in Edmonton, and works as the managing editor of Alberta Venture Magazine.

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