North Western Winds

Contemplating it all from the great Pacific Northwest

Harper in the House

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“this debate will not reach a conclusion or social peace until equal rights, multicultural diversity and religious freedom are balanced”

Tory Leader Stephen Harper was very good in the house of commons this week. Here’s a long reprint of his response to Paul Martin’s introduction of the SSM bill:

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.

We also oppose the government’s bill because it is a clear threat to religious freedom. We are proposing amendments that will prevent any religious discrimination within the sphere of federal authority.

This bill, by failing to find a reasonable compromise, a reasonable middle ground on the central question of marriage, is fundamentally flawed.

There is a second major flaw. The so-called protection that the government has offered for even basic religious freedom is, frankly, laughably inadequate. It is totally dishonest to suggest that it provides real protection.

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. We note the Prime Minister did not choose to address a single other possibility. 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.

this Parliament can protect the institution of traditional marriage very well and respect the rights and privileges of those who chose another form of union, without departing from the Charter of Rights and Freedoms in our Constitution.

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.

I am going to take a little time on this. It is red herring argument, but we might as well spell it out. 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.

In the more recent debate over same sex marriage, in an earlier phase of it, this Prime Minister promised that he would use the notwithstanding clause should a court ever infringe on religious freedom, although of course no one takes his commitments to religion seriously any more.

In fact, this Prime Minister was a member of Parliament from Quebec in 1989 when the provincial government in his province used the notwithstanding clause to ban English on commercial signs. He had next to nothing to say about it then and in the subsequent Liberal leadership race in less than a year he supported the notwithstanding clause.

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional. Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.

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.

The members of the House, starting with the Minister of Justice, should actually read the same sex reference decision. I ask, if the Supreme Court actually believed that the traditional definition of marriage was a fundamental violation of human rights as, say, restricting aboriginal Canadians or non-Caucasian immigrants from voting, do we really think the Supreme Court would have engaged in an analysis of the possibility that it could uphold such a law even hypothetically? The answer is, of course not.

The government has also claimed and is still claiming that marriage between persons of the same sex is a fundamental right. That is another erroneous opinion and a totally specious argument the government wants to spread. Government spokespersons bring disgrace on themselves, however, when they wrongly try to invoke the Charter of Rights and Freedoms to cover up their threadbare arguments.

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, the kind of rights that are routinely violated by the Prime Minister’s good friends in states such as Libya and China, are well understood and recognized around the world. These rights do not depend on Liberal bromides or media spinners for their defence.

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.

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.

The Minister of Justice, when he was an academic and not a politician, would have appreciated the distinction between a legal right conferred by positive law and a fundamental human right which all people should enjoy throughout the world. Today he is trying to conflate these two together, comparing a newly invented Liberal policy to the basic and inalienable rights and freedoms of humanity.

I have to say the government appears incapable of making these distinctions. On the one hand the Liberals are friends of dictatorships that routinely violate human rights to whom they look for photo ops or corporate profits. On the other hand they condemn those who disagree with their political decisions as deniers of human rights, even though they held the same positions themselves a few years, or even a few months ago.

Quite frankly the Liberal Party, which drapes itself in the charter like it drapes itself in the flag, is in a poor position to boast about its human rights record. Let us not forget it was the Liberal Party that said none is too many when it came to Jews fleeing from Hitler. It was the Liberal Party that interned Japanese Canadians in camps on Canada’s west coast, an act which Pierre Trudeau refused to apologize or make restitution for, leaving it to Brian Mulroney to see justice done. Just as it was Mr. Mulroney and Mr. Diefenbaker who took the great initiatives against apartheid, Mr. Diefenbaker with his Bill of Rights, and I did not see a notwithstanding clause in that. It was the Liberal Party that imposed the War Measures Act.

New Canadians know that their cultural values are likely to come under attack if this law is passed. They know that we are likely to see disputes in the future over charitable status for religious or cultural organizations that oppose same sex marriage, or over school curriculum and hiring standards in both public and private religious and cultural minority schools.

New Canadians, many of whom have chosen Canada as a place where they can practise their religion and raise their family in accordance with their beliefs and without interference from the state, know that these legal fights will limit and restrict their freedom to honour their faith and their cultural practices.

Of course, in all of these cases, courts and human rights commissions will attempt to balance the basic human rights of freedom of religion and expression with the newly created legal right to same sex marriage, but as our justice critic has remarked, we have a pattern: wherever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights seem to trump.

The Liberals may blather about protecting cultural minorities, but the fact is that undermining the traditional definition of marriage is an assault on multiculturalism and the practices in those communities.

All religious faiths traditionally have upheld the belief that marriage is a child-centred union of a man and a woman, whether Catholic, Protestant, Jewish, Hindu, Sikh or Muslim. All of these cultural communities, rooted in those faiths, will find their position in society marginalized.

I believe the Liberal vision of multiculturalism is really just a folkloristic one. The Liberals invite Canadians from cultural communities to perform folk dances and wear colourful costumes, but they are not interested in the values, beliefs and traditions of new Canadians unless they conform to the latest fashions of Liberalism. All races, colours and creeds are welcome in Liberal Canada as long as they check their faith and conscience at the door.

There are fundamental questions here. Will this society be one which respects the longstanding basic social institution of marriage or will it be one that believes even our most basic structures can be reinvented overnight for the sake of political correctness?

Will this society be one which respects and honours the religious and cultural minorities or one which gradually whittles away their freedoms and their ability to practise their beliefs?

Will this be a country in which Parliament will rule on behalf of the people or one where a self-selected group of lawyers or experts will define the parameters of right and wrong?

When Harper is in this mode I see someone who might make a terrific PM if we would ever give him a chance. Intelligent and moderate, reasonable and smart, I think he represents Canada and Candians far better than the dizzying zealotry we are seeing from the party in red. Note that in saying this, I am not “getting what I want” from the Tories in the simple sense of just getting what I want. In this case, getting what I want means reasonable, boring, efficient government. It’s a compromise I’m willing to accept.

Go on and read the whole thing. The sky is not falling.

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Written by Curt

February 18, 2005 at 5:52 pm

Posted in Uncategorized

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