Bradley Miller

Same-sex ‘marriage’ ten years on: lessons from Canada

Bradley Miller
By Bradley Miller

November 14, 2012 (thePublicDiscourse) - Would recognizing same-sex relationships as marriages be much of a game-changer? What impact, if any, would it have on the public conception of marriage or the state of a nation’s marriage culture?

There has been no shortage of speculation on these questions. But the limited American experience with same-sex marriage to date gives us few concrete answers. So it makes sense to consider the Canadian experience since the first Canadian court established same-sex marriage a decade ago. There are, of course, important cultural and institutional differences between the US and Canada and, as is the case in any polity, much depends upon the actions of local political and cultural actors. That is to say, it is not necessarily safe to assume that Canadian experiences will be replicated here. But they should be considered; the Canadian experience is the best available evidence of the short-term impact of same-sex marriage in a democratic society very much like America.

Anyone interested in assessing the impact of same-sex marriage on public life should investigate the outcomes in three spheres: first, human rights (including impacts on freedom of speech, parental rights in public education, and the autonomy of religious institutions); second, further developments in what sorts of relationships political society will be willing to recognize as a marriage (e.g., polygamy); and third, the social practice of marriage.

The Impact on Human Rights

The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages. But the legal and cultural effect was much broader. What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.

A corollary is that anyone who rejects the new orthodoxy must be acting on the basis of bigotry and animus toward gays and lesbians. Any statement of disagreement with same-sex civil marriage is thus considered a straightforward manifestation of hatred toward a minority sexual group. Any reasoned explanation (for example, those that were offered in legal arguments that same-sex marriage is incompatible with a conception of marriage that responds to the needs of the children of the marriage for stability, fidelity, and permanence—what is sometimes called the conjugal conception of marriage), is dismissed right away as mere pretext.

When one understands opposition to same-sex marriage as a manifestation of sheer bigotry and hatred, it becomes very hard to tolerate continued dissent. Thus it was in Canada that the terms of participation in public life changed very quickly. Civil marriage commissioners were the first to feel the hard edge of the new orthodoxy; several provinces refused to allow commissioners a right of conscience to refuse to preside over same-sex weddings, and demanded their resignations. At the same time, religious organizations, such as the Knights of Columbus, were fined for refusing to rent their facilities for post-wedding celebrations.

The Right to Freedom of Expression

The new orthodoxy’s impact has not been limited to the relatively small number of persons at risk of being coerced into supporting or celebrating a same-sex marriage. The change has widely affected persons—including clergy—who wish to make public arguments about human sexuality.

Much speech that was permitted before same-sex marriage now carries risks. Many of those who have persisted in voicing their dissent have been subjected to investigations by human rights commissions and (in some cases) proceedings before human rights tribunals. Those who are poor, poorly educated, and without institutional affiliation have been particularly easy targets—anti-discrimination laws are not always applied evenly.  Some have been ordered to pay fines, make apologies, and undertake never to speak publicly on such matters again. Targets have included individuals writing letters to the editors of local newspapers, and ministers of small congregations of Christians. A Catholic bishop faced two complaints—both eventually withdrawn—prompted by comments he made in a pastoral letter about marriage.

Reviewing courts have begun to rein in the commissions and tribunals (particularly since some ill-advised proceedings against Mark Steyn and Maclean’s magazine in 2009), and restore a more capacious view of freedom of speech. And in response to the public outcry following the Steyn/Maclean’s affair, the Parliament of Canada recently revoked the Canadian Human Rights Commission’s statutory jurisdiction to pursue “hate speech.”

But the financial cost of fighting the human rights machine remains enormous—Maclean’s spent hundreds of thousands of dollars in legal fees, none of which is recoverable from the commissions, tribunals, or complainants. And these cases can take up to a decade to resolve. An ordinary person with few resources who has drawn the attention of a human rights commission has no hope of appealing to the courts for relief; such a person can only accept the admonition of the commission, pay a (comparatively) small fine, and then observe the directive to remain forever silent. As long as these tools remain at the disposal of the commissions—for whom the new orthodoxy gives no theoretical basis to tolerate dissent—to engage in public discussion about same-sex marriage is to court ruin.

Similar pressure can be—and is—brought to bear on dissenters by professional governing bodies (such as bar associations, teachers’ colleges, and the like) that have statutory power to discipline members for conduct unbecoming of the profession. Expressions of disagreement with the reasonableness of institutionalizing same-sex marriage are understood by these bodies to be acts of illegal discrimination, which are matters for professional censure.

Teachers are particularly at risk for disciplinary action, for even if they only make public statements criticizing same-sex marriage outside the classroom, they are still deemed to create a hostile environment for gay and lesbian students. Other workplaces and voluntary associations have adopted similar policies as a result of their having internalized this new orthodoxy that disagreement with same-sex marriage is illegal discrimination that must not be tolerated.

Parental Rights in Public Education

Institutionalizing same-sex marriage has subtly but pervasively changed parental rights in public education. The debate over how to cast same-sex marriage in the classroom is much like the debate over the place of sex education in schools, and of governmental pretensions to exercise primary authority over children. But sex education has always been a discrete matter, in the sense that by its nature it cannot permeate the entirety of the curriculum. Same-sex marriage is on a different footing.

Since one of the tenets of the new orthodoxy is that same-sex relationships deserve the same respect that we give marriage, its proponents have been remarkably successful in demanding that same-sex marriage be depicted positively in the classroom. Curriculum reforms in jurisdictions such as British Columbia now prevent parents from exercising their long-held veto power over contentious educational practices.

The new curricula are permeated by positive references to same-sex marriage, not just in one discipline but in all. Faced with this strategy of diffusion, the only parental defense is to remove one’s children from the public school system entirely. Courts have been unsympathetic to parental objections: if parents are clinging to outdated bigotries, then children must bear the burden of “cognitive dissonance”—they must absorb conflicting things from home and school while school tries to win out.

The reforms, of course, were not sold to the public as a matter of enforcing the new orthodoxy. Instead, the stated rationale was to prevent bullying; that is, to promote the acceptance of gay and lesbian youth and the children of same-sex households.

It is a laudable goal to encourage acceptance of persons. But whatever can be said for the objective, the means chosen to achieve it is a gross violation of the family. It is nothing less than the deliberate indoctrination of children (over the objections of their parents) into a conception of marriage that is fundamentally hostile to what the parents understand to be in their children’s best interests. It frustrates the ability of parents to lead their children to an understanding of marriage that will be conducive to their flourishing as adults. At a very early age, it teaches children that the underlying rationale of marriage is nothing other than the satisfaction of changeable adult desires for companionship.

Religious Institutions’ Right to Autonomy

At first glance, clergy and houses of worship appeared largely immune from coercion to condone or perform same-sex marriages. Indeed, this was the grand bargain of the same-sex marriage legislation—clergy would retain the right not to perform marriages that would violate their religious beliefs. Houses of worship could not be conscripted against the wishes of religious bodies.

It should have been clear from the outset just how narrow this protection is. It only prevents clergy from being coerced into performing marriage ceremonies. It does not, as we have seen, shield sermons or pastoral letters from the scrutiny of human rights commissions. It leaves congregations vulnerable to legal challenges if they refuse to rent their auxiliary facilities to same-sex couples for their ceremony receptions, or to any other organization that will use the facility to promote a view of sexuality wholly at odds with their own.

Neither does it prevent provincial and municipal governments from withholding benefits to religious congregations because of their marriage doctrine. For example, Bill 13, the same Ontario statute that compels Catholic schools to host “Gay-Straight Alliance” clubs (and to use that particular name), also prohibits public schools from renting their facilities to organizations that will not agree to a code of conduct premised on the new orthodoxy. Given that many small Christian congregations rent school auditoriums to conduct their worship services, it is easy to appreciate their vulnerability.

Changes to the Public Conception of Marriage

It has been argued that if same-sex marriage is institutionalized, new marital categories may be accepted, like polygamy. Once one abandons a conjugal conception of marriage, and replaces it with a conception of marriage that has adult companionship as its focus, there is no principled basis for resisting the extension of marriage licenses to polygamist and polyamorist unions.

In other words, if marriage is about satisfying adult desires for companionship, and if the desires of some adults extend to more novel arrangements, how can we deny them? I will not here evaluate this claim, but simply report how this scenario has played out in Canada.

One prominent polygamist community in British Columbia was greatly emboldened by the creation of same-sex marriage, and publicly proclaimed that there was now no principled basis for the state’s continued criminalization of polygamy. Of all the Canadian courts, only a trial court in British Columbia has addressed whether prohibiting polygamy is constitutional, and provided an advisory opinion to the province’s government. The criminal prohibition of polygamy was upheld, but on a narrow basis that defined polygamy as multiple, concurrent civil marriages. The court did not address the phenomenon of multiple common-law marriages. So, thus far, the dominant forms of polygamy and polyamory practiced in Canada have not gained legal status, but neither have they faced practical impediments.

The lesson is this: a society that institutionalizes same-sex marriage needn’t necessarily institutionalize polygamy. But the example from British Columbia suggests that the only way to do so is to ignore principle. The polygamy case’s reasoning gave no convincing explanation why it would be discriminatory not to extend the marriage franchise to gays and lesbians, but not discriminatory to draw the line at polygamists and polyamorists. In fact, the judgment looks like it rests on animus toward polygamists and polyamorists, which is not a stable juridical foundation.

The Impact on the Practice of Marriage

As for the practice of marriage, it is too soon to say much. The 2011 census data establish that, first, marriage is in decline in Canada, as it is in much of the West; second, same-sex marriage is a statistically minor phenomenon; and third, there are very few same-sex couples (married or not) with children in the home.

There are approximately 21,000 married same-sex couples in Canada, out of 6.29 million married couples. Same-sex couples (married and unmarried) constitute 0.8% of all couples in Canada; 9.4% of the 64,575 same-sex couples (including common-law and married) have children in the home, and 80% of these are lesbian couples. By contrast, 47.2% of heterosexual couples have children in the home. Canada stopped tracking divorce after 2008, and has never provided data on same-sex divorce.

What we can gather from these data is that same-sex marriage has not, contrary to arguments that it would, powered a resurgent marriage culture in Canada. Nor are there any census data (one way or the other) for empirical arguments tying the institutionalization of same-sex marriage to marriage stability.

Without empirical data on divorce rates (which are not forthcoming in Canada), we are left with conceptual arguments that must be evaluated on their merits. Here, the Canadian experience cannot provide much information. We are left with the question, does the institutionalization of same-sex marriage rest on a conception of marriage that places a premium on stability, as does the conjugal conception? If it does not, then we can reasonably believe same-sex marriage will speed up cultural acceptance of a conception of marriage—the adult companionate model—that has done much social damage over the past fifty years.

Bradley W. Miller is an associate professor of law at the University of Western Ontario and a Visiting Fellow in the James Madison Program in American Ideals and Institutions at Princeton University. This article reprinted with permission from thePublicDiscourse.com.

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Opposing gay ‘marriage’ may demand civil disobedience: Louisiana bishop

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By Lisa Bourne

LAFAYETTE, LA, June 29, 2015 (LifeSiteNews) – The bishop of the Catholic diocese of Lafayette, Louisiana, is one of the nation’s Church leaders to come out strongly against the Supreme Court decision forcing all 50 states to recognize homosexual “marriage.”

Bishop Michael Jarrell reminded Catholics in a statement that the judiciary does not have the power to redefine marriage, and he opened the door to civil disobedience as a possible response to the June 26 Supreme Court ruling.

“Let me state very plainly that no human court has the authority to change what God has written into the law of creation,” Bishop Jarrell wrote in his statement. “This ruling is irreconcilable with the nature and definition of marriage as established by Divine Law.”

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“The marital covenant was established by God with its own proper nature and laws,” he continued.

Recognizing the tide of religious persecution across the country against those who hold the Biblical view of marriage, Bishop Jarrell addressed the issue of living one’s Catholic faith in light of the Supreme Court decision, and gave the green light to refuse to comply, even if it means breaking the law.

“I realize that this ruling will create conscience problems for many Catholics, especially those in public office,” Bishop Jarrell said. “In some cases civil disobedience may be a proper response.”

In an exercise of episcopal authority, the Lafayette prelate also issued a mandate that no representative of the diocese would enable homosexual “marriage” in the wake of the Supreme Court decision.

“No priest or deacon of this Diocese may participate in the civil solemnization or celebration of same-sex marriage,” he declared. “No Catholic facility or property, including but not limited to parishes, missions, chapels, meeting halls, Catholic educational, health or charitable institutions, or facilities belonging to benevolent orders may be used for the solemnization of same-sex marriage.”

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The bishop also cautioned against Catholics showing support for homosexual “marriage” by their presence at same-sex “wedding.”

“All Catholics are urged not to attend same-sex ceremonies,” he said.

The bishop said he hoped this October’s Ordinary Synod on the Family at the Vatican would address issues brought about by “the alteration of the traditional law about marriage.”

Bishop Jarrell also expressed deep sadness at the Supreme Court ruling, and said while Catholics have great respect for everyone as children of God, the justices’ decision had no legal or moral foundation.

“As Catholics we have a profound respect for the dignity of all God’s children,” he stated. “Nevertheless there is no basis in law or in nature for altering the traditional definition of marriage, established by God from the beginning.”

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Catholic News Service gives platform to head of union that gave hundreds of millions to pro-abort politicians

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By Lisa Bourne

June 29, 2015 (LifeSiteNews) – The news service of the U.S. Conference of Catholic Bishops has published an article by the head of an organization that has given hundreds of millions of dollars to elect pro-abortion politicians.

Americans should listen to Pope Francis, at least when it comes to his message on poverty and economics, according to Richard Trumka, president of the AFL-CIO, an organization that has done arguably more to elect pro-abortion politicians than any other group in the last 50 years.

The union chief made his case in a June 22 guest column for Catholic News Service (CNS).

The AFL-CIO donated $200 million to Democratic politicians in 2008 alone.

LifeSiteNews contacted Catholic News Service about Trumka’s column in light of the AFL-CIO’s support for abortion, contraception, and homosexual “marriage," but CNS declined to comment.

On his way in the piece to pronouncing unity between the Church and big labor, Trumka touts Pope Francis’s recently reported high approval rating and the “newfound vigor” the Roman Catholic Church has added to its “traditional social doctrine” since his election.

“For much of the last century and more, the labor movement and the Catholic Church have stood together in solidarity for people who labor for a living,” he wrote in the CNS column. “Pope Francis lives and breathes this tradition.”

“Together, the Catholic Church and the labor movement stand for a new moral and political order,” he said.

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In his June 22 piece for Catholic News Service he wrote about helping to ease the pain and suffering for others as his reasons for praising Pope Francis.

“We believe in the duty to ease pain and to offer comfort to those who are suffering -- and not just with kind words, but with action,” Trumka opined. “That is why I am so heartened by our Holy Father Pope Francis.

Trumka, raised Catholic, writes his column for CNS with a Catholic voice, but the union he heads up supports contraception and homosexual “marriage,” along with abortion.
 

While the Church today holds The Dignity of Work and the Rights of Workers among its themes of Catholic Social Teaching, giving voice in the Bishops’ own news agency to the representative of an organization which has given hundreds of millions of dollars to pro-abortion politicians contradicts the USCCB’s very own document teaching on the need for Catholics to act in support of Catholic principles and policies in public life.

 

“The Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles,” the USCCB’s Catholics in Political Life states. “They should not be given awards, honors or platforms which would suggest support for their actions.”

 

The nation’s top union also supports the so-called “free” birth control imposed as part of the HHS mandate, something many groups – including the USCCB itself – resisted being forced to provide.

“Women have fought hard for the right to safe, legal reproductive health services and the freedom to exercise that right,” the AFL-CIO Statement on Women's Access to Quality and Affordable Reproductive Health Care says. “The Affordable Care Act provides that women will receive preventative health care benefits, including FDA-approved methods of birth control, without co-pays or deductibles.”

Many of those forms of “birth control” may act as abortifacients.

The AFL-CIO’s support for abortion and birth control isn’t where the union’s advocacy for anti-Catholic initiatives stops. It encompasses homosexual activism as well.

Pride At Work is a nonprofit organization that represents LGBT union members and their “allies,” that “organizes mutual support between the organized Labor Movement and the LGBT Community to further social and economic justice.”

Pride at Work is an officially recognized constituency group of the AFL-CIO

The deeds of the AFL-CIO as an organization are not the sole illustration of how Trumka’s CNS appearance sends a conflicting message with regard to Church principles, but also statements embracing and advocating principles in direct contrast to the faith by the man himself.

“Working people believe in equality and fairness and that’s why we are happy to stand with millions of Americans and with President Obama in supporting marriage equality,” Trumka said in a statement supporting homosexual “marriage.”

When the federal Defense of Marriage Act and California’s Proposition 8 defending marriage were overturned, he said they never should have been adopted in the first place.

“The Defense of Marriage Act and California’s Proposition 8 were radical and divisive laws that never should have been,” Trumka said. “Now, we can begin to fully clear the dark legal cloud that has hung over our nation.”

Trumka employs a childhood anecdote to frame his article complete with violence against his grandfather on the part of the profit-focused mining company that “owned everything,” in his Pennsylvania hometown.

“Pope Francis speaks for the church I grew up in when he calls for an organized moral response to the injustices of modern capitalism,” stated Trumka, whose salary level is around $300,000 per year according to unionfacts.com.

Trumka has been implicated in encouraging intimidation and deception to advance union goals, according to a report from the National Legal and Policy Center.

Trumka has also been accused of legitimizing violence. During a multi-state coal miners’ strike organized by the United Mine Workers in 1993, Trumka, as union president, ordered more than 17,000 miners to walk off the job, and explicitly told strikers to "kick the s--- out of" employees and mine operators defying union demands.

Homes were vandalized, shots were fired at a mine office, and power was cut to one mine, temporarily trapping 93 miners underground.

A non-union contractor, Eddie York, was murdered by a union member, shot in the back of the head as he drove past strikers at a West Virginia work site. Those trying to rescue the victim were attacked by a group of union members. The union member who shot the contractor went to jail, but no one else was disciplined for what took place.

Trumka told Virginian-Pilot in September 1993 regarding the incident, “I’m saying if you strike a match and you put your finger in it, you’re likely to get burned.”

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Supreme Court suspends Texas law that would have closed half of its abortion facilities

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By Ben Johnson

WASHINGTON, D.C., June 29, 2015 (LifeSiteNews) – About half of the abortion facilities in Texas got a reprieve from the Supreme Court on its last day in session.

Justices ruled 5-4 that, right now, the state of Texas may not enforce health protection laws that would have put all but nine of the state's abortion offices out of business. The court's conservative bloc – Chief Justice John Roberts, joined by Justices Scalia, Thomas, and Alito – objected, but Anthony Kennedy cast the decisive vote with the court's liberals.

At issue is whether the state may require abortionists to have admitting privileges at nearby hospitals and require abortion facilities to meet the same health and safety codes as other ambulatory surgical centers.

The temporary stay of Senate Bill 5 lasts until the justices decide whether they will hear an appeal from the abortion industry, which argues the law's provisions would unduly restrict a woman's access to abortion-on-demand.

“The U.S. Supreme Court was swayed, not for the first time in a week, by illogical arguments,” said Kristan Hawkins, president of Students for Life of America. “By actively lobbying against common sense regulations that would make sure women have access to ‘safe, legal and rare’ abortions, Planned Parenthood and their allies are making a mockery of women’s health care.”

“The abortion industry cares only for their bottom line, and women and their prenatal children are merely dollar signs in their business cycle,” Hawkins said.

"Women and babies are being denied protections with the Supreme Court blocking pro-life legislation,” said Lila Rose of Live Action. “Contrary to what big abortion organizations would have us believe, the possible closure of abortion facilities is due to the refusal of these corporations to adhere to sensible and ordinary medical precautions. We look forward to the day that both the legislature and the Courts use their power to protect the most vulnerable among us."

State pro-life leaders regret the loopholes that they say put women's health at risk.

“Unfortunately, women who do not have abortions at any of the nine operating ambulatory surgical centers that perform abortions will continue to be subjected to substandard medical care,” said Joe Pojman, Ph.D., executive director of Texas Alliance for Life.

The ruling does not permanently enjoin the state. It does not even guarantee justices will hear the case.

Should they decline, the law will go into effect in its entirety.

Last October, the Supreme Court allowed Texas to implement these measures while the Fifth Circuit Court of Appeals considered its decision in a 6-3 verdict. However, it added that the state must allow abortion facilities in El Paso and McAllen to operate subpar operations, defying greater protections for women, because closing those facilities would require women to drive a great distance to the next nearest abortion facility.

Earlier this month, a three-panel judge of the appeals court, based in New Orleans, upheld the health regulations. All three judges had been appointed by President George W. Bush.

Had the full requirements gone into effect, half of all the remaining abortion facilities in Texas would have closed.

The left-wing website ThinkProgress worried, if the High Court upheld the decision, it would mean that “Roe v. Wade is almost entirely dead.”

Today, representatives of the abortion lobby felt relief. "Our Constitution rightly protects women from laws that would create barriers to safe and legal abortion care, but Texas politicians have tried to sneak around the Constitution with sham regulations designed to close clinics’ doors," said Nancy Northup, president of the Center for Reproductive Rights.

Texas Gov. Greg Abbott, a pro-life Republican, vowed to “continue to fight for higher-quality health care standards for women while protecting our most vulnerable – the unborn.”

“I’m confident the Supreme Court will ultimately uphold this law,” he added.

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