Faith groups face uphill battle to maintain marriage definition

Supreme Court judges hearing the submissions on same sex marriage October 6 and 7, and particularly the question whether it was unconstitutional to preserve the traditional definition of marriage, fretted that the issue should be brought to them at all. It was a political question, one that seemed already to be settled, given that the federal government had declined to appeal the decisions of provincial courts to approve same sex relationships as marriages. Why place the burden of making the decision on them?

In earlier statements, Chief Justice Beverley McLachlan had already pointed out that justices too have biases that inform the decisions they make. One could read between the lines – and use the two most recent appointments of Justices Rosalie Abella and Louise Charron as illustration – to argue that we have now a nine-member unelected parliament making the decision on a critical social issue instead of the Canadian Parliament with 308 members.

The level of interest and concern generated by the four questions placed before Canada’s highest court drew a record 27 intervenors, at least seven of them from faith-based groups. While media reports give little encouragement to hope the outcome will support the traditional definition of marriage, any reading of the arguments makes it clear that the faith groups mounted a spirited and vigorous – if uphill – defense of heterosexual marriage.

The groups included the Evangelical Fellowship of Canada, the Canadian Conference of Catholic Bishops, Focus on the Family, REAL Women, Seventh Day Adventists, a Muslim group that joined the intervention of the EFC and the Catholic Civil Rights League, and a group led by Gerald Vandezande, a veteran of discussions with governments through Citizens for Public Justice. All of these oppose calling same sex relationships marriage. Two who support the change and argued for it in the Supreme Court are the United Church of Canada and the Metropolitan Community Church of Toronto.

Marriage is an institution that “predates all recorded, formally structured, social, legal, political and religious systems,” the Catholic bishops stated, and from time immemorial it had been understood as the union of a man and a woman, to the exclusion of all other relationships; how then can it be considered in violation of any charter or constitution?

The problem, said the Catholic bishops, is that a “new orthodoxy” is taking hold in Canada that defines marriage in relational terms, or as the Law Commission of Canada put it, “all adult consensual relations must be treated equally.” In their baldest terms, this has meant that the interests of same sex adults have been placed ahead of all other interests.

The Catholic bishops emphasized that point by noting that according to the 2001 census a half of 1% of all couples are same sex and that of these 1 in 7 of the female and 1 in 33 of the male have children.

The gist of the arguments brought to the Court by the supporters of heterosexual marriage were as follows:

The state has a compelling interest to support marriage because the future of children depends on it. As the Catholic bishops put it, “most children will have the best chance for long-term positive outcomes when raised by their married, biological parents.” Indeed to adopt a constitutional principle that requires the recognition of same sex marriages “means accepting as a society that children have no right to both a father and a mother . . . and no right to be reared by their biological father and mother,” Focus on the Family and REAL Women argued.

Marriage has been based on the complementarity of the sexes and is a “dynamic sexual community,” they added, in which men and women “bond” for the good of society. This view of marriage is being radically watered down in favour of a definition based on companionship. The long-standing legal view has been that “heterosexual intercourse is an essential characteristic of marriage,” they said.

More than that, marriage has had at least three components, “procreation, partnership and pleasure,” said several of briefs in various ways, thus serving both wider society and themselves. The direction the Courts are taking undermines such a definition.

The future of religious freedom was a large worry to all the intervenors supporting the traditional view of marriage. There might be little reason for pastors or religious leaders who decline to marry same sex couples on grounds of conscience to be concerned, but what about parents who wanted their children to be educated in schools that would support their beliefs, or churches, schools or camps who might refuse to allow their facilities to be used for such an event, or judges or commissioners who would not want to participate either? These have good reason to worry.

In an attempt at a compromise solution, the Working Group on Civil Unions, which was headed by Gerald Vandezande and included Mennonite Brethren John Redekop of Abbotsford and Glenn Smith of Montreal, offered that the Courts should consider that a large percentage of Canadians – from 45 to 50%, depending on the poll – believe that marriages can only be between persons of the opposite sex. These will not see same sex relationships as marriages even if the courts do. Such a “collision of dignities,” they stated, argues for another solution: governments should register both same and opposite sex unions as “civil unions.” That would leave it up to faith groups to define marriages according to conceptions rooted in their faith understandings.

Judges heard the arguments. We’ll need to wait until well into the new year to discover the conclusions they reach.

Harold Jantz attends River East MB Church, Winnipeg.