The federal government has until mid-August to appeal last week's Ontario Superior Court ruling legalizing homosexual marriage. It should do so. Marriage is too crucial to society and the debate over including same-sex couples within its scope is too controversial to permit the institution to be revolutionized by a mid-level court with jurisdiction in just one province. Even if homosexuals are to be granted the imprimatur of state marriage, the sanction must come, at the very least, from the nation's highest court. Better, it should come from Parliament, or best, from Canadian voters directly in a nationwide referendum.
Same-sex couples can hold commitment ceremonies and call them whatever they choose, and the Supreme Court has already ruled that they must have equal benefits, pensions and separation protections as common-law couples. The acceptance of gay and lesbian marriage is thus only a symbolic gain, and it would be much better for that symbolism to be agreed legislatively, rather than judicially. Parliament could also, until that day, provide a legal domestic partnership agreement through which homosexuals might solemnize their partnerships.
Advocates of homosexual marriage bristle at the idea of submitting what they believe is a basic civil right to approval or rejection by the majority. Canada has the Charter of Rights and freedoms, they contend, to protect minorities from such tyranny. And the courts are there to ensure such protection. True. But Canada also has Parliament to protect democracy from the caprice of crusading judges and narrowly focused interest groups, who seek to achieve in court what could only be won with great difficulty in the legislature.
When Parliament was drafting the Charter in 1981, it or its committees seven times (out of seven) turned down requests to include sexual orientation as a protected category, along with race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Homosexual rights are now protected in the Charter only because the Supreme Court read them in later, over the expressed will of Parliament. Similarly, the Ontario Superior Court has now ignored the will of Ontarians' deputies. In 1994, MPPs overwhelmingly rejected a law -- it never made it past first reading -- that would have altered the definition of spouse to include homosexuals, a first step towards permitting marriage and adoptions by same-sex couples. Almost no legislation in the decade before or since generated so much public debate. Catholic bishops preached against it. Evangelical churches circulated extensive petitions. And Ontarians by the tens of thousands, independent of their churches, deluged MPPs' offices with letters, faxes and telephone calls protesting the move. Still, the three-judge panel that last week ruled unanimously that Michael Leshner and Michael Stark, a Toronto couple, should be permitted to marry, imposed their preferences over and above the democratic will of Ontarians and their legislators.
Marriage is a social bedrock and if it were destabilized by judicial experimentation, all Canadians -- heterosexual as much or more than homosexual -- would be harmed. It is astonishing that it needs to be stated -- but such is the case -- that the majority has the right to be consulted in advance when their interests are at stake. Politicians should use the notwithstanding clause which, unlike group rights for homosexuals, is actually in the Charter, to delay gay marriage until it can be decided democratically. If Canadians approve this move in a nationwide vote, they are much more likely to accept fully the social revolution that it will presage.
Homosexuals pressure groups frequently cite polls that show Canadians favour permitting same-sex marriages by a margin of three-to-one. If this ratio is true, gay and lesbian marriage will be triumphantly approved by the vast majority. Canadians must participate in the creation of this new right -- and it is a new right, not existing under the Charter -- rather than having it foisted on them by judicial fiat.
It may seem cruel to ask same-sex couples to wait longer for their right to marry, but if both their rights and Canadian democracy are to be preserved, the request is essential.
TORONTO and EDMONTON - Alberta will never allow gay marriage, and if Ottawa drafts such a law, the province will invoke the notwithstanding clause of the Charter of Rights and Freedoms to protect the "sanctity of marriage" between a man and a woman, Ralph Klein, the Premier, said yesterday.
"It's the only circumstance under which the notwithstanding clause would be used without a referendum," he said. "And it would be automatic. So it simply will not happen in this province, because the sanctity of marriage and the solemnization of marriage, under the Marriage Act, is written law, that it is between a man and a woman."
He added: "That's not to say we won't do our part to protect gay rights. But marriage is where we draw the line."
Mr. Klein was responding to an Ontario Superior Court decision last week that said banning same-sex marriage violates constitutional rights. The court has given Ottawa two years to change the definition of marriage as "one man and one woman" so that homosexuals may legally marry. Last month, the Quebec government passed the Civil Union bill, which allows same-sex couples to marry.
Mr. KIein said he expects the federal government to challenge the ruling, in which case Alberta's position would be moot. "But if for some reason the Supreme Court of Canada, or whatever court prevails, upholds the provincial court ruling and it extends to, say, Alberta, then of course we will invoke the notwithstanding clause."
The same day Mr. Klein was making his remarks, two Montreal men became the first same-sex couple in Quebec to be married under the province's new Civil Union Bill. In Ontario, however, two men were denied a marriage-licence application, despite the court ruling last week.
At the Montreal Courthouse yesterday, Roger Thibault and Theo Wouters exchanged rings and wedding vows after a brief ceremony surrounded by family, friends and a phalanx of media. A deputy clerk then declared them legally joined in a civil union, under the provisions of Bill 84, passed unanimously by the National Assembly on June 7.
The bill replaced the definition of marriage in the Quebec Civil Code as between "two persons," instead of a man and a woman.
"If you had asked me when I was young whether I'd have a wedding like this someday, I would've never believed it," Mr. Thibault said. "My sisters would've been so jealous."
Messrs. Thibault and Wouters will now be extended many of the same spousal benefits and obligations of married heterosexual couples.
"We have turned a page in the history of Quebec," said Sherley Morin, an official who presided over the ceremony.
"We are very happy for them," said Claude Potvin, an aide to Paul Bégin, the Justice Minister, who tabled the legislation.
The province's next same-sex civil union is already set at the courthouse for early August.
In Ontario, meanwhile, the city of Toronto clerk turned down a marriage-licence application from one of the gay couples at the centre of last week's landmark court decision.
Buoyed by the Ontario court ruling and by a statement on Tuesday from Ernie Eves, the Ontario Premier, who said last week he supported the right of gays and lesbians to wed, Michael Leshner, 54, and Michael Stark, 44, had gone to City Hall with hopes of getting a marriage licence.
But Ulli Watkiss, the city clerk, denied the request, insisting she was not empowered to grant the document.
"I can't do anything other than not issue a marriage licence at this time," Ms. Watkiss told the two men. "Under the current legislative framework, within the country and within the province, I do not have the right to give you the licence that you seek at this time."
"The court has asked you to be patient. It has chosen not to put itself in the position of legislator; it has given the federal government two years within which to pass legislation," she added.
She urged the federal government to "act on this quickly. We do not, like you, want this to be hanging in the wind for another period of time."
Had she issued the licence, Ms. Watkiss said, "it would be an invalid document" and she would likely have been in contempt of court.