Caution: Slippery Slope
The natural limits of marriage
Equal
Marriage, October 11, 2004
http://www.samesexmarriage.ca/legal/ref111004.htm
The lawyer representing Canada’s Attorney General
shocked supporters and opponents of marriage equality last week when he fell
down the fabled “slippery slope” of same-sex marriage and into what the
Supreme Court of Canada called “deep waters”.
Peter Hogg, considered by many to be Canada’s leading
authority on constitutional law, performed more like a professor than a legal
advocate during a spectacular misunderstanding of a question from the Supreme
Court of Canada.
It happened early on Oct. 6, during the reference hearing
on proposed legislation that will roll-out marriage equality to the remaining
have-not provinces and territories. The court was concerned about the
government’s response to jurisdiction concerns raised by Alberta and Quebec
(both interveners opposed to the proposed federal legislation, for different
reasons).
Justice Lebel first asked whether the proposed federal
act would impose itself on existing provincial legislation, such as Quebec’s
civil union legislation.
Hogg replied that federal legislation was dealing
specifically with marriage and that if provinces had equivalent institutions,
that was their business and they were not impacted by the federal legislation.
Justice Binnie probed further, asking, “Do you accept
that there are limits to the notion or subject matter of marriage, and if so
what are the limits?”
“We do accept that there are limits to the word
marriage,” Hogg answered. “It is difficult to place a definite
articulation of those limits. In 1867, and perhaps this is the point I was
coming to, and perhaps this is a helpful way to approach your question, in
1867 nobody contemplated that marriage would extend to same-sex couples.
Homosexuality between consenting adults was actually criminal and remained
criminal until 1969 ... I think it is very hard to say what changes in society
might occur over the next 100 years which would invite perhaps other changes
to marriage. All we say is that today, in 2004, it makes senses for marriage
to encompass same-sex couples as well as opposite sex couples.”
The court remained quiet, allowing Hogg to continue a
presentation that tried to address the “capacity” issues of marriage,
rather than the court’s concern regarding federal and provincial
jurisdiction.
Lawyer Douglas Elliott, representing the Metropolitan
Community Church of Toronto marriages, later told us, “Professor Hogg’s
presentation was at times, well, professorial. For those of us who are more
accustomed to the role of legal gladiators than detached academics, we were
uncomfortable with his readiness to make concessions. In particular, his
concession that he could not define the natural limits of the marriage power
of the federal government.”
Natural limits of marriage—The slippery slope
Peter Hogg reiterated the court’s interest, still not
quite understanding, “The question is, ‘Are the natural limits of marriage
exceeded by a same-sex relationship?’”.
Justice Lebel tried to be helpful. “You left me with
some uncertainty as to the nature of your position as to the scope of the
federal power over marriage at this stage. Once we remove the traditional
marker that existed in 1867 ... what would be the core that would really
identify this federal power? What is the marker? Is it possible to define
it?”
But Hogg wasn’t thinking about federal or provincial
limits. He seemed to be thinking that the court had raised the concerns of our
opponents: that gay marriage was on the “slippery slope” to polygamy,
incest, and bestiality.
“I wouldn’t attempt to define the outer limits of
marriage, in a way that I could be confident would work in 100 years time
because I do believe that marriage ...” Hogg again indulged in an academic
exploration of the possibilities.
“He seemed to be avoiding questions from the Bench, or
not offering helpful answers when asked about the natural limits,” Douglas
recalled. “When he said he admitted he could not define them, I cringed. I
commented afterward to him that he was tap dancing so well, I wanted to offer
him a top hat and cane.”
The court continued to try to get Hogg to speak about the
limits of federal power, but Hogg kept returning to the sexual limits of
marriage, rather than the legislative limits. “I wouldn’t attempt to
define the outer limits of marriage, in a way that I could be confident would
work in 100 years time ... What we say today is that the traditional
opposite-sex requirement of marriage is not an essential requirement of
marriage ... The natural limits of marriage, which I acknowledge I cannot
define, but I submit that the natural limits of marriage are not exceeded by
admitting same-sex relationships to the institution, if parliament so
chooses.” Attorney General of Canada, Supreme Court of Canada, Oct. 6, 2004
“I’m not asking you to do this. I’m asking you to
assist us today, with a case we’re dealing with today.” Justice Lebel
said.
“What we say today is that the traditional opposite-sex
requirement of marriage is not an essential requirement of marriage ...”
Hogg continued, defending an unchallenged front. “The natural limits of
marriage, which I acknowledge I cannot define, but I submit that the natural
limits of marriage are not exceeded by admitting same-sex relationships to the
institution, if parliament so chooses.”
“On reflection,” Douglas offered an explanation for
Hogg’s unexpected behaviour, “I believe he was simply adopting a strategy
that we had tried unsuccessfully in the Divisional Court, namely try to steer
the Court toward restricting itself to allowing same sex marriage without
worrying about the ramifications. Unfortunately, I think he was answering the
wrong question. The Court was not troubled by the future limits around things
like polygamy, which seemed to be where Professor Hogg was heading. Rather,
they were wrestling with the boundary between the provincial and federal
power. This boundary was more in issue in this case than any other because
Alberta denied federal competence over the matter at all, and Quebec and one
other intervener denied federal competence to protect religious officials.
Justice Lebel and Bastarache, and to a certain extent Justice Binnie were
wrestling with this in light of Quebec’s civil unions which look a lot like
civil marriages including same sex marriage.”
Natural limits of marriage—Quebec & Alberta
Quebec was at the Supreme Court of Canada reference to
argue that the province gets to decide issues related to solemnization and
clergy (and their protected rights).
“The opponents want sweeping statements, and we do, to
a certain extent, to ensure passage of the bill,” Douglas told us. “Quebec
wants to reserve the right to restrict religious officials in the future, and
the province cannot do so if the feds have occupied the field. I sensed
considerable sympathy for this argument. Especially as the main case relied on
by Professor Hogg on this point was written by Justice Lebel, who said that
his decision was being stretched too far by the feds.”
Quebec’s defence of its turf may have unintended
impacts on religious groups opposed to homosexuality.
“Quebec is taking the position only to defend its
turf,” Douglas said, “but it may have the unintended consequence of
fortifying our opponents in the eventual debate in Parliament. Any shadow cast
on absolute freedom of clergy to say no will be used to whip the religious
right into a frenzy of paranoia.”
Alberta’s interest is much more fundamental. The
province is Canada’s only jurisdiction to argue that marriage is defined by
heterosexuality (in essence an appeal of the June 10, 2003 Ontario Court of
Appeal decision). Alberta argues that anything other than marriage is a matter
of provincial jurisdiction, and that the feds cannot impose marriage equality
on a province.
“Justice Bastarache may buy this argument, and possibly
Justice Lebel, however I predict that it is more likely that we will have an
8—1 split on this issue in our favour,” Douglas said. “No matter what
the opinion is, since it is not binding, Alberta will make the argument again
in any future case there. Having said that, I think all the judges are
struggling with how to define the “natural limits” that define federal as
opposed to provincial jurisdiction. As Justice Lebel noted, it is more than a
word that is a trade mark of the federal government. I predict that they will
have a hard time with this but will solve it.”
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