Feds appeal gay marriage decision
Pro-family activists applaud government action but worry Liberals are just buying time

The federal government filed an 11th hour appeal of an Ontario Superior Court decision finding the definition of marriage being exclusively between "one man and one woman" to be a violation of the Charter rights of homosexuals. The delay in filing the appeal has led some pro-family advocates to wonder if the appeal is merely a stalling tactic or, worse yet, a foisting upon the courts of the responsibility to decide the issue of same-sex marriage.

Even political columnists from two national newspapers were cynical. The National Post's Paul Wells wrote that Justice Minister Martin Cauchon's "laconic" statement announcing the appeal "makes it clear his aim is not to make a decision, but to avoid one." Globe and Mail columnist Jeffrey Simpson said that "by launching this appeal, (Cauchon and the government) (a) play for time, and (b) make future legislative changes the fault of the court, not the government." More straightforwardly, Calgary Herald columnist Ric Dolphin wrote that the Liberals "have figured out a way of letting gay marriage in, as it were, through the back door."

Supporting such a thesis is the government's own admission that the Justice Department is considering its options on how to move forward to rectify what the Ontario court claimed was an unjust form of discrimination against homosexuals. While Cauchon has said the government has appealed the decision to "clarify" the issue, he has mused aloud that the government is considering its options. According to published reports in the National Post and the Globe and Mail, the Justice Department is developing several options for cabinet to consider.

The options include changing the definition of marriage to include same-sex unions, allowing civil unions under a different name or getting the government "out of the marriage business" - thus removing some of the last protections for the safest and healthiest environment in which to raise the next generation of citizens: a life-long, traditional marriage. The last idea would allow churches to perform marriages and have the state sanction civil unions for common-law couples, whether heterosexual or homosexual.

This last option may seem attractive to pro-family advocates because it seems to offer at least limited protection for marriage. However, one lawyer close to the case told The Interim that while he sees some merit in this option, it is ultimately a cop-out with serious implications. "While it would protect churches from having to perform same-sex marriages if the government were to ever go down that road, it would remove the special protection and benefits married couples and their families receive in law," he said.

Sadly, no cabinet minister has stood up for the traditional definition of marriage, raising the spectre that the status quo - recognizing the uniqueness of the marital relationship in society - is not an option for this government. Indeed, according to Equality for Gays and Lesbians Everywhere, there are five cabinet ministers in favour of redefining marriage to include same-sex couples. Foreign Affairs Minister Bill Graham, Heritage Minister Sheila Copps, Industry Minister Allan Rock and Amateur Sport Minister Paul DeVillers have all come out in favour of same-sex marriage. (Speculation in the Globe and Mail has Cauchon as the fifth cabinet supporter of same-sex marriage.)

This summer, Rock promised an audience at Vancouver's Gay Pride Parade that he will lobby his cabinet colleagues to support same-sex marriage. Three years ago, Rock and Copps voted with the rest of cabinet in supporting the current definition of marriage. Rock's office has yet to return calls from The Interim asking for an explanation for his flip-flop on the issue.

In Vancouver, Rock admitted that he voted with the cabinet in 1999, but that, "Ever since I've been in public life, issues such as equality for gays and lesbians have been important to me ... I think the right thing is to recognize same-sex marriages, and when the minister of justice launches the appeal and starts a process to look at options, I'm committing myself to be active in advocating that option."

As for leadership from the prime minister, Jean Chretien has only said that the issue is "a social problem" that will have to be examined.

Despite the failure of cabinet ministers to defend the family, a number of courageous Liberal backbenchers have spoken out in favour of the traditional definition of marriage. Pro-life, pro-family MP Tom Wappel (Lib - Scarborough Southwest) pressed the government to appeal the decision. He said if the Supreme Court of Canada ultimately does not overturn the ruling, the government should invoke the notwithstanding clause, section 33 of the Charter of Rights and Freedoms, to override the court and protect the traditional definition of marriage.

Dan McTeague (Lib - Pickering-Ajax-Uxbridge) is warning that the government is inviting a backlash if it tries to change such a "precious and indispensable" institution as marriage. "I think Canadians have a strong sense of values, despite the liberal media and a handful of elites on the far political left," he told Today's Family News.

McTeague pointed to a motion passed overwhelmingly (216-56) in June 1999 expressing Parliament's support for the current definition of marriage. At the time, the entire cabinet and a majority of Liberal MPs supported the motion.

Whatever the government may have thought in 1999, it seems clear now it is willing to change direction. The federal government has asked a parliamentary committee to hold public hearings on the issue of same-sex marriage and unions.

Cauchon said he doesn't want to tinker with the definition of marriage in the absence of a "consensus." But supporters of the traditional definition of marriage are skeptical. One pro-family leader told The Interim that the government will stack the hearings, manipulate polls and otherwise influence the process to get its desired result. "The Liberals will be happy whatever the outcome of the hearings because they will have influenced its outcome." In short, they will manufacture consensus.

A recent Pollara poll suggests consensus will be difficult, with Canadians evenly split on extending marriage rights to homosexuals. The poll of 1,200 people found that 48 per cent of Canadians agree with the Ontario court ruling, while 43 per cent disagree with it.

Not surprisingly, Pollara also found that support for the idea of same-sex marriage rights is higher among those aged 18-34, leading Pollara chairman (and chief Liberal party pollster) Michael Marzollin to conclude that same-sex marriage is inevitable. He told the National Post, "The new generation of Canadians are far more supportive of gay and lesbian marriage than the previous generation. These numbers will increase just as a result of demographics."

But other polls taken over the past two years, including polls by respected agencies such as Leger Marketing and the Environics Research Group, suggest no discernable trend in support for same-sex marriage. In July 2001, Leger found that nearly two-thirds of respondents favour redefining marriage to include same-sex couples. Earlier that year, Environics found support at 55 per cent. At the end of 2000, a Maclean's/Global Television Network poll found a slight plurality, 44-40 per cent, against extending marriage to homosexuals.

University of Lethbridge sociologist and pollster Reginald Bibby told the Ottawa Citizen earlier this year that Canadians think homosexuals are entitled to the same housing and employment rights as heterosexuals, but as the gay-rights movement has vigorously pursued policies that challenge the uniqueness of the family - namely marriage and adoption rights - that support has decreased. He pegged the drop from 81 per cent in favour of same-sex rights in 1990 to 70 per cent in 2000.

But pro-family advocates point out that polls should not be decisive. They say the family is the fundamental foundation of society and no majority opinion can change that fact.

One should not be too hard on the Liberals for their (apparent) indecision. Canadian Alliance Justice critic Vic Toews attacked the government's foot-dragging in announcing its appeal, but his criticism was more procedural than principled. He said Parliament should decide the issue, not the courts. He has a point, but at the same time misses a more important point; namely, what is needed now is a vigorous defence of marriage and the family.

Yet, the Liberals know that they cannot just legislate same-sex marriage. As Wappel says, "Who's going to vote for a government that destroys the traditional definition of marriage? I wouldn't want to go into the next election wearing that."

So the appeal and the public-input process (read: public relations ploy) both seem to be a stalling tactic. The government rejected fast-tracking the issue of same-sex marriage directly to the Supreme Court of Canada and asking the high court for an immediate ruling. Surely, this would have provided Cauchon's sought-after "clarity."

Instead, the case will now be heard by the Ontario Court of Appeals, most likely sometime next year. There are also similar cases before the courts in Quebec and B.C. All three cases challenge the definition of marriage as a "union between one man and one woman to the exclusion of all others," and both pro-family and gay rights activists assume the cases will make their way to the Supreme Court.

Martha McCarthy, one of the lawyers who represented gay and lesbian couples in the Ontario case, called the government's decision to argue the issue in each province as a "massive waste of taxpayers' money, all to try to stop a few couples from getting married." Not that the homosexual couples will have to worry about this expense: the Ontario Divisional Court justices, in their activist ruling that the federal ban on gay marriage was illegal, ordered the government to pay as much as $1 million in legal costs and expenses to McCarthy and the other lawyers in the case.

For now, however, pro-family groups can claim victory. "This decision to appeal is clear proof that Canadians can make a difference," Focus on the Family Canada president Dr. Darrel Reid said in a news release. "I don't know that this would have happened if people by the thousands had not been urging the government to appeal this ruling." Janet Epp Buckingham, counsel for the Evangelical Fellowship of Canada, echoed Reid's comments: "I believe that the federal government decided to appeal the decision because our people responded to this issue."