Friday, July 01, 2005

Thoughts on same-sex marriage legal issues

IT HAS BEEN a long road for same-sex marriage advocates and opponents.

I have been a little disappointed with the manner in which the matter actually became legalized. The issue was brought before the courts incessently in a trial and error basis - there were many rulings contra couples before the famous Ontario decision Halpern et al. v. Attorney General of Canada. That decision does not deserve to be heeded, as it is a terrible legal decision. If you want to know more of why I think this, I'd be happy to explain why to you.

But the legal decision paved the way for legislative legitimacy, and the further legitimacy in the eyes of Canadian society. The law is a teacher. And it has a certain authoritative majesty associated with it. Advocacy in Canada now appears to be rooted in this type of wide legitimacy than on its own merits in se.

THE BIG ISSUE NOW is religious freedom and the new civil marriage act. Now I have two main thoughts on this:

  1. One, that the government and Supreme Court even, is and has not done enough to give religious and governmental officials the certainty the law requires. That is, there is great ambiguity over what the effects of the bill are. The Liberals appear to want to ram the bill through and pull a Cecil Rhodes by saying "the consequences by damned!" However, there is great uncertainty created by this law which offends the very basis of our constitutional society, the concept of the rule of law (which requires forewarning).
  2. Even though there is ambiguity, I think there is good precedent to allow for protections of people preforming same-sex marriages. The starting basis for any analysis of precedent is the Magna Carta:

    We have granted to God, and by this our present Charter have confirmed, for us and our Heirs for ever, That the Church of England shall be free, and shall have her whole rights and liberties inviolable.

    Here, the Magna Carta confirms that law is agreement. Agreement is prospective and prescriptive. Law has authority because it is static. Secondly, it affirms that the Church of England, or the Church in general, shall be free from royal interference. This is in line with a Lockean and Spinozan concept of religious freedom, which permits not only freedom of religious thought but actions based on that sort of religious beliefs. The Magna Carta affirms that religious groups are protected from state interference that would violate the beliefs of religious groups.

    The trickier subject is government officials ie. a judge who has an objection to same-sex marriage. My thinking is much in line with how abortion is treated by doctors: if a doctor does not want to preform an abortion due to religious beliefs, the doctor does not have to. I think that is the way things are. If I am wrong, please let me know.

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