by arthur Weinreb, associate Editor,
December 16, 2004
In its December 9 decision in Reference re Same-Sex Marriage, the Supreme Court of Canada held that the proposed legislation respecting same-sex marriage is within the jurisdiction of the federal government and has not been shown to be contrary to the Charter of Rights.
Even before the judgment came down, the federal government announced that they were going ahead with the proposed legislation that will probably be tabled in January. The Liberals, who failed to act on the matter, preferring to let the courts decide, now say through Prime Minister Paul Martin that a referendum cannot be held because this is something that should be decided by Parliamentarians. a finer group of hypocrites has yet to be found.
Now that the traditional definition of marriage; a union between a man and a woman to the exclusion of all others, has been effectively done away with, will the door now be opened to legalize other so-called alternative lifestyles, such as polygamy?
The federal government recognized the connection between same-sex marriage and polygamy by arguing that legalizing marriage between two members of the same-sex will not lead to the legalization of marriage with multiple partners. Legalizing same-sex unions will not lead to outbreaks of malaria either, but the government lawyers didn’t argue that. The fact that they mentioned polygamy meant that they can see it coming.
Examining the strength of weakness of some of those arguments is a good indication of whether or not legalized polygamy will be in Canada’s future. One of the arguments raised by the federal government was that there was no evidence before the Court regarding the practice of polygamy. Since the issue before the Supreme Court was that of same-sex marriage it is hardly surprising that there was no evidence regarding polygamous marriages. The argument seems totally irrelevant.
The federal government also argued that polygamous marriages are offences under the Criminal Code. That too is a weak argument; if a further attack is made on the definition of marriage and the court decides that marriage of more than two persons is constitutional, the criminal provisions would simply be struck down.
The arguments that the federal government made to the Supreme Court of Canada stating that the legalization of same-sex marriage would not lead to the legalization of polygamy and other forms of unions was not made for the benefit of the Court, who was not deciding the issue. It was made for purely partisan political purposes to pacify those who think that legalizing same-sex unions will inevitably lead to the legalization of other unions.
The main rationale that the Supreme Court of Canada used in the finding that the government could legalize same-sex marriage was that Canada’s constitution is not "frozen document". The Court further found that the traditional definition of marriage as being the union of a man and a woman to the exclusion of all others is one that comes from "Christendom". The Court went on to say, "The reference to ‘Christendom’ is telling. Hyde [a case referred to by the Court] spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society." The Court went on to say that the constitution should be given a "large and liberal interpretation".
It is difficult to understand how the judgment of the Supreme Court of Canada in any way limits future legislation allowing marriage with multiple partners. Having done away with the fact that the traditional definition of marriage is not sacrosanct, the Court left open the possibility of other forms of marriage besides those that are restricted to two persons.
It is hard to believe that the Supreme Court of Canada, having found that marriage need not be restricted to the union of a man and a woman, could nonetheless find that there is some magic in restricting the union to two persons as opposed to three or more.
The Reference decided by Canada’s highest court doesn’t necessarily mean that the polygamy will be legalized in the near future. There is nothing in it for the government to introduce such legislation. The government never acts–it reacts. Those who favour marriage with multiple partners lack what gays and lesbians have had for some time--well organized lobby groups.
But have no fear--it will happen one day. Now that the traditional definition of marriage has been done away with there is nothing to stop it from being further broadened.