Canadian Infidelity
Ian Hunter on Courts, Churches & “Gay Marriage”
For what is probably a minority within a minority—homosexuals who want to enter a traditional marriage—the recent unanimous decision of the Ontario Court of Appeal in Halpern et al. v. A. G. of Canada is good news. The court held the existing definition of marriage as a lifelong union of a man and a woman to be contrary to the Canadian Charter of Rights and Freedoms. Henceforth, marriage means the union of any two “persons”—but why only persons and why only two is left unclear. Whether this result is good news for Canada, we shall all wait and see: The court has spoken; we, its vassals, obey.
The decision is also good news for those Canadians fed up with democracy. After all, the political process is lengthy and frustrating. It is hard to persuade one’s fellow citizens, and the resulting political compromises are maddening. How much quicker, how much nicer, to have anonymous judges answer the great existential question: How shall we then live? It saves time, debate, and especially thought.
It is difficult to believe that some Canadians—those who support the traditional definition of marriage, a definition that has sustained several millennia of civilization and is supported by virtually all the world’s recognized religions—still can’t get with the program or admit defeat. Such people call on the Minister of Justice to appeal the Ontario decision to the Supreme Court of Canada. My in-basket immediately filled up with e-mails from religious and pro-family groups urging an appeal.
What do they think? That the Supreme Court decision will somehow be different? The Supreme Court of Canada is the most gay-friendly court in the land; it has consistently swept aside religious claims in favor of expanding “gay rights.”
Federal Justice Minister Martin Cauchon soon announced a complete government capitulation to the court’s edict. The government has now drafted a new definition of marriage, embracing any two persons, and has submitted the proposed legislative amendments to the Supreme Court of Canada, by way of reference, to make sure that they are acceptable. Such is Canadian democracy.
The Facts
The facts of the case are straightforward. Seven couples sought to marry in civil ceremonies. Each application for a marriage license was turned down by the Registrar on the basis of the accepted statutory and common-law definition of marriage. But the Ontario Court has now held this definition to be “underinclusive” and a violation of the equality rights guaranteed in section 15 of the Charter of Rights.
Although “sexual orientation” is not a protected ground in the Charter, the Supreme Court of Canada “read in” sexual orientation in the 1995 case of Egan v. Canada. The court held that “sexual orientation is an analogous ground” to race, national or ethnic origin, religion, age, sex, or mental or physical disability, in that “it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal cost.”
Making due allowance for the peculiarly unintelligible manner of judicial expression, the second paragraph of the Ontario decision would have allowed any perceptive reader to predict the eventual result many pages later: “This case is ultimately about the recognition and protection of human dignity and equality in the context of the social structure available to conjugal couples in Canada.”
The Ontario decision has implications for other institutions and individuals. Although the Court said: “We do not view this case as, in any way, dealing or interfering with the religious institution of marriage,” it is difficult to take this claim seriously.
Ian Hunter is Professor Emeritus in the Faculty of Law at the University of Western Ontario. He is the author of biographies of Robert Burns, Hesketh Pearson, and Malcolm Muggeridge.
A Journal of Mere Christianity—Delivered to Your Door
- Essays on theology, culture, and the Church
- Contributors from across the Christian traditions
Six print issues (one year) of Touchstone, plus full online access and PDF downloads for only $39.95.
Get a one-year full-access subscription to the Touchstone online archives for only $19.95.
bulk subscriptions
Order Touchstone subscriptions in bulk and save $10 per sub! Each subscription includes 6 issues of Touchstone plus full online access to touchstonemag.com—including archives, videos, and pdf downloads of recent issues for only $29.95 each! Great for churches or study groups.
Transactions will be processed on a secure server.
more on marriage from the online archives
29.1—Jan/Feb 2016
on Marriage, Moral Corruption & the Christian Duty of Witness by Regis Nicoll
21.1—January/February 2008
John Chrysostom’s Discovery of the Blessings & Mysteries of Marriage by Mike Aquilina
more from the online archives
32.2—March/April 2019
Reality Shows, Even in a Popular TV Series by C. E. Smith
34.1—January/February 2021
What the World Needs Now It Hardly Knows by Anthony Esolen
calling all readers
Please Donate
"There are magazines worth reading but few worth saving . . . Touchstone is just such a magazine."
—Alice von Hildebrand
"Here we do not concede one square millimeter of territory to falsehood, folly, contemporary sentimentality, or fashion. We speak the truth, and let God be our judge. . . . Touchstone is the one committedly Christian conservative journal."
—Anthony Esolen, Touchstone senior editor
