Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.): Madam Speaker, I rise today to speak in support of Bill C-38, the civil marriage act, introduced by the government.
Before addressing the subject, I just want to say that much has been made of the fact that the government is not allowing a free vote on this and that if the vote were free, the bill would not pass. This is pure nonsense. The vote will be free on this side of the House. The hon. members can vote as they see fit.
However, the government has an opinion and this is a government bill. Accordingly, cabinet will vote in favour of the bill, as will the parliamentary secretary to the Minister of Justice, since the bill was introduced by the Minister of Justice.
There is nothing magical or coercive in this. The government will urge all hon. members to consider the merits of a vote confirming what, in the opinion of the Supreme Court of Canada, is a fundamental right vested in the charter.
For my part, as a mere parliamentary secretary required to vote in favour of the bill—although I know I am not the only parliamentary secretary to do so—I would have voted in favour of it regardless. Let me explain why.
We certainly cannot deny that for many this is a difficult decision for religious or personal reasons. We are talking about one of the oldest and most central institutions in our society. The topic is highly charged emotionally.
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I would join my colleagues, however, in encouraging members of Parliament and indeed all Canadians to conduct the debate as it has been to date, in a calm and respectful way. The views of all members must be heard. The test of our values and our respect for tolerance and diversity will be to continue to listen with an open mind to the comments and concerns not only of those we agree with, but even more importantly, of those we do not agree with.
What strikes me as I have listened to the comments from colleagues and other members of the House, constituents, religious groups, family and friends is that the arguments being made in the House today are not unique. Let me take a brief moment to read a representative comment, “Assuming that there must be some restrictions as to marriage, we may assume also that the laws imposing such restrictions ought not to be changed without some good and clearly ascertained case”.
The speaker then went on to say that there is “no sufficient cause for the change now proposed” and that it is not unreasonable to alter the traditional law on marriage as “it is contrary to sound principles to legislate for the very few when such legislation must injuriously affect the welfare and happiness of a much larger number”. He expressed concern that the changes in legislation would result in changes to religious practices and concluded that the legislation was too important to be passed quickly without “due time for ascertaining the sentiments of the people generally”.
Debate in the House of Commons would be insufficient as his parishioners in Nova Scotia had difficulty following the goings on of the Parliament in distant Ottawa. The time was needed for the populous to get used to the idea. Parliament was rushing the issue.
Many of the arguments made today against extending civil marriage to same sex couples are eerily similar to those arguments. Those comments were drawn from well over 100 years ago, in 1890 when Canada’s marriage laws were being amended to allow a widow or widower to marry the sibling of their deceased spouse. Those comments were made by the Anglican Bishop of Nova Scotia because of course this marriage was then prohibited by the church.
As would be expected, the bishop expressed concern that this extension of marriage was contrary to the Christian concept of marriage and cited numerous quotations from the Bible. He even raised the spectre of polygamy. A man who was prepared to marry his deceased wife’s sister, he said, might next want to marry all of her sisters at the same time, and what would be left to stop this if we allowed him to marry more than one sibling one after the other?
In the year 2005, well over 100 years later, it is striking to me that this House has also heard every one of these arguments anew. I am fascinated by how easy it is to lose perspective as we sometimes lose history.
I hope we come to view these arguments with the same perspective now as the House finally did in 1890 when these changes to Canada’s marriage laws were passed.
Nor was 1890 the last and only time that our marriage laws were amended, or these arguments were raised. As recently as 1990 the federal Marriage (Prohibited Degrees) Act was amended to extend access to civil marriage to those who were related by blood in second degree relationships, that is, cousins, and uncles or aunts and their nieces and nephews.
In 1990 many experts in genetics were called before a Senate committee to explain that there was no scientific basis for the perception that these relationships resulted in an increased probability of physical or mental impairment. So consistent was the evidence that the amendment passed with very little controversy.
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I suspect that many of my fellow members of Parliament did not even know that the law had been changed in this regard. It is another example of the fact that civil marriage is not immutable and has been extended over time to groups previously excluded.
Indeed, Upper Canada passed its first marriage act as early as 1793. The legislation was based on the British Lord Hardwicke’s Act and restricted the ability to perform marriages to the Church of England or Anglican ministers. In 1798 after considerable pressure, the ability to perform marriages was extended to ordained Presbyterian, Lutheran and Calvinist ministers, but only where they were certified, which was an extra procedure that was not necessary for the Church of England ministers.
Methodists were specifically left out until 1829 when the legislation was extended to Congregationalist, Baptist, Independent, Mennonite, Tunker, Moravian and Methodist ministers. It was not until 1857 that ministers of every religious denomination, including Jewish rabbis, were authorized to perform marriages. Other provinces and territories followed similar paths.
Civil marriage in Canada was created by legislation fairly early in Canada’s west, in British Columbia in 1888, in the Northwest Territories in 1898, in Manitoba in 1932, perhaps more because of the unavailability of religious ministers. Ontario waited until 1950 to introduce civil marriage. Quebec, Nova Scotia, New Brunswick, P.E.I. and Newfoundland and Labrador introduced it only in the 1960s. In each case there was controversy and concern.
Although Canada never had any laws preventing interracial marriage as there were in the United States, Canadian authors cite instances where authorities resorted to deportation and charges of seduction, as well as instances where community members resorted to torture and even murder to prevent such unnatural unions. Happily, this aspect of marriage has changed.
Similar arguments were put forward with regard to divorce laws. One member of Parliament in 1894 said:
Every Catholic is opposed... and yet the Protestant majority of this House want to impose the law upon us in this matter.... Who may tell what the future keeps in store for us?
Those words are from a distinguished member of the House, the hon. Hormidas Jeannotte, uttered in 1894 in the context of a debate on the bill of divorce for one James St.-George Dillon.
Prior to the passage of Canada’s first Divorce Act in 1968, individual bills were needed to grant divorces. Certainly the concerns uttered then are again similar to those that we have heard more recently.
Senator Bellerose said in a debate in the Senate on the same bill that if divorce were granted it would “encourage the whole population of Montreal and of the province of Quebec...to separate from their wives in order to achieve the same end”. He insisted that it would be a travesty if Parliament passed the bill because “it was understood at the time of Confederation that divorce would not be granted to Catholics”.
Indeed these arguments were raised in almost every recorded debate on any change to Canadian laws on marriage or divorce and yet, as we can all plainly see, religious practices have changed very little. Some religious groups still do not recognize divorce, and the change in the civil law does not force them to do so.
Some religious groups still do not allow marriage between first cousins, and the change in the civil law does not force them to do so. In the same way, the passage of Bill C-38 would not force religious groups who do not recognize marriage between same sex partners to do so.
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I fully understand that those opposed to this bill are not radicals. They are not bigots. They are not homophobic. This is a big change for our society within one lifespan. For me, and as others have said before in the House, when I grew up and first learned the law, homosexual behaviour was still prohibited by the criminal law. It is not long ago in our lifetimes, as the Prime Minister mentioned in his speech, that gay and lesbian Canadians were not welcome in the Canadian Forces, were not protected by the law from being dismissed from a job or refused service in a restaurant simply because they were gay. It is difficult for some in our society to accept that what was very recently hidden and invisible is now being accepted as a minority group deserving of protection and respect.
Let me just probe that a little. Why would this not be a group of people deserving of protection from discrimination? As the Minister of Justice has said, it is easy to believe in equality when we agree with a particular minority, but history is full of instances that demonstrate just how much a test of our beliefs and our values it is when we are talking about a minority that we do not agree with.
Let us remember that gay and lesbian individuals have been subjected to a lengthy history of discrimination and indeed persecution in many societies. It is all too recent that they were targets of Nazi Germany, where they were forced to wear pink triangles and many were housed in concentration camps. It is all too recent that the fear of outing or coming out meant the end of a career and even family life for many who were forced to live invisibly in our own Canada.
I was concerned to hear the opposition make reference to the fact that this is not about human rights, that there are no instances of real discrimination here with regard to this group. With respect, that is a denial of history and a denial of fact. I have heard from parents, as I am sure have a number of members, sad and terrible stories about children who have committed suicide because they were afraid of telling their parents about their sexual orientation, of young people cast off by their families, of schoolyard taunting and harassment, of violence directed against people only because they were suspected of being gay.
No purpose is served by comparing the history of disadvantage, of discrimination and of exclusion of different minority groups. I will be supporting this bill because I believe in the eradication of discrimination for all minority groups, and in the equal importance of the protection of the freedom of religion. The government bill acts responsibly and carefully to balance full respect for equality and the freedom of religion, basic Canadian values of such importance that they are entrenched as part of our Constitution, forever limiting the power of this House.
The opposition says that this bill should not pass because half of Canadians are not in support. I realize that Canadians are evenly divided on this issue, but what about those who are in favour? Should those opposed ask the House to turn back the hands of time, to ignore the fact that the law has already changed in eight provinces and territories because the courts have made binding decisions that limiting civil marriage to opposite sex couples is a violation of our Constitution?
Our own history shows us that those opposed will be fully protected from these changes. They will not touch their lives unless they choose to have it happen. Religious groups will retain the full ability to make their own decisions about whether to recognize these legal changes in the same way they already have with earlier changes to the civil law on marriage and divorce.
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However the House has a duty, not only to those opposed but to those in favour, not only to those religious groups who do not wish to perform same sex marriages but also to those who do.
In the discussions surrounding the 1968 Divorce Act, religious groups took sides. Some urged the government not to pass the civil divorce law for Canada fearing the impact on religious practice and others who urged the government to go further and include a ground for divorce based solely on marital breakdown.
Now as then, it falls to the civil authority to legislate in a way that allows all religious groups to continue with their beliefs. The way to do that here is to pass this law, allowing religions to decide this issue for themselves and for their communities.
I respectfully submit that the bill represents the great Canadian compromise and I would urge all members to support the bill.
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Mr. Rick Casson (Lethbridge, CPC): Madam Speaker, I have a point of clarification for the member opposite on some of his comments and on some of the things that will transpire from this point.
We understand that after the bill leaves the House of Commons it will not go to the regular justice and human rights committee, that a special committee will be struck to deal with the bill. Some of the concerns with that will be the structure and the membership of that committee. Will members on the government side who are opposed to this legislation be allowed to sit on it? Is this just an issue of fast-tracking this to stifle debate further in the country? I would like him to comment on those two issues.
In 1999 a motion was brought before the House to reaffirm the definition of marriage as being the union of a man and a woman and the motion passed. I have not looked at the record to see how the member voted, but perhaps he could explain just exactly what has happened since 1999 until now to change the government’s position so drastically.
Hon. Paul Harold Macklin: Madam Speaker, the hon. member’s question is important for the many people who observe our process to understand what is about to transpire.
Once the debate concludes, a vote takes place and, if the bill passes, it goes to a legislative committee. A legislative committee is a committee of the rules of this place where whips from all parties have an opportunity to select their own members and to bring forward the members they would like to present.
One of the realities also in the House, as we have learned, is that this is a minority Parliament and the way in which the committees are set up the government will not be able to maintain a majority vote on these committees. The public needs to know that the committee will be representative of the way in which the House is constituted and, in fairness, will deal with it as best it can, again representing all of the parties in the House and dealing with it in a full and democratic way.
The second point the hon. member raised goes back to the vote in 1999. As the hon. member may know, I was not a member of Parliament at that time, but as an observer it was a situation where one was able to sit back and look at the changes that have occurred in the House over time. I recited a number of changes to the marriage law that have occurred over the years and also to the divorce law. As time passes, the way in which we look at issues changes as well.
In particular, what we have to look at in our case is the evolution from a parliamentary democracy to a constitutional democracy. When in 1982 we entrenched in our Constitution a Charter of Rights and Freedoms, that was the Charter of Rights and Freedoms that was chosen by the House. In so doing, we set a standard. We established a set of rules to be applied against all of our laws in this country. That is very important. Many people do not realize that we put that in place as a guide, a sense of direction and a sense of our values being presented in a meaningful way so that it could be judged against all of our laws that come before the courts.
What is the position of our courts? The courts then become the guarantors for each and every one of us. As a law is brought forward and challenged based on the charter, the courts have to look at that law and see if it measures up to the values that we entrenched in 1982. If it does, then they leave it alone. If it does not, then they are our guarantors and have every right to strike down a law of that nature.
I suggest that there is a significant change that has occurred over the last 20-plus years.
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Mr. Charles Hubbard (Miramichi, Lib.): Madam Speaker, the parliamentary secretary certainly has brought forth a very convincing argument from his point of view in terms of what changes should be brought about regarding marital relationships.
One of the major issues in this country is the fact that for probably 2,000 years, in our minds, in terms of being followers of the common law, marriage has certain connotations. In most people’s thinking over past generations, marriage has been a relationship between a man and a woman. He brings to the House today a changed perception of what marriage is about and he could probably speak further on that.
I have a second point to make. In his discourse he indicated that even after this bill is passed, certain groups will be discriminated against because of their genetic relationships with one another. Is it his intent as parliamentary secretary to do away with relationships that previously prevented marriages of a man and a woman? Would those also be wiped clean? He indicated in his speech that geneticists have indicated this was not a problem with marriages of cousins and other relationships. If he could further expound on this for people in the House, we would certainly appreciate it.
Hon. Paul Harold Macklin: Madam Speaker, marriage has had a specific connotation. However some of my constituents do not realize that two ceremonies actually take place within our marriage ceremony. One is a religious ceremony, assuming one is having a religious marriage, and the other is a civil ceremony. When papers are signed in the church those papers usually are with respect to the civil side of the ceremony. Most of us have the mental approach to marriage as being simply one ceremony when in fact there are two.
The Constitution gave us the ability to deal with the definition of marriage but it was not a religious definition. It was a civil definition. Therefore we are restricted, short of a constitutional amendment, to deal with marriage as it is set out in our Constitution. We cannot broaden it without going through a constitutional amendment.
I respectfully suggest to the member that we are proceeding to deal with only the civil side of marriage. Although I know the connotation in many minds is that there is one process, there are in fact two separate processes going on at the same time.
With respect to his second question about discrimination, I am not referring to some form of genetic discrimination. Section 1 of the Constitution clearly states that rights can be limited where it is demonstrably justifiable in a free and democratic society. I submit that the reason the geneticist was brought in when we were making changes to the table of consanguinity and who could marry whom, was the health reasons. Looking back at some of the history involving royalty, it was demonstrated that when they intermarried it was unhealthy to have that inbred nature thrust upon society.
It is clear that there are solid scientific and genetic reasons why one would not simply disregard the relationships of one to another, why we have done investigations in the past, and why we have a table of consanguinity relating to who can marry whom.
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