The perils of premature adjudication

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The Article

Traditionally minded Canadians and their libertine counterparts resemble dysfunctional lovers: The traditionalists’ needs go unfulfilled, while their litigious bedmates selfishly achieve their goals through premature adjudication.

Such a one-sided climax was the case when Paul Martin’s Liberals, with a whipped vote of Cabinet, rammed through the Civil Marriage Act of June, 2005, on the spurious claim that the traditional definition of marriage contravened the Charter of Rights and Freedoms.

Last week’s Potemkin-village fulfillment of Stephen Harper’s pledge to correct that failure—no public consultations, and the NDP and Bloc both whipping their votes to a foregone conclusion—has only exacerbated the bitterness of traditionalists. Disappointingly, even the Post’s editorial board declared the matter closed (“today, gay marriage should be treated as a settled issue”), concluding that the advent of gay marriage has not “ren[t] the social fabric.”

But it has. To accommodate gay parents, Bill C-38 changed the words “natural parent” to “legal parent” in various applicable statutes, thus transferring the locus of power in identifying children’s parents to the state.

Recently, a Saskatoon man, willing and able to parent, saw his biological child arbitrarily given away by the biological mother to people he didn’t know. Those strangers, who have given the infant their name, are refusing access of the real father to his own flesh and blood with the state’s complicity. If this perversion of natural law—directly linked to Bill C-38’s social re-engineering of the traditional family, the pillar of society according to all credible objective indicators—is not a symptomatic rending of the social fabric, then what is?

The syndrome of premature adjudication can be traced to the Court Challenges Program(CCP). Since 1994, the state-funded CCP has, according to its Web site, bankrolled “important court cases that advance language and equality rights guaranteed under Canada’s Constitution.” In practice, its funding has gone mostly to feminists, gay-rights lobbyists and other left-wing groups seeking to use the courts to override democratically elected legislators. In addition to funding social engineers in their court challenges, the CCP has also facilitated their conferences and winked at the bias of their staff appointments in grant-application triage.

In a press release circulated last Friday, the Centre for Cultural Renewal, an Ottawa-based socially conservative think-tank, called upon the Canadian government to replace the politically correct and adversarial CCP with a fresh model designed for consensus rather than the “guillotine of litigation” on complex cultural issues.

The Centre for Cultural Renewal’s executive director, constitutional lawyer Iain Benson, proposes a government funded “Standing Constitutional Forum,” with representation by all stakeholders—not only those activists challenging traditional norms, but also tradition’s defenders—to level the ideological playing field. Such a forum would encourage the kind of genuine civil dialogue and analysis on key debates of the day, such as health care, labour relations and equality, that is so often missing in court-based processes.

According to Benson, the “winnertakes-all” decisions rendered in the Charter litigation crucible are assumed to bring automatic public convergence of opinion, but instead such decisions only further social divisions. For on issues such as gay marriage, “the court can never bring convergence and ought not to where there is permissible disagreement.” In a retrospective gay marriage scenario, a representative constitutional forum would have allowed for discursive exchange on words like “equality,” “harm” and “rights” (especially those of children) in a neutral environment (no reflexive accusations of homophobia), which might have ended in mutual accommodations most Canadians could feel reasonably comfortable with.

Canadians who believe that gay marriage is not about love, but about the state’s creeping usurpation of natural parents’ and their childrens’ rights, are still in shock at Liberal haste to pass that ill-considered and philosophically flawed bill. Premature foreclosure of the democratic process has not brought, and will not bring national peace on gay marriage (just as the differently, but equally flawed Roe vs. Wade has not brought closure to the abortion issue in the U.S.).

Politics makes strange bedfellows, and past performance failures rankle. Still, although sexual traditionalists and postmodernists may never join together in a trip to the moon on gossamer wings, a Constitutional Forum might yet allow them to enjoy a mature, fruitful relationship before one or the other’s ideological clocks run out. The government should give the forum proposal non-partisan consideration, for the ideal of giving satisfaction to competing claimants through compromise has always been a Canadian consummation devoutly to be wished.

Barbara Kay
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