Sun Jan 16/05
It never ends…

Norman Spector responds to my January 11 piece:

Two points are outstanding.

First: None of the legal arguments to which I refer in my column involves an Act of Parliament — either the Criminal Code or the Marriage Act. After a Court makes a Charter decision, governments must bring their legislation into conformity. Sometimes a hundred or more acts have to be amended, so don't lose any sleep over having to change this or that piece of legislation.

In my column, which you've now linked, I was referring to legal arguments that would be made before the Court:

As a conservative, I can think of several reasons it would not be in Canada's interest to become the third country to legalize same-sex marriage. However, if the Supreme Court dismissed these arguments, I can't think of a single additional reason to prohibit a woman from voluntarily choosing to become Paul Martin's second wife, assuming Sheila Martin also agreed.

Second: We've agreed that the slippery slope argument is a bust. We've also agreed that the big difference between a guy who wants to marry another guy and my friend who wants to be Paul Martin's second wife is in political acceptability.

MY RESPONSE. A clarification: Norman's friend is a "normal" person in every respect except that she wishes to marry, 100 percent consensually, an already-married man (and except that she wants to marry Paul Martin at all, I suppose). So yes, the "big difference" between gay marriage as a general concept and this very specific hypothetical case of a healthy, non-coercive polygamous marriage is the vastly superior political (and social) acceptability of the former over the latter. I'm not sure how Spector feels about the real-world manifestations of gay marriage versus those of polygamy, but I see bigger differences there than political acceptability. Colby Cosh called them "urbanoid prejudices," though he later conceded their veracity, and I think I've outlined them all in this space before.

Political acceptability, not human rights, explains why the government is confining marriage to two people in its re-definition of marriage. Political, not legal issues explain why the government is discriminating against my female friend who wants to be Martin's second wife.

MY RESPONSE. Conditionally granted, but though we haven't had a law against homosexual behaviour on the books for decades, we currently have one against polygamy. I'm through arguing whether that's an obstacle to Mrs Paul Martin II's petition — Spector obviously thinks it isn't — but surely the same spirit of intolerance for polygamy that informed the law and that keeps it in place is informing the government's discrimination. It's more political than it is legal, absolutely, but it's also a much purer and more vehement form of discrimination than what comes from our current crop of anti-gay marriage MPs. And with good reason, I would argue.

You've yet to raise one argument backed with evidence why discriminating against this person would be demonstrably justified in a free and democratic society. Unless, perish the thought, you believe that allowing my female friend to marry whom she damn wants to marry would be a slippery slope to institutionalized polygamy.

MY RESPONSE. Not a slippery slope but a slippery swoop — as in "one fell." If Norman's friend marries Paul Martin, and the relevant legislation is brought into conformity, then polygamy will be legal. I don't know whether that would cause the people of Bountiful to saddle up the oxen and head immediately to City Hall, and I wouldn't much care, as the damage would have been done. Having made the lifestyle legal, it would be extremely difficult if not impossible to investigate all but the most serious allegations of abuse that come out of polygamous communities. True, the police seem unwilling to test the law as it stands anyway, but I'm still hoping for an about face on that policy. Whether the protection of those children would carry the day as an argument "why discriminating against [Mrs Paul Martin II] would be demonstrably justified" I cannot say, but that's the argument I'm making.

I'm simply arguing that, since the decisions on same-sex marriage and my female friend involve public opinion and public opinion evolves over time, they essentially are political questions, not ones that should be settled by the courts.

AND FINALLY... I think it's worth pointing out one last time that despite all the times in this debate in which both Spector and I put "same sex marriage" and "polygamy" in the same sentence, we agree that they have nothing to do with each other. Mrs Paul Martin II's petition does not depend on gay marriage having been enshrined into law — it could just as easily be happening right now. It could just as easily have happened five years ago. Ultimately, it's my belief that it probably never will happen (never mind that even if it does, I think we have grounds to defeat it) that gets me to sleep at night.

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