How Canada got homosexual 'marriage' - Constitutional Calvinball

Do you remember the 1980s comic strip about a boy and his stuffed tiger, the strip Calvin and Hobbes? It sometimes featured a game called Calvinball. The most outstanding thing about the rules of that game was that they changed. Continuously. In fact, in one of the classic panels that introduced the game, Calvin gleefully tells Hobbes that "the only permanent rule in Calvinball is that you can't play it the same way twice." Keep that bit of cartoon wisdom in mind as we consider, "How Canada Got Homosexual Marriage."

The very notion of "same-sex marriage" was something completely unheard of 25 years ago. It never would have occurred to most people to put the words "homosexual" and "marriage" together. (Remember that 30 years ago, the term "gay" hadn't even come into common usage. Society only knew the word "homosexual" and a few derogatory terms that still exist today; even some of those like "queer" and "drag queen" have been co-opted by homosexual activists.)

In any event, the notion that two men or two women could marry and receive societal approval was completely unheard of. In fact, homosexual activists in Canada initially did not envision making "marriage" a seminal aspect of their movement.

...the gay movement in Canada never made legal recognition of same-sex marriages a primary concern. Many early liberationists found that cause far too "accomodationist" to warrant serious effort. (1971 We Demand, Canadian Lesbian and Gay Archives, www.clga.ca)

So, if society at large wasn't clamouring for it, and homosexual activists weren't pushing terribly hard either, how then did Canada get homosexual marriage?

How homosexual rights came to Canada

To understand how we arrived at where we are today, we need a bit of history. Maybe you thought history was boring in high school. Believe me, this piece of history is anything but boring. It's about as varied and unpredictable as a game of Calvinball.

The history of the game began in 1965 (that is less than 40 years ago - in other words, one generation), at Pine Point, in the Northwest Territories. A man named Everett Klippert acknowledged to police that he was a homosexual, and that he had had sex with a number of men over a 24-year period. He was arrested and put in jail, where he told prison psychiatrists that he was unlikely to change his sexual drive or orientation. Klippert probably didn't realize it at the time, but he was going to become the inspiration behind Constitutional Calvinball.

In 1967, Canada's centennial year, Klippert was sent to prison indefinitely as a "dangerous sex offender." Interestingly enough, at the time, the Supreme Court of Canada upheld the sentence. But that would quickly change. By 1971, Klippert was released on parole. The political mood was shifting and the government was backing away from the traditional notion that homosexual activity should be viewed as criminal.

Enter the constitutional catalyst. Remember Pierre Trudeau? He is the architect of Constitutional Calvinball. At the time Klippert was sentenced, Trudeau was the minister of justice. Klippert's case left an indelible impression on Trudeau. He felt that Klippert had experienced a form of state tyranny. In fact, it was in reference to the Klippert case that Trudeau made the infamous remark: "The state has no business in the bedrooms of the nation." The remark was an explicit response to criticism that he was, among other things, preparing to relax the laws against homosexuality.

In part, the Klippert case helped to galvanize Pierre Trudeau's political purpose as prime minister of Canada. Trudeau believed that inequalities between Canadian anglophones and francophones, and inequalities between Canadian heterosexuals and people like Klippert, were due largely to Canada's dependence on England, the monarchy, and the tradition of English common law. Such dependence fueled injustice and stripped Canadians of autonomy, equality and national pride. Thus, with single-minded determination, Trudeau spearheaded a 15-year battle to enshrine Canada's independence with a constitution of its very own, a constitution that would give every individual in Canada a guarantee of freedom and equality. That battle culminated in 1982 with the Charter of Rights and Freedoms.

The rules of the game

With that bit of history set as our context, we can now turn to the Charter of Rights and Freedoms, which, if you will, is the rule book of Constitutional Calvinball - at least part of it is. The section of the Charter that interests us is Section 15, which says:

Every individual is equal before and under the law, has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Take a minute to ponder those lines. Because they really are important. Do you see anywhere in those lines the phrase "sexual orientation"? Or even "homosexuality"? Or "lesbianism"? These words are not included in the Charter, in spite of the fact that back then when it was written, there were activists who were aggressively lobbying for their inclusion. Parliament at that time, including Trudeau and (ironically enough) Jean Chretien, said no. Now the reason we reviewed this bit of constitutional legalese is to help explain one of the unique features of Constitutional Calvinball.

Today, some political science professors who want to rewrite history are teaching that the only reason the "sexual orientation" clause wasn't explicitly put into the Charter was because "Canada wasn't ready for it" at the time, that somehow, the politicians responsible for the Charter knew that and kept quiet even though that was their ultimate aim. In fact, interviews with the politicians at the time that the Charter was being written indicate that they made an explicit choice against including the idea of "sexual orientation" as a ground under which discrimination would be expressly prohibited. This is hugely important in view of what happened later.

Ultimately, you will not find "sexual orientation" in Section 15 of our Charter of Rights and Freedoms, unless of course, you are a judge.

Rule #1: The powerful make the rules as they play

Judges have claimed to see the notion of sexual orientation very clearly in our Charter. In fact, there have been a number of court rulings in recent years which insisted that sexual orientation is indeed part of Section 15 of the Charter of Rights and Freedoms, even though it was never explicitly written down. It is the "intent" of the original authors that the judges are claiming to safeguard. And in case anyone disputes their insight, these judges are quick to remind us that they have a democratic anointing to prove it. As far as judges are concerned, they have the power to divine the intent of the original authors of the Charter, even if the original authors didn't know what their intent was. The long and the short of it is this: judges have decided that the words are there, whether the rest of us can read them or not.

Now, if you understand that judges have taken it upon themselves to read things into documents, concepts that aren't really there, then you're well on your way to understanding the first, and, really, the only rule of Constitutional Calvinball that matters. Judges are powerful. Judges make the rules as they go.

Consider the arbitrary way the Supreme Court of Canada appears to make some of its decisions.

In 1998, the court had two cases before it. One involved a young woman who was pregnant. She was addicted to sniffing glue, a practice that certainly wasn't healthy for her unborn child. Her social workers wanted to force her into treatment to protect the baby. However, the Supreme Court held that it was up to Parliament, not the courts, to protect pre-born children from substance abuse.

But there was another case in 1998. It involved a man named Delwin Vriend, who was fired from his job at a Christian college in Alberta because his flagrant, in-your-face homosexuality was contrary to his employer's code of conduct, to which he had signed on when he took his job. Vriend appealed his firing, claiming he should have been protected under Alberta's Individual's Rights Protection Act. But that act (just like the Charter) made no specific mention of "sexual orientation" as a protected category. In fact, it had been repeatedly proposed over the years by the Alberta Human Rights Commission and repeatedly refused by Alberta's elected government.

But remember, in Calvinball the rules are made as you go. The same Supreme Court judges who had decided in the glue-sniffing case that it was up to politicians to decide whether to protect pre-born children from substance abuse, now held that they, not the politicians, would decide whether or not sexual orientation should be a protected category in Alberta human rights law. (Their ruling was based, incidentally, on their reading of Section 15 of the Charter. Remember that section? The one that makes no mention of sexual orientation, unless you're a judge, because then you can divine it into existence?)

In the Vriend case, the Supreme Court said that henceforth, the Alberta Individual's Rights Protection Act would be interpreted to include protection for homosexuals, even if the province didn't explicitly write that change into the act. So these invisible words would be inserted into the provincial law, whether or not the elected politicians of Alberta - those who were actually accountable to the people - agreed.

Even the Globe and Mail, not usually known for editorial support of judicial conservatism, took note of the contradictions. In an editorial on April 21, 1998, the paper stated: "It's not easy to give the impression of being both directionless and headed in the wrong direction, but the Supreme Court of Canada has somehow managed the feat."

Then came the case of the school board in Surrey, B.C. Elected school trustees in the Vancouver suburb of Surrey had, after extensive consultation with their local voters, decided that books which promoted homosexuality were inappropriate for elementary school classroom use for children as young as five years old (although they agreed to leave them in the elementary school library). Homosexual activists took that decision to court, claiming "discrimination." On Dec. 20, 2002, the Supreme Court of Canada decided that the school board could not appeal to "community standards" or input from electors as the benchmark for its decision on these books. Instead, the court ruled that the decision about whether or not to include the books in the classroom must be based on what is contained in the B.C. School Act.

However, Chief Justice Beverly MacLachlin wrote that the B.C. School Act would have to be read as though it included the words "diversity" and "tolerance," and as though homosexual parenting were mentioned as well. Why? Well, just like with Section 15 of the Charter of Rights and Freedoms, these words were nowhere contained in the B.C. School Act. Constitutional Calvinball, anyone?

There have been other cases with similar outcomes. In 2001, Trinity Western University, a privately funded Christian university in B.C., was denied the right to have its education graduates certified as teachers. The B.C. College of Teachers decided that, because the university had a "discriminatory policy," the students graduating from its programs could not possibly be "tolerant" enough to teach in public schools. The "discriminatory policy" in question? Students had to sign a document promising to refrain from sinful practices while enrolled at Trinity, including premarital sex and homosexual activity.

This case also went all the way to the Supreme Court, which ruled that the "fundamental" religious rights in Section 2 of the Charter must be "balanced" by the "equality" rights in Section 15. Although the high court ruled in favour of Trinity Western University, the bottom line of its ruling was that a person may have the freedom to believe or hold to a particular religious opinion or dogma in private, but the freedom to practise that belief in public is not equal to the overriding principle of "tolerance." In other words, tolerance doesn't extend to religious views that may be out of step with what the court considers politically acceptable at a particular point in history. Ergo: everyone is equal, but some get to make the rules as they play the game.

Some of the court rulings above came in a climate that had fostered increased institutional rights for homosexuality since the 1980s. Indeed, some would argue that the trend began with Trudeau's rewrite of the Criminal Code of Canada in 1969. Three pivotal rulings are worth noting:

• April of 1989: the Canadian Human Rights Commission issued a precedent-setting ruling on the issue of employee benefits for homosexual couples. It ordered the government of Canada to pay one of its workers, Brian Mossop, bereavement leave to attend the funeral of his (male) partner. Among other things, the ruling said that it was "reasonable to conclude that homosexual couples may constitute a family."
  
  
• Oct 27, 1992: the Federal Court of Canada ruled the military's treatment of homosexual was unconstitutional. The Defence Department announced the same day that it would "no longer discriminate against gays."
  
  
• May 25, 1995: the Supreme Court of Canada laid the final bit of pavement for the road to homosexual marriage with a ruling on pensions for same-sex couples. These pensions have, by law, been reserved only for heterosexual couples. But the majority decision from the court ended that when it said, in part: The definition of "spouse" as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples … [T]herefore the distinction amounts to discrimination on the basis of sexual orientation.