"A Bill
That Will Profoundly Divide Canada"
Brief by Cardinal Ouellet to Senate Committee
OTTAWA, JULY 13, 2005 (Zenit.org).- Here is the text of a brief by Cardinal
Marc Ouellet on Bill C-38, the bill redefining marriage, to the members of the
Senate Standing Committee on Legal and Constitutional Affairs.
The cardinal, who is archbishop of
* * *
Saving Marriage as a Fundamental Institution Recognized by the State
On behalf of the Canadian Conference of Catholic Bishops (CCCB), I would first
like to thank the Honorable Members of the Senate for this opportunity to
present our vision of marriage and the family as part of the debates on Bill
C-38. Inspired by human and spiritual convictions common to the Canadian
people, this vision is defensible without recourse to religion.
Since November 2002, we have intervened time and time again to convince Members
of Parliament not to redefine the institution of marriage for the benefit of
persons of homosexual orientation who, nonetheless, as human beings deserve the
respect of all their fellow citizens.
Contrary to those who would seek to relegate us to the religious sphere each
time we speak, we are convinced that the current debate is predominantly social
on the nature and value of marriage. For this reason we have set forth
arguments based on natural law and common sense. We will provide a short
overview of these arguments in this brief.
As we reach the end of a political process that carries a grave risk of
changing the nature of marriage and involving largely unforeseeable but
assuredly negative consequences for Canadian society, we are turning to you in
the hope that you will prevent the adoption of this unjust law.
A Bill That Will Profoundly Divide the Country
Throughout the country, numerous voices have been
raised to denounce this government proposal that does not respond to the
legitimate needs or expectations of Canadians. Many consider it to be based on
a false understanding of the fundamental equality between persons, on an
erroneous understanding of human dignity, on a spurious understanding of
minority rights, on a faulty interpretation of the Canadian Charter of Rights
and Freedoms, and on a truncated understanding of freedom of religion. We are
among these voices.
This colossal misunderstanding risks leading
Neither the State nor religions invented marriage nor determined its natural
components. They merely institutionalized a reality that existed well before
them, thereby recognizing that the inherent characteristics of this reality --
the stability of the couple, as well as the procreation and education of
children -- would assure the common good of society.
Today, the issues of Bill C-38 concern not only the definition and foundations
of marriage as celebrated since time immemorial and recognized by all cultures.
The future of marriage as a fundamental social institution is also being
challenged, as well as the importance for society of the irreplaceable role of
a husband and wife in conceiving and raising children. Their union guarantees a
stable environment for family life, continuity between generations and parental
models involving a father and a mother.
A Truncated Definition That Denatures Marriage
Logically, all definitions are made up of a type and a specific difference.
Aristotle defines man as a reasonable (specific difference) animal (genus).
Therefore, the definition of marriage as a "union between two persons to
the exclusion of all others" excludes the specific difference of marriage
which is its essential component, namely sexual difference, the union of a man
and a woman. This is a truncated definition, applicable perhaps to angels of
pure hearts, but not very adequate in defining human beings who are by nature
sexual and complementary.
The redefinition proposed in Bill C-38 does not promote the evolution of
marriage, but instead breaks irrevocably both with human history as well as
with the meaning and very nature of marriage. We have no illusions: it implies
a distortion of the natural institution of marriage. If this bill is adopted,
we will ascribe the term "marriage" to something that is merely
pseudo-marriage, a fiction, a derivative and, in the
words of the Honorable Senator Hervieux-Payette, an imposture.
Despite efforts to sow confusion by changing the definition of words, it will
not change the objective reality of marriage -- a heterosexual institution in
its essence.
For us, and for a majority of Canadians, marriage will remain the exclusive
lifelong covenant of the love of a man and a woman to the exclusion of all
others. A union possessing the natural capacity to generate
new lives, which has as its purposes the couple's well-being as well as the
procreation and education of children. A relationship
that satisfies individual needs, but is also for the common good, and
consequently deserving the preference and protection of the State. The
government has a responsibility to favor and encourage this type of union,
since marriage between a man and a woman ensures the future of society and
constitutes the ideal environment for the development of children.
A False Interpretation of the Canadian Charter of Rights and Freedoms
Relying on the Canadian Charter of Rights and Freedoms and decisions by the
Supreme Court and lower courts, promoters of Bill C-38 maintain that the
universal definition of marriage violates the equality rights of a Canadian
minority composed of same-sex partners, flouts their dignity and generates
discrimination based on sexual orientation. But does it really?
To answer this question, we refer to a reflection by Gérard Lévesque, a Quebec
philosopher and independent researcher in ethics and jurisprudence: "The
courts' false notion of equality leads to a false notion of discrimination: by
identifying equality as being a perfection results in perceiving any difference
as abnormal and discriminatory. This false perception of discrimination
prevents an appropriate reading of the Charter.
"It should not be regarded as discriminatory or unjust to treat someone
according to his or her true situation, or to accord special status or the
granting of different treatment to people because of genuine differences. On
the contrary, to act in this way is to be just and equitable. A sensible
application of the Canadian Charter of Rights and Freedoms allows legislation
that conforms to these principles. For example, Section 15 of the Charter
forbids … discrimination based on race, religion, sex, age or mental
disability. And the same Charter stipulates that every Canadian citizen has the
right to vote. Nevertheless, Section 3 of the Canada Elections Act does not
grant this right to those who are not considered as having reached the age for
making important political choices. … It follows that if the interpretation of the
Charter were to ignore obvious differences, it would be applied without
discernment and, what is more, in a way that is contrary to the common
good" (manuscript, February 2005; CCCB translation from the French).
Heterosexual and homosexual unions must therefore be compared to determine
whether they are perfectly identical or whether they present characteristics
which justify different treatment and different names. No one disputes that
same-sex partners can truly love each other and wish to share their life
together. If marriage is reduced to a relationship of intimacy between
consenting adults, then there is no reason to refuse it. And it is not enough
that one group sees marriage in this way in order that it receive
legal, therefore public recognition.
As we have seen, however, marriage is a great deal more than a relationship of
interdependence between consenting adults. It aims at much more than the
well-being and fulfillment of the partners. It possesses another constituent
element, namely, the procreative potential of the man and woman who are making
the commitment. The sexual relationship between two men or two women is not
equivalent to the sexual relationship between a man and a woman because they do
not have the biological capacity to generate new lives. It must also be added
that with regard to education of children, the same values cannot reasonably be
attributed to both types of union. The principal right of children is to be
born of an act of love and to live in complete communion with a father and
mother.
Therefore, it is neither unjust nor discriminatory to name and treat
differently two realities that are so intrinsically different both anatomical
and psychoaffective perspective. On the contrary, it would be unjust and
discriminatory toward married heterosexual couples to treat them this way. The
State must accord special treatment to a man and woman who marry, not because
of the exclusivity, dependence, duration or sexual nature of their union, but
because of its vital function of procreation and its function of socialization
that encourages complementarity between man and woman for the greater good of
their children.
"When the State uniquely privileges marriage it takes the position that it
is in the best interest of society for children to be born and raised in a
community where they experience the cause of their biological and historical
identity as a loving union preserved by each parent placing the needs of others
over their own. By promoting marriage to be the exclusive union between one man
and one woman, the State not only protects the rights of children but
encourages the values of commitment, restraint and diversity that are needed to
preserve community at large" (R.M.T. Schmid, Oxford University, in Zenit,
12 July 2004).
If same-sex partners are excluded from marriage, it is not because of their
sexual orientation, but because of the absence between them of a sexual
complementarity that defines the specific difference of marriage. Thus, they
are naturally incapable of procreation and less capable of educating the next
generation of citizens -- a determining criterion of public interest.
To affirm that there is a difference between heterosexual and homosexual unions
is not unjust discrimination against same-sex partners. This was recognized by
the U.N. Commission on Human Rights in 2002 when refusing to hear a complaint
against the New Zealand Court of Appeal which had just refuted the idea
(Quilter vs. New Zealand [A.G., 1997] ICHRL 129) that banning discrimination on
the basis of sexual orientation implied a right to marriage between same-sex
partners. The Court of Appeal had determined that "not all differences in
treatment are discriminatory."
Furthermore, the argument of those promoting homosexual "marriage" in
favor of equal rights is also based on a false notion of respect for human
dignity. The equality and dignity of persons do not depend on race, religion,
sex, sexual orientation or marital status. Their dignity and equality are based
on the simple fact that they are members of the human race. To respect their
dignity, neither the State nor society is obliged to legally accept their
"lifestyle" that has no reason to be publicly recognized as a social
value.
Pierre Manent, a foremost authority in the field of political philosophy and
director of studies at the École des hautes études en sciences sociales,
With regard to the protection of minority rights, it should be remembered that
a minority does not have rights solely because it is a minority. It is the
members of this minority who have rights, and these rights are either absolute
or conditional. An example of an absolute right is the right to life; an
example of a conditional right is the right to practice medicine, which is
conditional to having a medical diploma. The right to marriage, which is
recognized by the Universal Declaration of Human Rights, is also a conditional
right. It is reserved for persons who meet the conditions naturally required
and associated with this right, including sexual complementarity.
As the government prepares to redefine marriage by invoking the evolutionary
nature of the Canadian Constitution, we must also recall a fundamental
principle that is to govern the development of laws to ensure that they will be
just and thus deserve the support and respect of citizens.
Laws are established to ensure respect for the social order. But a social order
is valid only if it respects the order inscribed in human nature itself. When
laws contradict this natural order, they become unjust and are liable to
provoke division and dissension. The result is social disorder.
The Canadian Charter of Rights and Freedoms aptly refers to the "supremacy
of God and the rule of law". This reference is in no way denominational.
It is written within the framework of the conventional tradition of a right
that establishes what is due to each human person because he or she is human.
It finds its roots in human nature and does not originate from the will of
judges and governments. It is natural law — and its components are more
universal and unchanging than the social and cultural realities that change
with time.
The right to marriage as stated in the Universal Declaration of Human Rights
(Article 16) is based on natural law and does not evolve with attitudes. The
evolution of positive law can be considered as progress for civilization only
when it conforms to natural law. A sound interpretation of the Charter demands
this reference to natural law that comes from its prelude.
Harmful Effects on Children
We are also most concerned by the foreseeable impact of a redefinition of
marriage on
Issuing from the union of a man and a woman, children need a father and a
mother; they have the right to know their biological parents and to be educated
by them. We are only too aware of the suffering of those who are deprived of
this possibility. Why then deliberately create other situations that are
contrary to the well-being of children who need the double figure of a man and
a woman, who represent for them the different, complementary roles that are
crucial for their growth process and the structuring of their personalities?
The adoption of Bill C-38 would create two categories of children: those who
would have the right to be educated by their two biological parents and those
who would be voluntarily deprived of this right. Such discrimination is neither
just nor desirable. In a position statement dated 22 January 2004, entitled
"Human Parenting: Is It Time for Change?",
the
Imposing uniformity in the name of equality means pursuing
the erosion of marriage and the family by belittling the importance of the
union of a woman and a man, a wife and a husband, a mother and a father.
Society must do everything in its power to ensure that children have a father
and a mother who live together in a relationship marked by stability and love.
Furthermore, the educational impact of laws on attitudes is undeniable. If
Canadian law must henceforth teach that marriage is the union of two persons, a
majority of Canadians face the risk of a serious threat to their freedom of
conscience, religion and expression through the imposition of an
"orthodoxy" that is contrary to their values.
It is true that the amended version of Bill C-38, Article 3.1, affirms
"For greater certainty, no person or organization shall be deprived of any
benefit, or be subject to any obligation or sanction, under any law of the
Parliament of Canada solely by reason of their exercise, in respect of marriage
between persons of the same sex, of the freedom of conscience and religion
guaranteed under the Canadian Charter of Rights and Freedoms or the expression
of their beliefs in respect of marriage as the union of a man and woman to the
exclusion of all others based on that guaranteed freedom."
This section of Bill C-38 affects only federal legislation. Nothing has been
provided to ensure that this section is applied in all provinces given that
legislation dealing with social issues and education is under provincial
jurisdiction. The Charter currently protects freedom of conscience and
religion; however, in provinces that recognize the validity of same-sex
marriage we are already witnessing lawsuits against persons and groups who do
not share this vision. Must we now resign ourselves to being victims of
discrimination for believing in the historical definition of marriage and
wishing to teach, educate and preach according to our faith and conscience?
Must a majority of parents accept it as inevitable, that schools and the media
will transmit a vision of marriage contrary to their own?
Threat to Freedom of Conscience and Religion
Bill C-38 affirms that freedom of religion is protected and therefore those
licensed to perform marriages would not be obliged to do so if their
convictions are compromised. Not only will it be necessary to count on the
willingness of the provinces to assure this right, but it is clear from the
debates on the redefinition of marriage that the concept of religious freedom
is misunderstood by the majority of interveners.
Religious freedom is not limited to the freedom to perform or not perform
marriages between same-sex partners. Freedom of religion, which is
intrinsically linked to freedom of conscience and expression, not only concerns
religious authorities but all citizens, who must be able to express these
freedoms publicly in their daily lives.
An extremely distressing phenomenon has been noted in recent years. It has been
particularly well described by Professor R.M.T. Schmid that whoever indicates
disagreement with the idea of same-sex marriage is accused of homophobia:
"Is the introduction of homosexual unions ultimately to symbolize that
there is no right to freedom of conscience on the matter of homosexual acts and
that conscientious objectors are to be marginalized in public life?
"Already, the appeal to conscience in any matter pertaining to
homosexuality risks being dismissed as 'homophobia.' Understood as a
pathological fear, this disqualifies the position of opponents as an entirely
irrational stance. Because the condemnation of homosexual behavior objects to
acts, not to persons, the conclusion that any opposition to homosexual unions
indicates lack of respect and care for people is a blatant non sequitur.
"If the line of reasoning is that homosexuality is so central to the human
person that it is impossible to morally disapprove of homosexual acts and not
thereby discriminate against the person, then by the same token conscientious
beliefs central to the human person could not be contradicted without
discriminating against the person.
"The exhortation that 'religious belief must not lead to the
discrimination of homosexual persons by refusing them the right to marry' sets
up a false problem. Not all arguments made by religious believers can be
reduced to their religious beliefs. The contribution of religious believers to
the public debate on homosexual unions cannot be dismissed as inherently
irrational and biased without denying them equality as citizens.
"It cannot be allowed that in political discussion pathological
irrationality, bad motives or even hatred are freely
ascribed to opponents of homosexual unions. If in the name of truth, rational
arguments can be rejected because they accord with conscientious beliefs, and
in the name of justice, conscientious belief can be silenced, then freedom is
not for all" (Ibid.).
These attempts to intimidate persons who do not share the State's vision of
marriage may well multiply after the adoption of Bill C-38. Once the State
imposes a new standard affirming that homosexual sexual behavior is a social
good, those who oppose it for religious motives or motives of conscience will
be considered as bigots, anti-gay and homophobes, and then risk prosecution.
Again, to quote Pierre Manent: "Precisely because our system is a system
of freedom, and in order for it to remain so, we have no right to demand that
our citizens approve our 'styles' or 'contents of life': it would be
tyranny" (Ibid. 326).
By claiming marriage, persons of the same sex are seeking social recognition.
But, we repeat, in this case social recognition depends on the service a
citizen renders to the State. Unlike same-sex couples, heterosexual couples
naturally and most often transmit life. In giving new citizens to society, they
render an essential social service to the State, which justifies a special
status to their union.
By obtaining the right to marriage, same-sex partners would be asked to present
themselves socially in a way that is different from what they really are. This
would also affirm that they need this status to be deemed worthy of
consideration, which would run entirely counter to the objective of Bill C-38.
The State is not interested in recognizing or institutionalizing consensual
adult relationships founded on sexual orientation, sexual preferences, cultural
practices, religious convictions or personal preferences of its citizens. In
public interest, it must protect the institution of marriage and the family
that are the cornerstone of society and the best guarantee for its future.
Conclusion
In conclusion, we maintain that it would be unjust and contrary to the common
good to redefine marriage as dictated in Bill C-38. Such a law would change the
essential nature of marriage and destroy the public recognition that the State
must grant, in the spirit of the Charter and in respecting natural law, to the
union of a man and a woman to the exclusion of all others.
In claiming marriage, persons of the same sex are seeking a social recognition
that if granted to them in this way, would be unjust since their union does not
fulfill the essential condition of sexual complementarity and openness to
natural procreation which is characteristic of the institution of marriage.
To find legal and social recognition above all else and to the detriment of the
common values of marriage and family in Canadian society, has already had
disastrous consequences and has endangered not only freedom of conscience and
religion, but also the quality of public and private education in the future.
The State must protect the primary right to freedom of religion not only for
members of the clergy but also for the population as a whole. It must ensure
that the rights and justice toward homosexuals and same-sex unions be
respected, but without relinquishing to cultural movements that threaten the
fundamental values of marriage and the family.
We are counting on you, Honorable Senators, who may vote in complete freedom of
conscience, and we appeal to you on behalf of the majority of Canadians: Save
the fundamental institution of marriage! Your parliamentary institution will
emerge more credible and faithful to the Canadian Charter of Rights of
Freedoms, which will provide a more accurate interpretation than the one
presented by this bill.
Cardinal Marc Ouellet
Archbishop of
On behalf of the Canadian Conference of Catholic Bishops