Hilary White

Redefining marriage threatens social advances of women, rights of children: UK law professor

Hilary White
Hilary White
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LONDON, November 7, 2012 (LifeSiteNews.com) – The debate about same-sex “marriage” in the UK is not, as the government and other supporters would have it, about “equality,” “rights” or “fairness,” but about “using law to change the meaning of the social institution of marriage.” So says Julian Rivers, a Professor of Jurisprudence at the University of Bristol Law School.

Any new definition of marriage that would include partnerships not based on a single man and a single woman for the procreation and protection of children, would “unavoidably call into question its exclusivity, its permanence and even its sexual nature,” said Rivers in a report issued by the Jubilee Centre, “a Christian social reform organisation that offers a biblical perspective on issues and trends of relevance to the general public”. Titled “Redefining Marriage: a case for caution,” it is being submitted to the government as part of the ongoing consultation on “gay marriage.”

“Changing the legal definition of marriage will likewise reflect and support a different view of what marriage is and what it is for.”

According to Rivers, any such change will confirm and bolster the already dangerous trends of “excessive individualism of modern Western society, as well as the collapse of participation in all forms of social action.” It will “reduce” marriage to being only for “sexually-intimate companionship,” disconnecting the institution from its biological and societal functions.

It will also create a social threat to the wellbeing of children, Rivers said. Referring to the UN’s Convention on the Rights of the Child, he said, “Every child has a moral claim on her natural father and mother, grounded in the fact that they brought her into being and that it is in principle good for every child to be brought up by her natural parents committed in relationship to each other and to her.”

“Breaking the intrinsic connections between marriage, childbearing and kinship risks the further commodification of children, in which children become ‘ultimate accessories’ – means to the ends of their parents, and ultimately subject to their agendas, rather than persons of equal worth, with an equal stake in the success of the marriage.”

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The notion that natural marriage “discriminates” based on sexual orientation is the basis of the argument for same-sex “marriage,” Rivers said. But the real question is whether this discrimination is unjust. Rivers argues that far from traditional marriage being unjust, it “secures the equal value of men and women,” and “promotes the welfare of children.” Civil partnerships already grant other types of unions full legal security.

“Any law which sets criteria for anything discriminates,” he wrote. While it is right to prohibit distinctions based on sex, race, religion or age in political life, business or employment, “sometimes it is right to draw distinctions even on these grounds.” He gave the example of the law that prohibits children under 16 from marrying.

The government’s proposals have failed “to distinguish rationally between relationships and arrangements which are and are not to be treated as marriage in law.”

Moreover, redefining marriage to create a new “gender-blind” institution will threaten the legitimate social advances made by women over the last 100 years.

“Marriage as currently defined is the central social institution which expresses the idea that men and women are equally valuable as men and women. It is only marriage which harnesses gender difference to the purposes of social cooperation.

“Almost all other ways in which difference is acknowledged – from sports teams to public lavatories – depend on segregation. Sexual union in marriage reinforces a comprehensive ‘together-in-otherness’ of male and female.”

Rivers said that the arguments against same-sex “marriage” coming from religious convictions are legitimate and need to be heard – particularly in a country where the great majority identify themselves as Christian – but are not the only arguments worth making. The government’s proposal, he wrote, fails to address “the fundamental question of what a marriage is, and thus it fails to identify and defend the boundaries of any new definition”.

“At root,” he said, the meaning of marriage is socially, not legally defined. It is not the law that makes marriage what it is, but the law that follows the “socially-given expectations”. Marriage itself, in other words, is the underlying, objective reality with the law merely following that template. 

He also warned that the creation of same-sex “marriage” will put a premature end to discussion of the open question of the impact on children of being raised in homosexual households. The popular opinion in government is that there is no “significant deficit” for children raised by two same-sex partners. However, Rivers wrote, “the distinctive gender roles of a father and a mother are important in the psychological development of children.”

“It must be at least possible that having two ‘fathers’ or ‘mothers’ will not compensate for the absent mother/father-figure.” Currently same-sex partners can both adopt and foster children; “redefining marriage will render these developments immune from reconsideration. Such confidence seems premature.”

The government has made arguments for “gay marriage” based on notions of “equality, stability and convenience” but, Rivers said, these are poorly thought out reasons for changing so fundamental an institution as marriage: “on closer inspection, these are respectively incomplete, speculative and negligible.”

The government was “disingenuous” in making a distinction between “civil” and “religious” marriage in its proposal, he added. The distinction is legally non-existent, and socially, “we don’t think of people as ‘religiously married’ or ‘civilly married’ they are just ‘married’.”

The government has made reassurances that religious groups will not be forced to participate in “gay marriage” ceremonies, but nearly all religious groups in the country have at least expressed serious misgivings in the light of several high-profile lawsuits against Christians who have opposed the homosexualist movement’s agenda in various ways. Christian marriage counselors and civil marriage registrars have already been sacked for refusing to participate and the government is currently arguing against freedom of religious expression at the European Court of Human Rights.


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Quebec groups launch court challenge to euthanasia bill

LifeSiteNews staff
By LifeSiteNews staff

As announced when the Quebec legislature adopted Bill 52, An Act respecting end-of-life care, the citizen movement Living with Dignity and the Physicians’ Alliance against Euthanasia, representing together over 650 physicians and 17,000 citizens, filed a lawsuit before the Superior Court of Quebec in the District of Montreal on Thursday.

The lawsuit requests that the Court declare invalid all the provisions of the Act that deal with “medical aid in dying”, a term the groups say is a euphemism for euthanasia. This Act not only allows certain patients to demand that a physician provoke their death, but also grants physicians the right to cause the death of these patients by the administration of a lethal substance.

The two organizations are challenging the constitutionality of those provisions in the Act which are aimed at decriminalizing euthanasia under the euphemism “medical aid in dying”. Euthanasia constitutes a culpable homicide under Canada’s Criminal Code, and the organizations maintain that it is at the core of the exclusive federal legislative power in relation to criminal law and Quebec therefore does not have the power to adopt these provisions.

The organizations also say the impugned provisions unjustifiably infringe the rights to life and to security of patients guaranteed by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. They further infringe the right to the safeguard of the dignity of the person, which is also protected by the Quebec Charter.

In view of the gravity of the situation and the urgent need to protect all vulnerable persons in Quebec, they are requesting an accelerated management of the case in order to obtain a judgment before the Act is expected to come into force on December 10, 2015.


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Colorado baker appeals gvmt ‘re-education’ order

LifeSiteNews staff
By LifeSiteNews staff

A Colorado cake artist who declined to use his creative talents to promote and endorse a same-sex ceremony appealed a May 30 order from the Colorado Civil Rights Commission to the Colorado Court of Appeals Wednesday.

The commission’s order requires cake artist Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations, forces him to re-educate his staff that Colorado’s Anti-Discrimination Act means that artists must endorse all views, compels him to implement new policies to comply with the commission’s order, and requires him to file quarterly “compliance” reports for two years. The reports must include the number of patrons declined a wedding cake or any other product and state the reason for doing so to ensure he has fully eliminated his religious beliefs from his business.

“Americans should not be forced by the government – or by another citizen – to endorse or promote ideas with which they disagree,” said the cake artist’s lead counsel Nicolle Martin, an attorney allied with Alliance Defending Freedom. “This is not about the people who asked for a cake; it’s about the message the cake communicates. Just as Jack doesn’t create baked works of art for other events with which he disagrees, he doesn’t create cake art for same-sex ceremonies regardless of who walks in the door to place the order.”

“In America, we don’t force artists to create expression that is contrary to their convictions,” added Alliance Defending Freedom Senior Legal Counsel Jeremy Tedesco. “A paint artist who identifies as homosexual shouldn’t be intimidated into creating a painting that celebrates one-man, one-woman marriage. A pro-life photographer shouldn’t be forced to work a pro-abortion rally. And Christian cake artists shouldn’t be punished for declining to participate in a same-sex ceremony or promote its message.”

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In July 2012, Charlie Craig and David Mullins asked Jack Phillips, owner of Masterpiece Cakeshop, to make a wedding cake to celebrate their same-sex ceremony. In an exchange lasting about 30 seconds, Phillips politely declined, explaining that he would gladly make them any other type of baked item they wanted but that he could not make a cake promoting a same-sex ceremony because of his faith. Craig and Mullins, now represented by the American Civil Liberties Union, immediately left the shop and later filed a complaint with the Colorado Civil Rights Division. The case now goes to the Colorado Court of Appeals as Masterpiece Cakeshop v. Craig.

“Jack, and other cake artists like him – such as those seen on TV shows like ‘Ace of Cakes’ and ‘Cake Boss’ – prepare unique creations that are inherently expressive,” Tedesco explained. “Jack invests many hours in the wedding cake creative process, which includes meeting the clients, designing and sketching the cake, and then baking, sculpting, and decorating it. The ACLU calls Jack a mere ‘retail service provider,’ but, in fact, he is an artist who uses his talents and abilities to create expression that the First Amendment fully protects."

Celebrity cake artists have written publicly about their art and the significant expressive work that goes into the artistic design process for wedding cakes.


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Prisoner of conscience Mary Wagner appeals her conviction

Tony Gosgnach
By Tony Gosgnach

TORONTO -- As promised, Mary Wagner has, through her counsel Dr. Charles Lugosi, filed a formal notice of appeal on numerous points regarding her recent, almost two-year-long court case that ended on June 12.

Justice Fergus O’Donnell of the Ontario Court of Justice rejected every application made by the defence – including for access to abortion center records, public funding, standing for a constitutional challenge and for expert witnesses to be heard – before he found Wagner guilty and sentenced her to five months in jail on a charge of mischief and four months on four counts of failing to comply with probation orders.

He further levied two years of probation, with terms that she stay at least 100 metres away from any abortion site. However, because Wagner had spent a greater time in jail than the sentence, she was freed immediately. She had been arrested at the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto on August 15, 2012 after attempting to speak to abortion-bound women there. She then spent the duration of the trial in prison for refusing to sign bail conditions requiring her to stay away from abortion sites.

Wagner is using the matter as a test case to challenge the current definition of a human being in Canadian law – that is, that a human being is legally recognized as such only after he or she has fully emerged from the birth canal in a breathing state.

Wagner’s notice states the appeal is regarding:

  • Her conviction and sentence on a single count of mischief (interference with property),
  • Her conviction and sentence on four counts of breach of probation,
  • The order denying public funding,
  • The order denying the disclosure of third-party records,
  • The order denying the admission of evidence from experts on the applicant’s constitutional challenge concerning the constitutional validity of Section 223 of the Criminal Code,
  • The order denying the admission of evidence from experts concerning the construction of Section 37 of the Criminal Code,
  • The probation order denying Wagner her constitutional rights to freedom of speech, freedom of expression, freedom of conscience and freedom of religion on all public sidewalks and public areas within 100 metres of places where abortions are committed,
  • And each conviction and sentence and all orders and rulings made by O’Donnell.

In the notice of appeal, Lugosi cites numerous points on which O’Donnell erred:

  • He denied Wagner her constitutional right to make full answer and defence.
  • He denied Wagner her right to rely on Section 37 of the Criminal Code, which permits “everyone” to come to the third-party defence and rescue of any human being (in this case, the preborn) facing imminent assault.
  • He decided the factual basis of Wagner’s constitutional arguments was a waste of the court’s time and that no purpose would have been served by having an evidentiary hearing on her Charter application because, in the current state of Canadian law, it had no possibility of success.
  • He misapplied case law and prejudged the case, “giving rise to a reasonable apprehension of bias and impeding the legal evolution of the law to adapt to new circumstances, knowledge and changed societal values and morals.”
  • He accepted the Crown’s submission that it is beyond the jurisdiction of the courts to question the jurisdiction of Parliament legally to define “human being” in any manner Parliament sees fit.
  • He ruled Section 223 of the Criminal Code is not beyond the powers of Section 52 of the Constitution Act, 1982.
  • He ruled Section 223 of the Criminal Code does not violate the Preamble to, as well as Sections 7, 11(d), 15 and 26, of the Charter of Rights and Freedoms.
  • He denied Wagner standing to raise a constitutional challenge to the validity of Section 223 of the Criminal Code.
  • He ruled that Section 223 of the Criminal Code applied generally throughout the entire Criminal Code and used it to deny unborn human beings the benefit of equal protection as born human beings under Section 37 of the Criminal Code.
  • He denied the production and disclosure of third-party records in the possession of the “Women’s Care Clinic” abortion site, although the records were required to prove Wagner was justified in using reasonable force in the form of oral and written words to try to persuade pregnant mothers from killing their unborn children by abortion.
  • He denied Wagner the defence of Section 37 of the Criminal Code by ruling unborn children did not come within the scope of human beings eligible to be protected by a third party.
  • He ruled Wagner did not come within the scope of Section 37 because she was found to be non-violent (in that she did not use physical force).
  • He ruled the unborn children Wagner was trying to rescue were not under her protection.
  • He denied Wagner the common-law defences of necessity and the rescue of third parties in need of protection.
  • He denied Wagner public funding to make full answer and defence for a constitutional test case of great public importance and national significance.
  • He imposed an unconstitutional sentence upon Wagner by, in effect, imposing an injunction as a condition of probation, contrary to her constitutional rights of free speech, freedom of expression, freedom of conscience and freedom of religion.

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Among the orders Lugosi is seeking are:

  • That an appeal be allowed against conviction on all counts and that a verdict of acquittal be entered on all counts,
  • That Section 223 of the Criminal Code be found unconstitutional  and contrary to Section 52 of the Constitution Act, 1982, as well as the unwritten constitution of Canada,
  • That the sentence be declared unconstitutional and contrary to Section 52 of the Constitution Act, 1982, and the unwritten constitution of Canada or that a new trial be conducted, with Wagner permitted to make full answer and defence, be given standing to make a constitutional attack on Section 223 of the Criminal Code, with the admission of expert witnesses,
  • That the Women’s Care Clinic abortion site be made to produce third-party records pertaining to patients seen on August 15, 2012 (when Wagner entered the site),
  • And that there be public funding for two defence counsels at any retrial and for any appeal related to the case.

No date has yet been established for a decision on the appeal or hearings.

A defence fund for Wagner’s case is still raising money. Details on how to contribute to it can be found here.


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