Justices weigh marriage arguments

Deborah Gyapong
Special to ChristianWeek

OTTAWA, ON–After landmark hearings October 6 and 7, nine Supreme Court justices must now weigh arguments from 25 interveners on questions Canada’s Attorney General (AG) referred to the court prior to tabling legislation changing the definition of marriage.

Focus on the Family Canada, The Evangelical Fellowship of Canada (EFC), and the Canadian Conference of Catholic Bishops were among the interveners.

"We ask for religious freedom," said EFC president Bruce Clemenger as the hearings commenced. "We’ve felt like the underdogs. It is an uphill battle."

Clemenger said what hangs in the balance is whether public space in Canada will be open to the expression of religious views that oppose same-sex marriage, or will "there be legal censure or public condemnation" for the expression of those views.

The judges are expected to render their decision sometime this winter. They must balance equality rights and religious freedoms, determine constitutional issues of jurisdiction, and make sure that the highest court isn’t being used for political purposes.

Justice Michel Bastarache asked government lawyers if the AG wasn’t asking the courts to create a "hierarchy of rights" where equality would trump religious freedom. He asked if the AG was giving a political role to the courts by getting a legal decision to guide Parliament in its deliberations.

"Parliament wants to introduce and pass a bill in any case," Bastarache said. "That seems to me to be a political role for the court. The legal role is not there."

David M. Brown, counsel for Focus on the Family Canada, argued that the federal government does not have the jurisdiction to change the definition of marriage through simple legislation, only through a constitutional amendment.

The constitution does not allow the courts to amend it unilaterally by changing the common law, he said. "You can’t use one part of the constitution [the Charter] to cut down another part."

Peter Jervis, representing the Interfaith Coalition on Marriage and the Family, told the court that that they faced "a fundamental social policy issue of a generation."

Jervis said at stake were two different visions of a pluralistic society. Is toleration merely a step towards one uniform point of view, he asked, a view that could stigmatize and marginalize religious groups that cannot accept same-sex marriage.

"I think [the judges] understood some of the specific concerns," Jervis said after the hearings.