"In defence of tradition: Parliament has the power to preserve the
traditional definition of marriage and extend equal rights to same-sex
couples", says Conservative leader Stephen Harper

My position on the definition of marriage is well known, because it is quite clear. It is not derived from personal prejudice or political tactics, as some Liberal MPs would have us believe with their usual air of moral superiority. My position, and that of most of the members of my party, is based on a very solid foundation and time-tested values. ...

It will come as no surprise to anybody to know that I support the
traditional definition of marriage as a union of one man and one woman to the exclusion of all others, as expressed in our traditional common law. I believe this definition of marriage has served society well, has stood the test of time and is, in fact, a foundational institution of society.

In my view, the onus is on those who want to overturn such a fundamental social institution to prove that it is absolutely necessary, that there is no other compromise that can respect the rights of same-sex couples while still preserving one of the cornerstones of our society and its many cultures.

Up until a few years ago, even within the modern era of the charter,
Canadian law and Canadian society took for granted that marriage was
intrinsic, by definition, an opposite-sex institution. So obvious was this
that until now a formal marriage statute has never been adopted by
Parliament. ...

(F)ormer Supreme Court Justice Gerard La Forest, speaking on behalf of four judges in the majority in the Egan decision, the last case by the way where the Supreme Court addressed the definition of marriage directly, famously said the following:

"Marriage has from time immemorial been firmly grounded in our legal
tradition, one that is itself a reflection of long-standing philosophical
and religious traditions. But its ultimate raison d'etre transcends all of
these and is firmly anchored in the biological and social realities that
heterosexual couples have the unique ability to procreate, that most
children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual."

I point out again, this is what the Supreme Court of Canada actually said, not, as the prime minister emphasizes, mere speculation about what it may say in the future. The statement was also written in 1995, over a decade after adoption of the Charter of Rights and Freedoms, and it remains the only commentary on the fundamental definition of marriage in any Supreme Court decision.

Even years after Justice La Forest's statements, members of the Liberal government still denied any hidden agenda to change the definition of marriage. In fact, the deputy prime minister stood in the House in 1999 and said the following on behalf of the government:

"We on this side agree that the institution of marriage is a central and
important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us.

"The institution of marriage is of great importance to large numbers of
Canadians, and the definition of marriage as found in the hon. member's motion is clear in law.

"As stated in the motion, the definition of marriage is already clear in
law. It is not found in a statute, but then not all law exists in statutes,
and the law is no less binding and no less the law because it is found in the common law instead of in a statute.

"The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is 'the union of one man and one woman to the exclusion of all others.' That case and that definition are considered clear law by ordinary Canadians, by academics and by the courts. The courts have upheld the constitutionality of that definition. ...

"Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same-sex marriages. ...."

Thus spoke at great length the deputy prime minister of Canada, then justice minister, in this chamber less than six years ago.  Today, for making statements that are identical and for identical reasons, members of the government side resort to terms like bigot,
reactionary and human rights violators. The hypocrisy and intellectual dishonesty of the government and some of its members at this point is frankly staggering.

Fundamentally, what has changed since the government, including the prime minister, voted for the traditional definition of marriage in 1999? On this side, we do not believe that merely on the basis of lower court decisions, upheld only because the government refused to appeal them, that a fundamental social institution must be abolished or irretrievably altered. Only a free vote of the Parliament of Canada is an appropriate way to resolve such fundamental social issues. ...

(W)hile there is no perfect answer, and there is no perfect answer that will satisfy everyone, we believe we can and should offer a compromise that would win the support of the vast majority of Canadians who seek some middle ground on the issue. ...

(W)e believe that the vast majority of Canadians believe ... that marriage is a fundamental distinct institution, but that same-sex couples can have equivalent rights and benefits and should be recognized and protected. We believe that our proposals speak to the majority of Canadians who stand in this middle ground and frankly, who seek such a middle ground.

Our proposal is that the law should continue to recognize the traditional definition of marriage as the union of one man and one woman to the exclusion of all others, but at the same time we would propose that other forms of union, however structured, by appropriate provincial legislation, whether called registered partnerships, domestic partnerships, civil unions or whatever, should be entitled to the same legal rights, privileges and obligations as marriage.

Many of these types of unions are already subject to provincial jurisdiction under their responsibility for civil law. However, there are issues affecting rights and benefits within the federal domain, and our party would ensure that for all federal purposes those Canadians living in other forms of union would be recognized as having equal rights and benefits under federal law as well.

What we put forward, in my judgment, is the real Canadian way. The Canadian way is not the blindly, ideological interpretation of the Charter put forward by the prime minister. It is not a case where one side utterly vanquishes the other in a difficult debate on social issues. It is a constructive way, and as debate in other jurisdictions has shown, and I draw this to the attention of the House, this debate will not reach a conclusion or social peace until equal rights, multicultural diversity and religious freedom are balanced....

The government has only proposed one meagre clause to protect religious freedom, a clause which states that religious officials will not be forced to solemnize marriages, but the Supreme Court of Canada has already ruled that this clause is ultra vires. It falls within the provincial responsibility for the solemnization of marriage. Frankly, this section of the bill illustrates the depth of the government's hypocrisy and intellectual dishonesty in this legislation.

On the one hand, the government and its allies claim that any attempt to retain the traditional definition of marriage is unconstitutional on the
basis of a decision the Supreme Court has not made and has refused to make. On the other hand, it is happy to insert into its bill a clause which the Supreme Court has already ruled is unconstitutional and outside of federal jurisdiction.

The government's constitutionally useless clause purports to protect
churches and religious officials from being forced to solemnize same-sex marriages against their beliefs, but this threat has always been only one of many possibilities. ... What churches, temples, synagogues and mosques fear today is not immediately the future threat of forced solemnization, but dozens of other threats to religious freedom, some of which have already begun to arrive and some of which will arrive more quickly in the wake of this bill. ...

We have already seen a Catholic Knights of Columbus hall challenged before the B.C. Human Rights Commission for refusing to grant permission for a same-sex wedding reception on church-owned property. We have seen civil marriage commissioners in B.C., Saskatchewan and Manitoba, who have religious or philosophical objections to same-sex marriage, removed or threatened to be removed from positions by their government. We have heard the federal minister responsible for democratic reform saying such employees should be punished or fired.

We have seen the minister of International Trade saying that churches, including the Catholic Church in Quebec, have no right to be involved in any such debate. These may only be the beginning of a chilling effect on religious freedom for those groups and individuals who continue not to believe in same-sex marriage.

Indeed, given the ferocity of the prime minister's new position, given the refusal to compromise, given the belief that any opposition to same-sex marriage is akin to racial discrimination, the attack on religious freedom will inevitably continue on any aspect of religion that interfaces in any way with public life. ...

Parliament can ensure that no religious body will have its charitable status challenged because of its beliefs or practices regarding them. Parliament could ensure that beliefs and practices regarding marriage will not affect the eligibility of a church, synagogue, temple or religious organization to receive federal funds, for example, federal funds for seniors' housing or for immigration projects run by a church.

Parliament could ensure that the Canadian Human Rights Act or the
Broadcasting Act are not interpreted in a way that would prevent the
expression of religious beliefs regarding marriage. Should the bill survive second reading, we will propose amendments in areas
like these to ensure that in all areas subject to federal jurisdiction
nobody will be discriminated against on the basis of their religious beliefs or practices regarding marriage. ...

Some people have suggested that we cannot do what we propose to do; that is, preserve marriage as the union of one man and one woman while extending equal rights and other forms of union without invoking the notwithstanding clause of the Constitution. ...

The attack is dishonest on several levels. First of all, and this is
important when we start talking about the notwithstanding clause, the
Liberal Party and this prime minister have no leg to stand on when it comes to preaching about protecting human rights and the notwithstanding clause. It was none other than Prime Minister Pierre Trudeau, the author of the Charter, who accepted the notwithstanding clause. Far from believing it to be a necessary evil to win support for the Charter, he promised to use it. Specifically, he promised the late Cardinal Gerald Emmett Carter that he would use the notwithstanding clause to uphold Canada's legislation on abortion if it were struck down by a future Supreme Court. ...

I have said I would not use Section 33 to preserve the traditional
definition of marriage because quite simply it is not necessary in this
case. The Supreme Court of Canada has not ruled on the constitutionality of the traditional definition of marriage. The court pointedly declined to do so in the recent same-sex reference case, despite a clear request from the prime minister that it do so. In fact, the Court openly speculated on the possibility that it could uphold the traditional definition. Therefore, there is simply no reason to use or discuss the notwithstanding clause in the absence of a Supreme Court decision, especially when it involves precedent based only on common law judgments. ...

We have every reason to believe that the Supreme Court, if it were
eventually asked to rule on a new statutory definition of marriage combined with full and equal recognition of legal rights and benefits for same-sex couples might well choose to act in a much more deferential manner toward the Canadian Parliament than lower courts showed toward ancient, British made, common law definitions. ...

In short, we have every reason to believe if the House moved to bring in a reasonable, democratic, compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions, and which fully protected freedom of religion to the extent possible under federal law, that the Supreme Court of Canada would honour such a decision by Parliament.

The courts refused to answer the prime minister's question on the
constitutional validity of the common law opposite-sex definition of
marriage because they did not want to pre-empt the work of Parliament. That suggests to me that they would be even more likely to defer to the judgment of Parliament when faced with a recently passed statute. ... I want to address an even more fundamental question. That is the question of the issue of human rights as it pertains to same-sex marriage and the use and the abuse of the term "human rights" in this debate which has been almost without precedent.

Fundamental human rights are not a magician's hat from which new rabbits can constantly be pulled out. The basic human rights we hold dear: freedom of speech, freedom of religion, freedom of association, and equality before the law ... are well understood and recognized around the world.

The prime minister cannot through grand rhetoric turn his political decision to change the definition of marriage into a basic human right because it is not. It is simply a political judgment. It is a valid political option if one wants to argue for it; it is a mistaken one in my view, but it is only a political judgment. Same-sex marriage is not a human right. This is not my personal opinion. It is not the opinion of some legal adviser. This reality has already been recognized by such international bodies as the United Nations Commission on Human Rights.

Mr. Speaker, I refer you to New Zealand's Quilter case. In 1997, the New Zealand Court of Appeal was asked to rule on the validity of the common law definition of marriage in light of the New Zealand Bill of Rights which, unlike our Charter, explicitly prohibits discrimination based on sexual orientation. New Zealand's court ruled that the opposite-sex requirement of marriage was not discriminatory. So the plaintiffs in this case made a complaint to the United Nations Commission on Human Rights that the New Zealand court violated the international covenant for the protection of rights to which New Zealand, like Canada, is a signator. But the UNCHR rejected this complaint in 2002, in effect upholding that same-sex marriage
is not a basic universal human right.

If same-sex marriage were a fundamental human right, we have to think about the implications. If same-sex marriage were a fundamental right, then countries as diverse as the United Kingdom, France, Denmark and Sweden are human rights violators. These countries, largely under left-wing governments, have upheld the traditional definition of marriage while bringing in equal rights and benefits regimes for same-sex couples, precisely the policy that I and the majority of the Conservative caucus propose.

Even those few countries that have brought in same-sex marriage at the national level, currently only the Netherlands and Belgium, did not do so because their own courts or international bodies had defined this as a matter of human rights. They did so simply as the honest public policy choice of their legislatures. In fact, both the Netherlands and Belgium legislated some differences in same-sex marriage as opposed to opposite-sex marriage in many areas but particularly in areas like adoption. In other words, no national or international court, or human rights tribunal at the national or international level, has ever ruled that same-sex marriage is a human right.
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This article is taken from Mr. Harper's speech to Parliament on Feb. 16, 2005.