June 12, 2003
Equality in marriage
THE "EQUALITY" ARGUMENT
The argument used by the Ontario Court of Appeal on June 10th in declaring the current definition of marriage unconstitutional was that it infringes on the equality section of the Charter (Section 15).
Declaring the current definition of marriage unconstitutional does not further anyone's cause, but exposes the judges zeal in transforming their role from arbiters of law to makers of law (judicial activism).
This argument is fictitious and the judges' ruling is wrong, unjustified and unjust.
Their key point is "equality". What is equality?
If a brain surgeon is fined by a policeman, is he going to appeal to the courts claiming unjust discrimination because he cannot fine a policeman, but a policeman can fine him? Of course not. Equality (according to section 15 of the Charter) does not supersede the "role" of each person in his function or position as assigned to him, by society or by law.
In the same way, it is unlikely that the policeman will appeal to the courts claiming unjust discrimination because he cannot perform surgery on the brain surgeon, while the brain surgeon can perform surgery on him. Equality (according to section 15 of the Charter) does not supersede the "ability" of each person to perform a particular role in society.
It is important to specify the meaning of equality when interfering with institutions that determine the function, rights and privileges of each person according to their role in society.
People who choose to live in homosexual relationships already possess equal benefits in Ontario (since 1999), such as employment benefits and spousal benefits. Although we may not agree with this use of tax dollars, this is currently a fact.
Marriage is an institution entrenched in Natural Law and elevated to a Sacrament by Jesus Christ. The state merely recognizes this institution as a special contract between the two parties, because it benefits society.
Marriage provides for complementary, but different roles for a man and a woman.
The currently popular, shallow, media-sponsored, "equality" argument assumes that spouses, in a marriage relationship, are "the same".
The two spouses are "equal" with respect to certain rights and abilities, such as their right to freedom or their ability to hold a particular position, for example as a manager of a corporation or a stockbroker.
However they are not "the same" with respect to other privileges and abilities, such as the privilege to belong to a women's (men's) club or the ability to bear children.
Marriage is an asymmetrical relationship.
Examples of asymmetrical relationships
Many examples can be given of asymmetrical relationships.
A father-son relationship, like marriage, is rooted in natural law and is recognized by the state. Although both men have the same fundamental rights, as per Section 15 of the Charter, the state defines inheritance laws which, in the absence of a will, regulate that the assets of a father go to the son, but not the other way around. In the case of a son's death, would the father claim discrimination because the assets of the son went to the son's wife and family and not to him? Obviously not.
If a son writes a will designating the father as the sole beneficiary of his assets, does this change their father-son relationship? No. The will is only a legal document that defines a particular aspect of the relationship between the two people. The will does not replace or re-defines their father-son relationship, because this pre-existed, in natural law, any man-made contract between the two.
Another asymmetrical contract, the employment contract between an employer and an employee, is recognized and enforced by the state.
Would it be justified for an employee to appeal to the courts claiming that current employment contracts infringe on "equality" because they do not allow two employees to enter into an "employment" relationship with each other?
If two employees are so inclined to enter in some contractual relationship between each other, this is not, by definition, an employment relationship, but it is some other kind of (employee-to-employee) relationship.
Marriage, father-son relationship and employment contracts define relationships between two parties with different roles.
Marriage, as a pre-existing, natural law relationship remains unique, irreplaceable and essential, independently of other possible relationships that men can define or enter into.
The judges' re-definition of marriage is unjustified, as homosexual couples already enjoy equal benefits with respect to married couples.
Their re-definition of marriage is wrong, as it is based on a fictitious argument and trashes an important institution which defines the family based on the different roles of mother and father.
THE "EQUALITY" COUNTER-ARGUMENT
Granting special privileges
Granting marital benefits to two members of the same sex, based on some reason, whether the colour of their eyes or their sexual behaviour is unjust (positive) discrimination. This sub-group has obtained marital benefits which the rest of us (with different chromosomes or different sexual behaviour) do not have.
For example, a person outside this sub-group cannot obtain the same marital benefits by "marrying" a relative or a friend of the same sex (unless they circumvented the law by pretending to be homosexuals in a 'conjugal relationship').
Again, using the employment relationship as an example, if a particular type of employment, such as a position with the benefit of earning a percentage of another employee's salary, was offered on the basis of eye colour or sexual behaviour, then socialists and conservatives would all join in protest.
Thus, far from instituting "equality" for everyone, the activist judges of the Ontario Court of Appeal have introduced a privilege for a minority.
Granting privileges to a particular subgroup is also unjust, as it discriminates in favour of a minority (and discriminates against everyone else).