Sex, Law and Politics

October-02-03

Sex, Law and Politics

General Romeo D’Allaire was the Canadian General in charge of the U.N. troops during the Rwandan genocide. Eight hundred thousand people lost their lives and well-over a million were maimed or injured in the space of 100 days. It is estimated that 2.5 million people became refugees out of a population of approximately 8 million. A human catastrophe by anyone’s standards.

This catastrophe could have been ameliorated or prevented had the world listened to the pleas of General D’Allaire, but the world chose not to listen, and he was left with a small contingent of troops from 26 nations who could do nothing but observe, and report upon the carnage and slaughter.

From time to time, D’Allaire would send platoons into the countryside to provide help and obtain information. One such platoon came upon a village whose inhabitants had recently been slaughtered by one of the marauding militias. It was a scene from the apocalypse – people were dead or dying, lying in ditches groaning, children decapitated, men and women eviscerated. It was well known that this village had a high incidence of AIDS, and if the soldiers helped the wounded and dying they would face the risk of exposing themselves to harm.

The dilemma for the platoon leader was whether he and his troops should get out of their vehicles, get down in the ditches and help those who could be helped – again at some risk to their own well-being. Or should they just move on to the next village, and see if they could be of some assistance there?

The platoon leader reported back to General D’Allaire and the General called all of the platoon leaders into his office. He told each of them the story, and asked the leaders, “Would you get down in the ditch, and help out, risking your own well-being, or would you move on to the next village? Twenty-three of the twenty-six platoon leaders replied that they would move on. Three, however, said that they would stay, and help out – Ghana , Belgium , and Canada . 

    General Romeo D’Allaire asks a very profound question: “Where do you get your values?”  The question is as relevant in Canada as it is in Rwanda .  Every one of us walked into this room with a set of values and beliefs.  Some are stable and some are in flux.  Hopefully, you are at an age and stage where you are examining your values and beliefs.

    Our M.P.s are in a similar position.  Each M.P. walks into the House of Commons with a value-set and every day, that value-set is challenged.  To assume, as some do, that the House of Commons is value free is a naïve sophistry.  Herb Dhalival does not cease to be a Sikh; Rahim Jaffer a Muslim; Irwin Cotter a Jew; or John McKay a ChristianSecularist.  The additional burden on an M.P. is to try and reflect the concerns of his/her constituency.  Happy is the M.P. when his/her views are consistent with those of the constituency.

    Needless to say, values compete.  The debate about same-sex “marriage” is a quintessential example of competing values to which I’ll refer over the course of my remarks.  In some ways it is almost a textbook example of the competition among between politics, ethics, morality and religion.

    The gay rights movement did not start in 1982 but for our purposes we reached a significant Canadian milestone in that year.  Parliament passed the Charter of Rights and Freedoms in 1982.  The Justice Minister of the day (Jean Chrétien) was repeatedly asked by Svend Robinson and others to include sexual orientation in the Charter as a prohibited ground for discrimination.  On seventeen separate occasions, Chrétien said no, reasoning that “nobody knows what it means- what is sexual orientation?”  Subsequently, the Courts, not overly concerned by Parliament’s hesitancy and desire for precision “read in” sexual orientation as an “analogous ground.” 

    Once the Charter of Rights and Freedoms came into existence, Canada acquired a new set of political actors. The Courts of Canada received into their hands  a wonderful tool to shape Canadian society in profound ways.  And these judges are not value free.  They too come from ethical, moral and faith bases.  They are also very political. The question that arises, though, is where do Justices of the Supreme Court of Canada get their values? In part, the Justices get their values from the body of law developed in Canada or elsewhere over generations, and beyond that from the British common law tradition developed over centuries by a country from which Canada draws many of its traditions and institutions. We quite explicitly ask them to start from that point… and we make them, as a branch of good governance, responsible for assuring a balance of continuity with established laws, plus innovation when there are new circumstances. They are also informed by their personal set of circumstances. Judges are not value-free or impartial.

 The main difference between parliamentarians and the judiciary, however, is that John McKay, M.P. can be called to account for his value judgments but a judicial officer cannot. Canadians know little about judicial officers, or how they are appointed, and these officers are protected by judicial immunity.  They have become the new High Priests.  There is a qualification period; a set of mystical texts; priestly robes; and a societal deference.  We worship at the altar of judicial pronouncements.  Obviously, most Canadians have not spent any time at a law school or in the courts; otherwise they would not be quite so deferential.

The opening that judges use to access the shaping of society is Section 15 (1) of the Charter, which prohibits discrimination:

Every individual is equal before and under the law and 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.

    Once you’ve found discrimination, you’re in the door and the onus shifts to the government to justify the “discrimination” under Section 1 in “a free and democratic society.”

In the words of Janet Somerville, former General Secretary of the Canadian Council of Churches, and Associate Editor of the Catholic New Times newspaper, in her letter to Bill Graham, MP… “If we take the opposite-gender dimension out of marriage, what do we have left? Well, in the new definition proposed for the Supreme Court’s consideration, we will  still  have the element of free  personal choice—the choice of two persons to live in “union” with each other. And in popular opinion (though not in law, since law cannot command love), you will still have love. What love means, alas, is no longer very clear in modern Western societies. Does love have the profound, sacrificial, self-transcending, creation-affirming meaning that it has in Jewish and Christian religious traditions—for example, in the thirteenth chapter of Paul’s letter to the Corinthians?  Or does “love” now refer to the sizzle that comes (and goes) with mutual sexual attraction?  If the latter is what is meant, then there is not much left of the traditional  institution of marriage. If the meaning of marriage has been whittled down to mutual free choice and mutual sexual attraction, then why should it exclude gays and lesbians who love each other?

Indeed marriage is built on love: love between a man and a woman, love of the children of that couple, and loving loyalty to grandparents, in-laws,  cousins, uncles/aunts, and all the connections into past and future that come with an institution which is  about welcoming and nurturing a new generation of human beings into family life. Traditional marriage is an institution that carries a great deal of the weight of human life in society: not just personal faithfulness and mutual pleasure, but the expectation that new human life will be welcomed, named, and nurtured to responsible adulthood. Heterosexual marriage has a biological foundation in a natural resource that is crucial for any society’s future: that natural resource is human fertility. Heterosexual marriage integrates the great “green” biological gift of fertility with interpersonal love and with long-term social responsibility. Because of its deeply natural connection with responsibility for young life, marriage requires commitment, time, hard work, loyalty, troth etc. And marriage requires long-term support and respect from the society into which it is bringing new children.

When you take opposite gender out of the definition of marriage, you have taken away a great deal of the social and public importance of marriage. If it’s only about free mutual choice and faithfulness, and not at all about the willingness to become parents together, how is it different from all the interdependent relationships that are possible in life—a mother and daughter who live together, for example, or two old celibate friends, or an eccentric scientist and his or her housekeeper? When marriage was a heterosexual institution, society was collectively prepared to defer to it as the one institution that is foundational to society and its continuation.  The new definition (“two persons”) is no longer foundational, and so the reasons for excluding all those other kinds of mutually dependent relationships would appear no longer valid. Why not call them marriages as well?  And then, what is left of the meaning of the word?” [1]

    Everyone has a religion, in the broad sense in which religion means “that which is of ultimate importance to a person.  The judges have a religion, and likewise, the politicians; indeed even the academics do.

    In that sense, those who argue in favour of same-sex “marriage” speak from a “religious” base.  The Charter is the scripture – judges are the priests – law school their theological institutes and law texts sacred writings.

    By electing non-discrimination as their core principle, they have elevated the “right to choose” above all else. Rabid individualism trumps the communal virtues required to make a society work.

    “The different ways of ‘life’ (individualisms) that we see around us are in fact often ways of death.” [2]

What are those ways of death?  Think particularly of the ideologies of individualism and materialism.  The brand of individualism we encounter today promotes material gain as the normativeprimary objective.  It proclaims: ‘Never mind the needs of others; never mind the legitimate needs and rights of the wider society.  My needs, my wants, my demands come first.  Forget about everybody else’s!”.  This type of ideology, when lived out in the context of a marriage, is a sure fire marriage killer.

    Ironically, one of the ways this rabid individualism triumphs is by marginalizing “other religions” and defining the public space as “secular”. How many times have we heard that “religious” people must keep their faith private, and out of the public sphere? It is a particularly devastating argument for people who are attached to a particular faith group.  “Religious people” are to do whatever it is they do on Fri./Sat./Sunday but for heaven’s sake keep it quiet and out of the public domain.  Immediately people of faith are marginalized and excluded from shaping society’s direction.  They become apologetic when speaking from a sacred text.  Once you have marginalized the opposition you will win the argument by default.  Your ideas may be quite goofy or they may even promote, as my friend Gerry Vandezande says, “the ways of death”, but they will prevail.

    To the extent that you privatize the gospel (faith) you secularize public debate. Privatization, then, leads to secularization. “If allowed to go unchecked, secularism reduces life to individual choice, material gain, and “non-religious” thought.  It ignores the integrity of human community, and the reality of faith at work in our society.  It is a shallow, reductionistic view of life, that violates the holistic message of the Gospel, and the organic unity of humanity created in the image of God.  It undermines any but its own view of spirituality of life.” [3] In the same sex marriage debate, brave is the citizen who says “but the Bible says…”

    Professor John Witte, in his Hill Lecture on “Religion, Secularism and Human Rights” made a very critical point in suggesting “…without religion, the regime of human rights becomes infinitely expandable.  The classic faiths of the Book adopt and advocate human rights to protect religious duties.  A religious individual or association has rights to exist and act not in the abstract, but in order to discharge discrete religious duties.  Religious rights provide the best example of the organic linkage between rights and duties.  Without them, rights become abstract, with no obvious limit on their exercise or expansion.” [4] His point is that religion creates a context for rights.  It provides a needed balance in the “rights” dialogue.  It outlines the duties and responsibilities that balance each other.  He argues that religion acted as the midwife of the rights movement, but has since been marginalized, in part, because a “rights” culture has not been part of the theological discourse and teaching.  I am convinced that he is right.

The House of Commons is sometimes referred to as a“talking shop.”

The word “Parliament” is derived from a Flemish word meaning talk shop. Sometimes, however, Parliament seems to be more of a dialogue of the half deaf.  It’s as if M.P. s can only hear with one ear (the rights ear) and are deaf in the responsibilities ear. If they are deaf in one ear, their decision-making is flawed, and the debate, predetermined. 

The same-sex marriage debate is framed, almost entirely, in rights language.  Other analysis, equally valid if not more so, are deemed to be speculative. To mount a social utility argument on the efficacy of heterosexual marriage to a society is ipso facto deemed to be irrelevant.  Legislators and jurists are not interested in the sociology of marriage, let alone the theology.  The “web” of interconnectedness that is the institution of daily life is immaterial to a jurist focused solely on rights.  “Yet religion (faith) is at the heart of a person or an     institution’s existence”. [5]   Proverbs 4:23 “ Watch over your heart with all diligence, for from it flow the springs of life.”  Out of the heart, the issues, ways, and structures of life are created.  Cut out the heart and you no longer have a person or an institution.  I would suggest that cutting the gender completely out of marriage cuts out its heart.  To argue that the elimination of gender from the institution is risk-free or value-neutral is disingenuous to the extreme. 

 The intellectual sophistry, which conflates equality and sameness, may give comfort to some small “L” liberals but it is really a failure in inclusive pluralism. If we in Canada are to have a real understanding of pluralism, one size will not fit all. People are different – relationships are different. Poking a and jamming people and relationships into one category does not make them the same or equal. Trying to fit same gender relationships into the box of marriage may look like equality but it is the pablum mush of misguided pluralism. Equality is not sameness– sameness is not equality.

He who frames the debate wins.  Frame it in rights chatter, marginalize other voices, (religious, historic, moral etc.) and dismiss others as speculative, and you will win every time.  Rights win- and we all lose. 

 

    We seem not to be able to learn from past experience.  In the early 1970’s, we set the legislative ball rolling to create “ no fault” divorce.  The arguments were that this was long overdue, that women, in particular, were trapped in unhappy relationships, and that very few people would be affected.  Subsequently, Canada has seen the number of successful marriages plummet, divorces skyrocket, poverty feminized, children single parented, and men marginalized (85% of men lose custody disputes).  We have created a divorce culture. The ease of divorce is not the only reason why having children is so much less attractive than it used to be, but it is one aspect of our historic turn away from being a child-friendly culture.  In fact, demographically, we do not even replace ourselves. 

I daresay that there is not a person in this room who has not been directly or indirectly affected by our divorce culture. – the genesis of which started with some minor legislative tinkering.  While it was sold as affecting only a small group of unhappy people, it has in fact impacted every marriage in the nation.  We took out of the marriage mystique the concept of life-long covenant, and replaced it with the simplicity of contract.  What was supposed to affect the few has in fact affected just about everyone.  What was a minor move from covenant to contract has profoundly changed the way we think about the institution itself.  Prior to gay rights, we were well on our way to trivializing the institution of marriage. With the developments that have occurred in the last few months, we have accelerated this very regrettable trend.  No less a deconstructionist than Svend Robinson commented when asked about his getting “married” now that it is “legal”, “Why do I need the state imprimaturto validate my relationship?” 

 

    Where do you get your values?  I alluded to Professor Cere’s analogy of a web.  The strands of marriage are, among other things, theological, sociological, generational, legal, and cultural.  It is a fragile yet remarkably strong structure.  You cannot detach strand after strand, however, and expect it to survive.

 

    Collectively we have dismissed the religious as insignificant, and have limited them to being “those religious people”.  The Court of Appeal in Ontario rendered the procreative potential of heterosexual unions as irrelevant to the public understanding of marriage. [6]   By bombing the intergenerational bridge (front and back), the Courts have indeed succeeded in reducing marriage to the level of any other non-procreative institution. Marriage as an institution is now non-procreative.  Does that mean there is now  no point in getting married to be pro-creative? (as in “we are going to have kids, so we decided to get married”).  Parents will now ask their children, why bother? How do I answer my daughters Sarah, Rachael, and Caitlin when they say they want to get married? What’s the point? No less authority then the Court of Appeal of Ontario has said there is no necessary connection between marrying and choosing to have children.

    Every culture develops its unique ways of celebrating the exchanging of commitments between males and females.  One of the reasons is to reinforce the notion that the covenant between the two is much larger than the couple themselves, and extends to the community at large.

    The community says to the couple, in effect, that they will protect your vulnerable flank because you “Mr. & Mrs.” are critical to the health and well being of our community.  They then proceed to develop a set of protective laws and institutions to encourage the marriage to flourish but also to protect the parties in the event of a breakdown.  Does the same analysis, the same external commitment apply when marriage is merely a free-choice contract between any two persons?  When gays divorce there will be sadness but, unless the couple has gone on to adopt children, it will not have generational or societal impact.  In the case of heterosexual divorce, especially when there are children, we know that all hell breaks loose.  The larger society is diminished with each divorce because the marriage reaches backwards into previous generations, forward into future generations, hobbles the current generation and ripples out into the wider community through various support mechanisms and government backfilling.  None of that will occur with a gay divorce because it is, in its essence, a “love institution”, unique unto the parties themselves and themselves only.

    Marriage in the Western Christian tradition is a contract, a social estate, a spiritual association and a participation in God’s own blessing of creating and sustaining of the human future.  As a secular state, Canada has embraced the law of contract and diminished all other aspects.  We are now reaping the whirlwind.  “Marriage and the family are in trouble today.  Statistics tell the bald American story.  From 1975 to 1998, roughly one-quarter of all pregnancies were aborted.  One-third of all children were born to single mothers.  One-half of all marriages ended in divorce.  Three-quarters of all African-American children were raised without fathers.  The number of ‘no parent’ households doubled.  Children from broken homes proved two to three times more likely to have behavioural and learning problems as teenagers than children from two-parent homes.  More than two thirds of juveniles and young adults convicted of major felonies from 1970 to 1995 came from single- or no-parent homes.  So much is well known.  It brings little cheer.” [7]    

For those of us who have tried single parenting, it is not fun at all. Parenting is designed as a team sport for two genders. Try as I might I cannot bring to the parenting table the subtleties and perspective of a female. I’m equally sure that I baffle my wife as well. Parenting can be done and done well through different relationships, but the exception does not alter the rule. Men relate best to women in marriage; women relate best to men in marriage; children relate best to their parents in marriage.

    I have tried to articulate over the course of our discussion, that we should not let the lawyers run away with the debate. The General’s question is quite profound – the partial answer is that we get our beliefs and values from a wide variety of sources – some religious – some anthropological – some legal. A debate about marriage that restricts itself to a rights-based argument is a surrender that will ultimately be a great disservice to our society.



[1] Somerville, Janet, in her letter to Bill Graham, MP, August 18th, 2003 .

[2] Gerald Vandezande, in Justice, Not Just Us. 1999

[3] Gerald Vandezande, in “Public Justice Through Confessional Pluralism: Towards Reconciliation in a Divided World”, Social Work and Christianity Journal, pg. 7

[4] Professor John Witte, Religion, Secularism, and Human Rights. Lecture – Parliament Hill.

[5] Gerald Vandezande, in Justice, Not Just Us. 1999.  pg. 72

[6]  See Sections 121 and 122 of Court of Appeal ruling regarding Halpern et al. vs. Attorney General of Canada et al. June 10th, 2003 .

[7] John Witte, in An Apt and Cheerful Conversation on Marriage. pg. 2