SUSAN T. MCGRATH
“The first thing we do, let’s kill all the lawyers.” This famous line spoken by “Dick the Butcher” in Shakespeare’s Henry VI is often (mis)quoted to disparage the legal profession.
However, understood in context, it is a comment on the importance of the “rule of law” in an enlightened society. The rule of law means that order is imposed not by any one individual or group according to their personal whims, but rather by society, collectively, deciding the best way for its members to live.
By killing the lawyers, Dick wanted the rule of law to be replaced by arbitrariness and mistreatment of the vulnerable for gratification of the mob.
The Canadian Bar Association intervened in the Supreme Court “marriage reference” and supports the government’s Civil Marriage Act. The Bar brings a “rule of law” perspective to the proposed marriage legislation, not religious beliefs or personal biases.
Denying same-sex couples the right to marry signals that same-sex unions do not deserve the same respect and consideration as opposite-sex unions.
Denying the right to marry perpetuates the underprivileged status of gays and lesbians, and touches their sense of dignity at its core. In other words, it is discriminatory.
Some argue that the “traditional” definition of marriage should be retained and the term “marriage” used exclusively for heterosexual unions. The suggestion is that the federal government introduce some alternate system to recognize civil unions that would be equivalent to, but not, marriage.
This “separate-but-equal” rationale doesn’t work in law, because separate is inherently unequal.
This was addressed in U.S. law more than a half-century ago. In Brown v. Board of Education, a case concerning racially segregated schools, the U.S. Supreme Court found that segregation in and of itself was a societal evil, despite the supposed availability of “equal” education for African-American children. The court said that to separate these children from others of similar age and qualifications solely because of their race generated a feeling of inferior status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
Canadians have the famous “Persons” case. In 1929, the Privy Counsel (then the last court of appeal for Canada) recognized women as “persons” under the law, sweeping aside arguments that because the term “persons” traditionally applied to men only at the time of Confederation, it should remain so.
Saying the “traditional” definition of “persons” ought to remain, and that instead another law be passed entitling women to status as “legally recognized entities for certain statutory rights,” doesn’t pass legal, moral or constitutional muster. “Tradition” is simply not an adequate reason under law to deny people the right to live with dignity, and to ingrain inferior status.
Courts in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland and Yukon have said that the “man and woman” definition of marriage is against the Charter.
Striking down a law that violates the Charter only occurs after careful consideration of the effect of the law on our individual rights.
To defend its actions, a government must show that its law is a “reasonable limit” upon our rights, which is “demonstrably justified in a free and democratic society.”
If a determined government cannot articulate a reasonable justification for violating fundamental human rights, it can resort to the notwithstanding clause. Despite what some political leaders would have us believe, only use of the notwithstanding clause can override our courts.
Fortunately, using the notwithstanding clause is unacceptable to most governments.
Invoking the notwithstanding clause harkens back to the “mob rule” that Dick was fomenting to overthrow ordered society, in that Parliament would fail to protect minority rights.
Using the notwithstanding clause to eliminate fundamental rights for minority groups in our inclusive Canadian society crosses into dangerous territory. Where would the removal of our rights as Canadians stop? Free speech? Racial discrimination? Religious practices?
Using the notwithstanding clause to “kill the lawyers,” and deny the right of gays and lesbians to marry is not a viable solution. Following the “rule of law” represented by the Charter, and retaining our common values of diversity, acceptance and democracy is.
Susan T. McGrath is president of the Canadian Bar Association.
CLICK HERE for link to this article on the Toronto Star website.
Egale Canada ©2007