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PHILIP S. LOTT (5750) STANFORD E. PURSER (13440) Assistant Utah Attorneys General JOHN E. SWALLOW (5802) Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101 Email: phillott@utah.gov Email: spurser@utah.gov Attorneys for Defendants Gary R. Herbert and John E. Swallow IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, vs.

APPENDIX IN SUPPORT OF STATE DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Civil Case No. 2:13-cv-00217-RJS GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. Judge Robert J. Shelby

TABS 71b TO 72 (1337 - 1376)

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APPENDIX TABLE OF CONTENTS


Tab # Description Page

PART ONE LEGAL MATERIALS


1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Utah Code 30-1-2 Utah Code 30-1-4.1 Utah Constitution Art. 1, 29 (Amendment 3) H.J.R. 25, Joint Resolution on Marriage (as originally filed) H.J.R. 25, Joint Resolution on Marriage (Senate Floor Amendments) H.J.R. 25, Joint Resolution on Marriage (final, reflecting Senate amendments) Chart: The definition of marriage: State statutory and constitutional provisions Chart: The definition of marriage: State ballot measures Chart: The language of State constitutional bans on domestic partnership and other non-marital unions Chart: Court decisions on the marriage issue Chart: Pending cases on the marriage issue Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (U.S. Supreme Court Feb. 11, 1971) Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No. 12-144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. January 2013) Amicus curiae brief of Scholars of History and Related Disciplines, Hollingsworth v. Perry, No. 12-144 (U.S. Sup. Ct. January 2013) [Reserved] [Reserved] 1 2 3 4 6 7 9 13 18 23 25 27 40

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PART TWO MATERIALS ON ADJUDICATIVE FACTS


17. 18. 19. 20. 21. 22. 23. 24. 25. 26. Affidavit of William C. Duncan and Exhibit 1 (curriculum vitae) Excerpts from Utah Voter Information Pamphlet, General Election, November 2, 2004 Vote count on Amendment 3, by county, with totals, and with percentages Campaign materials for Amendment 3 Campaign materials against Amendment 3 New accounts, press releases, and editorials regarding Amendment 3 Fund-raising and expenditures in the Amendment 3 campaign Affidavit of Dr. Joseph P. Price and Exhibit 1 (curriculum vitae) [Reserved] [Reserved] 127 150 155 156 171 183 222 223

PART THREE MATERIALS ON LEGISLATIVE FACTS


27. 28. 29. 30. INSTITUTE FOR AMERICAN VALUES, WHY MARRIAGE MATTERS: THIRTY CONCLUSIONS FROM THE SOCIAL SCIENCES (3d ed. 2011). THE WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2008). INSTITUTE FOR AMERICAN VALUES, MARRIAGE AND THE LAW: A STATEMENT OF PRINCIPLES (2006). INSTITUTE FOR AMERICAN VALUES (DAN CERE, PRINCIPAL INVESTIGATOR), THE FUTURE OF FAMILY LAW: LAW AND THE MARRIAGE CRISIS IN NORTH AMERICA (2005). INSTITUTE FOR AMERICAN VALUES ET AL. (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), THE REVOLUTION IN PARENTHOOD: THE EMERGING GLOBAL CLASH BETWEEN ADULT RIGHTS AND CHILDRENS NEEDS (2006). COMMISSION ON PARENTHOODS FUTURE & INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, PRINCIPAL INVESTIGATOR), ONE PARENT OR FIVE: A GLOBAL LOOK AT TODAYS NEW INTENTIONAL FAMILIES (2011). INSTITUTE FOR AMERICAN VALUES (ELIZABETH MARQUARDT, NOVAL D. GLENN, & KAREN CLARK, CO-INVESTIGATORS), MY DADDYS NAME IS DONOR: A NEW STUDY OF YOUNG ADULTS CONCEIVED THROUGH SPERM DONATION (2010). iii 232 280 318 362

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34.

35.

36. 37.

38.

39.

40. 41. 42. 43. 44. 45. 46. 47. 48.

Margaret Somerville, What About the Children, in DIVORCING MARRIAGE: UNVEILING THE DANGERS OF CANADAS NEW SOCIAL EXPERIMENT 63-78 (Daniel Cere & Douglas Farrows eds., 2004). Margaret Somerville, Childrens human rights and unlinking child-parent biological bonds with adoption, same-sex marriage and new reproductive technologies, 13 J. FAM. STUD. 179-201 (2007). Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure, 1 INTL J. JURISPRUDENCE FAM. 35 (2010). Don Browning & Elizabeth Marquardt, What About the Children? Liberal Cautions on Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 173-192 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Maggie Gallagher, (How) Does Marriage Protect Child Well-Being?, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 197-212 (Robert P. George & Jean Bethke Elshtain, eds., 2006). Seana Sugrue, Soft Despotism and Same-Sex Marriage, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, AND MORALS 172-96 (Robert P. George & Jean Bethke Elshtain, eds., 2006). THE SOCIOLOGY OF GEORGE SIMMEL 128-32 (Kurt H. Wolff, trans. & ed., 1950). CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 39-42 (Joachim Neugroschel & Phoebe Hoss trans. 1985) G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 1-3 (1988). EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 310-13 (1994). CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 7-8 (Kingsley Davis, ed., 1985). JAMES Q. WILSON, THE MARRIAGE PROBLEM 40-41, 168-170 (2002). BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 10-11 (1962). DADDY DEAREST? ACTIVE FATHERHOOD AND PUBLIC POLICY 57 (Kate Stanley ed., 2005). DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF CHILDREN AND SOCIETY 139-63 (1996). William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM. 277-292 (1998). KRISTIN ANDERSON MOORE ET AL., MARRIAGE FROM A CHILDS PERSPECIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN, AND WHAT CAN WE DO ABOUT IT?, a Child Trends Research Brief (2002). Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: incidence and disparities, 2006, 84 CONTRACEPTION 478-85 (2011). iv

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710 732

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797 804 810 815 819 823 831 834 837

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61. 62. 63. 64. 65.

66. 67.

ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE: ESTIMATES AND TRENDS IN THE UNITED STATES, a Child Trends Research Brief (2011). SAMUEL W. STURGEON, THE RELATIONSHIP BETWEEN FAMILY STRUCTURE AND ADOLESCENT SEXUAL ACTIVITY, a familyfacts.org Special Report (November 2008). U.S. Dept. of Health and Human Servs., Administration for Children & Families, Office of Planning, Research & Evaluation, Distribution of Abuse and Neglect by Family Characteristics, in FOURTH NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (NIS-4) Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 THE FUTURE OF CHILDREN 75-96 (2005). Douglas W. Allen, High school graduation rates among children of same-sex households, 11 Rev. of Econ. Of the Household (published on-line September 26, 2013). Mark Regnerus, How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study, 41 SOCIAL SCIENCE RESEARCH 752-70 (2012). Mark Regnerus, Parental same-sex relationships, family instability, and subsequent life outcomes for adult children: Answering critics of the new family structures study with additional analyses, 41 SOCIAL SCIENCE RESEARCH 1367-77 (2012). Loren Marks, Same-sex parenting and childrens outcomes: A closer examination of the American psychological associations brief on lesbian and gay parenting, 41 SOCIAL SCIENCE RESEARCH 735-51 (2012). WILLIAM C. DUNCAN, MISPLACED RELIANCE ON SOCIAL SCIENCE EVIDENCE IN THE PROPOSITION 8 CASE, Vol. 5, No. 6, an Institute for Marriage and Public Policy Research Brief (2012). JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 4-5, 27-29, 31-37, 55-57, 59-60, 76-104, 117-120, 227-28 (1995). JOHN R. SEARLE, MAKING THE SOCIAL WORLD: THE STRUCTURE OF HUMAN CIVILIZATION 6-16, 84-93, 102-08, 143-44 (2010). Douglas Farrow, Why Fight Same-Sex Marriage?, TOUCHSTONE, Jan.Feb. 2012 Ross Douthat, Gay Parents and the Marriage Debate, THE NEW YORK TIMES, June 11, 2002. INSTITUTE FOR AMERICAN VALUES (BENJAMIN SCAFIDI, PRINCIPAL INVESTIGATOR), THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY STATES (2008). BEYOND SAME-SEX MARRIAGE: A NEW STRATEGIC VISION FOR ALL OUR FAMILIES & RELATIONSHIPS (July 26, 2006). SHERIF GIRGIS, RYAN T. ANDERSON, AND ROBERT P. GEORGE, WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 1-2, 6-12, 23-36 (2012). v

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1035 1089 1121 1128 1131

1175 1202

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68. 69. 70.

DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 3-4, 11-21, 55, 91-106, 120-25, 171-75, 179-201 (2007). [Reserved] [Reserved]

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PART FOUR CANADIAN AND BRITISH LAW JOURNAL ARTICLES


71. Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, 1 BRIT. J. AM. L. STUDIES (Issue 2, Summer/Fall 2012, May 1, 2012). F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference Re Same-Sex Marriage, 42 ALTA. L. REV. 1099 (2005). F.C. Decoste, The Halpern Transformation: Same-Sex Marriage, Civil Society, and the Limits of Liberal Law, 41 ALTA. L. REV. 619 (2003). Monte Neil Stewart, Judicial Redefinition of Marriage, 21 CAN. J. FAM. L. 11 (2004). Dated this 11th day of October, 2013. JOHN E. SWALLOW Utah Attorney General /s/ Philip S. Lott Philip S. Lott Stanford E. Purser Assistant Utah Attorneys General Attorneys for Defendants Gary R. Herbert and John Swallow CERTIFICATE OF SERVICE I hereby certify that on the 11th day of October, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which sent notification of such filing to the following: Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101-3605 vi tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com 1291

72. 73. 74.

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Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3500 Salt Lake City, Utah 84190-1210

rchamness@slco.org dgoddard@slco.org

/s/ Philip S. Lott

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to orderly social reproduction is no different from the contribution of other, non-sexual affective unions, such as the ones mentioned in the previous paragraph. This is why a legal category for domestic dependency partnerships that is sex-neutral and orientation-neutral would meet all the publicly reasonable needs of non-standard families and real caring relationships. For example, there is at present no reason to think that a gay couple raising adopted children meets the need for orderly social reproduction any better or worse than, say, a widower and his bachelor brother who partner to raise the widower's children. The law would unreasonably privilege the gay couple and implicitly denigrate the widower and his brother if, on account of the former couple's sexual orientation alone, its relationship was distinguished by making it eligible for civil marriage. This is why public reason still excludes homosexual unions from civil marriage, even granting that there is no general imperative for the law to promote the ideal. Even with a further legal category of domestic dependency relationships whose entry criteria are blind to controversial ideals about the worth of kinds of sexual intimacy, enshrining traditional marriage in the law may still have the consequence of reinforcing traditional sexual mores and perhaps even of discouraging the social acceptance of homosexuality and other nontraditional forms of sexual expression as normal. It would be foolish to deny this real possibility. These possible consequences do not undermine the publicly reasonable case for traditional marriage, however, because political liberalism only involves a neutrality ofjustification and aim for political conceptions of justice and not a neutrality of effect.
It is surely impossible for the basic structure of a just constitutional regime not to have important effects and influences as to which comprehensive doctrines endure and gain adherents over time; and it is futile to try to counteract these effects and influences, or even to ascertain for political purposes how deep or pervasive they are.I6S
It is impossible for every theory or application of justice to be neutral in its effects on the holders of different reasonable comprehensive doctrines. Even if this means that a politically liberal society will effectively suppress radical programs "to make every effort to disrupt the hegemony of the [nuclear family] schema" 166 and this schema's "heteronormative models of the family," 167 this suppression is so much the worse for such programs, which anyway sit uneasily in a pluralistic democracy. Although the argument I make here is novel because it is presented systematically in Rawlsian terms, its substance is not entirely unfamiliar. I have already shown how, according to Liu and Macedo's unintentionally

165 RAWLS, supra note 14, at 193. 166 Has1anger, supra note 149, at 115. 167 Id at 114.

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revealing account, the 2004 Republican effort to pass the FMA in the US Senate was roughly in accord with public reason. Now I wish to highlight how the state's legitimate interest in ensuring orderly social reproduction appears to be an emerging theme of American jurisprudence, as reflected in the decisions of U.S. state and federal courts from 2000 to 2012 that deal with same-sex unions. During this period, eight decisions upheld the traditional definition of civil marriage. 168 One state court decision mandated "civil unions" that are equivalent in all but name to traditional civil marriage. 169 Four decisions overturned traditional civil marriage and mandated same-sex marriage. 170 All eight decisions upholding traditional marriage accepted the defendants' appeal to the legitimate state interest in procreation and childrearing. Indeed, even in the New Jersey Supreme Court case that ordered civil unions, the majority notes: The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need [for attaching specific benefits and burdens to married heterosexual couples]. Thus, the Court implies that the State could have justifiably argued against homosexual civil unions if it had appealed to encouraging procreation or childrearing. The Connecticut Supreme Court mandated same-sex marriages in Kerrigan v. Dept. ofPublic Health (2008), but here too, the majority decision emphasizes: we note that the defendants expressly have disavowed any .. . belief that the preservation of marriage as a heterosexual institution is in the best interest of children, or that prohibiting same-sex couples from marrying promotes responsible heterosexual procreation ....
168 See Conaway v. Deane, 932 A.2d 571 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 ~Wash. 2006) (en banc);Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8 1 Cir. 2006); Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D . Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004); Standhardt v. Superior Court ex rei. Cnty. of Maricopa, 77 P.3d 451 (Ariz. Ct. 2003), reh 'g denied, 2004 Ariz. LEXIS 62, May 25, 2004. 169 Lewis v. Harris, 908 A.2d 196 (N.J. 2006). 170 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Dep't of Pub. Health, 957 A.2d 407 (Conn. 2008); In reMarriage Cases, 183 P.3d 384 (Cal. 2008); Goodrich v. Dep't ofPub. Health, 798 N.E.2d 941 (Mass. 2003). A fifth case was the 91h Circuit's February 2012 decision in Perry v. Brown reaffirming the district court's overturning of California's Proposition 8, which I discussed at the outset of this article.( Perry v. Brown, 671 F. 3d 1052, (9 1h Cir. 2012) ).

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Therefore, only three decisions out of thirteen rejected the state defense of traditional marriage when that defense was expressed in terms of promoting procreation and childrearing. Furthermore, the three anomalous cases-Goodridge v. Dept. ofPublic Health (Mass. 2003), In reMarriage Cases (Cal. 2008), and Varnum v. Brien (Iowa 2009)-were decided explicitly on the basis of moral comprehensive doctrines and violated the ideal of public reason.
IV. ARGUMENTS FOR SAME-SEX MARRIAGE ARE PUBLICLY UNREASONABLE

The 2003 Goodridge decision of the Supreme Judicial Court of Massachusetts ignited the present same-sex marriage debate in the United States. "Simply put, the government creates civil marriage," the Court declared, and then inferred that the state-via the mandates of the Courtwas free to refashion the terms of civil marriage according to values stemming from what its judges decided were its comprehensive doctrines. 171 Thus, the Court contradicted Rawls's account of the state's limited and functional state interest in marriage and the family, and usurped for the state a power that is incompatible with a pluralistic democracy guided by public reason. Impetus for Goodridge presumably came from the U.S. Supreme Court's decision Lawrence v. Texas, which was handed down several months before Goodridge. In Lawrence, the Court violated public reason even more egregiously than Goodridge by finding in the U.S. Constitution a highly sectarian conception of liberal autonomy. Justice Anthony Kennedy, writing for the majority in Lawrence, announces: Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. 172 Kennedy proceeds to quote Planned Parenthood v. Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." 173 The remarkable fact about this decision is not the holding in Lawrence, which struck down irregularly enforced and unpopular anti-sodomy laws, but the sectarian principle the Court announced in support of it and injected into Federal case law. 174 One needn't have any sympathy for anti-sodomy laws to see
Goodridge,v. Dep't ofPub. Health, 798 N.E.2d 941,945. Lawrence v. Texas, 539 U.S. 558, 562 (2003). 173 Lawrence, 539 U.S. at 574. 174 The philosopher John Deigh wrote at the time in an editorial for Ethics, the preeminent academic journal for moral philosophy: "What is striking about this remark [i.e. 'Liberty presumes an autonomy of self. ... '] is its language. One would
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that the purported right to define one's own concept of the universe, or of the autonomy of the self generally, are illegitimate grounds for judicial and legislative actions, because they are manifestly sectarian pieces of comprehensive liberal doctrines. 175 The pro-same-sex marriage arguments of philosophers and legal theorists are no better than those of the judges in Goodridge and Lawrence. 116 The non-public, moralistic character of arguments in favor of same-sex marriage is often obscured by a rhetorical maneuver, however, which frames the debate as if it were simply about providing equal and fair access to an agreed-upon, uncontroversial social good. In brief, such rhetorical arguments for same-sex marriage proceed as follows. First, "marriage" gets implicitly defined as any affective sexual relationship between two adults. Second, it is argued that since the state promotes "marriage," it should promote it fairly and with equal respect, not denying access to anyone who is eligible. Third, it is argued that since gays and lesbians can obviously have affective sexual relationships, there is no reason to preclude them from marrying, because to do so would be to discriminate against them as a class. This argument is often quite successful rhetorically, but it relies on a question begging definition of "marriage." Mary Lyndon Shanley, for example, begs the question when she says, "Despite their differences, neither side [in the same-sex marriage debate] questions whether marriage is a good thing and whether it should be recognized by the state; their argument is over who should be able to

look in vain for similar language in the majority opinions of the major cases from the I 960s and I 970s on which this opinion rests. These are the famous cases in which the Court found a fundamental right of privacy in the penumbra and emanations of the rights enumerated in the Bill ofRights. The authors of those opinions, in explaining the value of the liberty this right of privacy guarantees, speak of traditional values going back to a time before the founding of the United States, the sanctity of the home and the privacies of life, the sacredness of marriage, and the security of individuals in their person and possessions from unwarranted governmental intrusions. Nowhere, however, does one find reference to anything like the 'autonomy ofseir to which Justice Kennedy, the author of the majority opinion in the Texas case, appeals." Editorial, I 14 ETHICS (Oct. 2003), available at http://www.jstor.org/stable/I 0. I 086/380 I 03. 175 Presumably the Court could have overturned the anti-sodomy statute on alternative, publicly reasonable grounds, without appealing to the sectarian liberal values proclaimed by Justice Kennedy. There do not appear to be any publicly reasonable arguments for criminalizing private sex acts between consenting adults, so in principle there could have been a more narrowly tailored, liberty-based objection to anti-sodomy laws that avoided relying upon controversial comprehensive doctrines. I owe this clarification to Frank Michelman. 176 See, e.g., Cass Sunstein, The Right to Marry, 26 CARDOZO L. REV. 2081,(2005) ("[M]arriage is a government run licensing system, no more and no less," which happens to come with the conferral of material benefits and expressive legitimacy). 50

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marry." 177 On the contrary, the debate is precisely about whether marriage, according to its historic meaning, is a good thing or not. Gay rights activists think that marriage, historically understood, is a bad thing because it has the effect of establishing heterosexuality as socially normative, and by implication, they argue that it "inflicts profound psychic damage" on people who embrace a homosexual identity as part of their self-image. 178 They propose abolishing marriage and replacing it with a new legal category that solemnizes any affective sexual relationship between any two adults and thus discourages sexual complementarity as a social norm. It is politically useful to call this new category "marriage," too, because it conceals just how expressively significant the change is, and makes it more likely to convince wary voters to accept the change. 179 But to define "marriage" as a relation equally open to heterosexual and homosexual couples, as Shanley does, is first, simply to beg the question against the natural law defenders of traditional marriage, for whom sexual complementarity is marriage's sine qua non, and second, to impose an alternative comprehensive doctrine. In other words, the natural law theorists claim that marriage is essentially heterosexual because they claim that only heterosexual sex is valuable.IIJJ Liberals like Shanley think that any kind of consensual sex is valuable, so they reject the natural law account and want to redefine "marriage." Consider the professedly Rawlsian, constitutional argument put forth by Frank Michelman in favor of same-sex marriage. Michelman states correctly that, within political liberalism, "no political value can inhere in hostility or opposition to same-sex partnerships 'as such,' which can only reflect some religious or otherwise sectarian ethical doctrine." 1o1 From the fact that opposition to same-sex unions as such would be sectarian, he concludes that same-sex unions as such must be legally endorsed. But this inference is fallacious. In order for legal recognition to be justified, there needs to be a positive case made in terms of public reasons for why the state should pick out and enshrine specifically homosexual relationships among all the other affective relationships that there are. Why limit the entry conditions to a parenting partnership to people who happen to be engaged in a romantic sexual relationship? Surely two brothers, an aunt and her grown niece, or a priest and his housekeeper, say, might also wish to enter a legally supported parenting partnership in order to assist them in raising a child who has come under their care. Traditional
MARY LYNDON SHANLEY, Afterword, in JUST MARRIAGE 109, at 110 (Deborah Chasman & Joshua Cohen eds., 2004). 178 MARTHA NUSSBAUM, FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION AND CONSTITUTIONAL LAW {Geoffrey R. Stone eds., 2010). 179 It is noteworthy that although she professes to follow the limits of public reason, Elizabeth Brake argues for retaining the term "marriage," even though she proposes replacing its substance with generic social networks of care, in order to help induce public acceptance of homosexuality and gay sex. 180 See ROBERTP. GEORGE, INDEFENSEOFNATURAL LAW (2001). 181 Michelman, supra note 33, at 413.
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marriage was in the past indeed conceived of as in part a parenting partnership and Michelman thinks that political liberalism requires broadening that partnership just a little bit to include his preferred class, which is the couple who happens to be engaged in a homosexual romance. But this selective extension of marriage to homosexual unions as such, which singles out homosexual relationships as specially significant, discriminates against other intimate relationships (e.g. fraternal, non-sexual ones) which appear to be at least equally good candidates for parenting as homosexual unions. It is true that the recent statutes and decisions imposing gay marriage do not explicitly refer to homosexual orientation as the empowering criterion that makes two men or two women eligible for civil marriage. 182 But they do so implicitly. These laws invariably maintain the traditional prohibitions against consanguinity in marriage, even as they redefine marriage to include couples of the same sex. If these laws really were blind to sexual orientation and erotic intimacy as such-as public reason requires-then they wouldn't maintain consanguinity prohibitions. By maintaining consanguinity prohibitions, however, these laws presume that couples entering marriage are sexually intimate, which is why they wish to prohibit incest, and thus they channel the state's affirmative endorsement of gay sex. 183 The selective extension of legal marriage to homosexual unions in this way illicitly deploys the law's coercive and pedagogical power to promote a controversial piece of sectarian liberal sexual morality. Michelman's argument goes awry because he fails to attend to Rawls's explicitly functional conception of marriage as a procreative and childrearing partnership. Michelman, like others, neglects this question altogether. In a footnote he says: My aim here is strictly limited to confirming the general receptivity ofRawlsian thought to fundamental complaint against a publicly and legally privileged form of domestic association that is closed to same-sex partners. I do not address the intriguing question of what this thought has to say about the justifiability of making marriage a publicly recognized, legally consequential status at all, as opposed to a purely "private" matter. HH

Professor Michelman pointed this out to me in personal correspondence. Elizabeth Brake appreciates this point in effect when she notes that the state's "special priority accorded to marriage and marriage-like relationships marginalizes other forms of caring relationships. To the extent that it sustains 'amatonormativity'-the focus on marital and amorous love relationships as special sites of value-marriage undermines other forms of care." BRAKE, supra note 70, at 5. What Brake fails to see is that the state's prioritizing interest in heterosexual marriage isn't necessarily "amatonormative" because heterosexual marriage, unlike gay marriage, is publicly justifiable in terms of orderly reproduction. 184 /d. at 423, n. 64.
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The "intriguing question" cannot be avoided. First of all, to do so obscures the basic needs of children and the interest that children have in their parents' marriage as a public good which meets those needs. The state interest in marriage is not merely as a benefit for adults; but Michelman is insensitive to this fact by failing to consider what the function of legal marriage is. More generally, it is absurd to attempt to assess whether some individual or group has a claim on a public benefit, or liability to some public burden, without first determining what the state interest is in offering the benefit or imposing the burden. The nature of the state interest in the family will determine whether and what publicly reasonable arguments are available to justify restricting or expanding access to the legal category "marriage." Consider an analogy. Suppose that U.S. Medicaid policy had a health benefit that provided African-Americans with vouchers for a sickle-cell anemia diagnostic test. Caucasian, Latino, and Asian Medicaid recipients would not be eligible for the voucher. People of any ethnicity may suffer from sickle-cell anemia and might benefit from the test, so is there any publicly reasonable argument for restricting access to public benefits by the "suspect classification" ofrace? If we adopted Michelman's approach, we would immediately have to conclude no, thus "confirming the general receptivity ofRawlsian thought to fundamental complaint against a publicly and legally privileged" form of medical benefit that is closed to Caucasians, Latinos, and Asians. But this conclusion is absurd, since there is, in fact, a straightforward public reason for the imagined policy: people descended from sub-Saharan Africans have a genetic predisposition to sickle-cell anemia (since apparently the relevant gene also protects against malaria) and therefore it is reasonable for the state to allocate scarce resources using the otherwise suspect classification of race, since race happens to indicate likely presence of the disease. Michelman is representative among Rawlsians who have failed to grasp the import of political liberalism's functional conception of marriage and the family as ensuring orderly social reproduction over time. Rawlsians tend to be sectarian liberals and they have relied illicitly on their comprehensive religious or secular doctrines about "liberated" sexual morality in order to single out homosexual relationships as such for special promotion, thereby violating the ideal of public reason and the political conception of justice. But homosexual relationships as such lack any claim in justice for state recognition. In this regard, homosexual orientation is on a political par with, say, a traditional order of chivalry or theology of sacramental rites. The Knights of Malta and the Jesuits, for example, may be legally recognized as non-profit charitable associations that indirectly contribute to the political common good, but they cannot, for the politically liberal state, be recognized as a titled nobility or sacramental priesthood, respectively. In the same way, a gay couple may be legally recognized as being party to a generic domestic dependency relationship, but this cannot be endorsed as a "marriage".

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Cass Sunstein has offered an argument for same-sex marriage based on U.S. constitutional law that differs from Michelman's.IBS Sunstein's argument is interesting because he hedges his claims in a way that betrays sensitivity to a counterargument against same-sex marriage in Rawlsian terms along the lines I am arguing here but he fails to address the counterargument nevertheless. Sunstein canvasses and rejects three possible constitutional routes for requiring the legal recognition of samesex unions as marriages: via (a) the right to privacy and "substantive due process," (b) the right to equal legal treatment without irrational animus, and (c) the right against legal treatment according to a "suspect classification." Each of these grounds has its weaknesses, so Sunstein proposes a fourth strategy rooted in the equal protection clause. He claims that it is "artificial and unfortunate" for the law to divide gender into male and female-although noting reassuringly that "[t]here are men and women, to be sure"-because the "diversity of human character" in private life and public life alike cannot be captured by just two complementary categories. Sunstein thinks that the complementary categories of male and female traditional marriage "undergirds the system of caste based on gender" and discriminates against homosexual relations. This discrimination is really a form of prohibition, like old the prohibitions on miscegenation: "But prohibitions are invalid under the equal protection clause."lno Sunstein therefore concludes: In terms of their purposes and effects, bans on same-sex marriage have very much the same connection to gender caste as bans on racial intermarriage have to racial caste. I am speaking here of real-world motivations for these bans, and I am assuming, as does the current law, that impermissible motivations are fatal to legislation. The claim from neutrality is implausible in this context for exactly the same reason that it was implausible in Loving [v. Virginia]. To say this is not to say that the ban on same-sex marriages is necessarily unacceptable in all theoretically possible worlds. In our world, the ban is like a literacy test motivated by a discriminatory purpose, or a veterans' preference law designed to exclude women from employment. 187 From a politically liberal perspective, Sunstein's argument fails. Note that he relies on empirical assumptions about what motivates support for traditional marriage. He assumes that such motivations have a discriminatory purpose because presumably he thinks that they are rooted in animus or controversial religious beliefs. As I noted earlier, however,
But Cass Sunstein does reproduce Michelman's error of failing to examine the public function of civil marriage, which undermines his conclusion in favor of same-sex marriage. See Sunstein, supra note 176, at 2081. 186 Cass R. Sunstein, Homosexuality and the Constitution in SEX, PREFERENCE, AND FAMILY 221 (David Estlund & Martha Nussbaum eds., 1998). 187 /d. at 219.
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Martin Luther King's support of racial equality was, in the actual world, motivated by controversial religious beliefs, and this did not make the cause of racial equality illegitimate in a pluralistic democracy, because King's support could be re-stated in publicly reasonable terms. As with civil rights, so with traditional marriage. In the actual world, it is the case in favor of same-sex marriage that has impermissible motivations that are fatal to legislation, but unlike the civil rights movement, there is not an alternative, publicly reasonable argument available to same-sex marriage proponents. William Eskridge is another prominent proponent of same-sex marriage who, like Michelman, frames the debate as between proponents of uncontroversial equality and neutrality (his own side) and perfectionist moralizers (his opponents). 188 This framing of the debate stacks the deck carefully in order to ensure that only opponents of same-sex marriage appear to be making contentious moral claims, and therefore are vulnerable to being excluded by public reason. 189 But Eskridge's argument is unsuccessful for the same reasons that Michelman's argument fails; his presuppositions are in fact just as controversial and comprehensive as the assumptions of the conservative perfectionists he attacks, and he never bothers to consider the possibility of a non-perfectionist, publicly reasonable defense of conjugal marriage, such as I have proposed here. Carlos A. Ball argues that perfectionist politics is unavoidable, and because there is a widely held egalitarian argument for same-sex marriage, same-sex civil marriage should be recognized in law. Ball argues for legal recognition because, "when the State makes distinctions among intimate relationships in order to recognize and support some (but not all) of them, it must make assessments regarding the value and goodness of those relationships." Ball claims that once the state "is in the business of recognizing and protecting some intimate relationships and not others," then the state inevitably must take sides and legislate from some controversial comprehensive doctrine. Ball concludes from this that the public debate over legally recognizing same-sex unions cannot be about "whether the State should remain morally neutral on the goodness and value of those relationships," but about what sorts of intimate personal relationships are intrinsically valuable, all things considered. 190 Ball's argument falters because he never gives any persuasive reasons for thinking that perfectionism really is unavoidable. Where he does consider Rawls's political liberalism specifically, in fact, his analysis is curiously results-driven and ultimately question-begging.

William N. Eskridge Jr., The Relational Case for Same-Sex Marriage in JUST MARRIAGE 58, at 58-59 (Mary Lyndon Shanley et al. eds., 2004). 189 /d. 19 Carlos A. Ball, Against Neutrality in the Legal Recognition of Intimate Relationships, in MORAL ARGUMENT, RELIGION, AND SAME-SEX MARRIAGE: ADVANCING THE PUBLIC GOOD 75, at 79 {Gordon A. Babst et al. eds., 2009).

188

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It is no longer sufficient to argue that homosexual conduct is morallyneutral behavior deserving only toleration. If our society is going to recognize same-sex marriage, the supporters of such marriages must incorporate perfectionist ideals into their arguments-they must be prepared to speak not only in terms of individual rights but also in terms of collective goods and the moral value of same-sex relationships. 191

Ball does not ask, is political liberalism true? Rather, he asks, will political liberalism get me the results I want? And what he wants is ... to provide the theoretical framework for a gay rights movement that is not only concerned with repealing sodomy statutes and guaranteeing nondiscrimination in employment and housing, but also aims to attain society's acceptance of homosexual relationships. 192 Ball's maneuver is simply beside the point. He is correct that political liberalism is incompatible with his moralistic program-just as it is incompatible with the moralistic program of natural law theory and other comprehensive doctrines-but this fact alone does not bear on the truth or falsehood ofpoliticalliberalism. 193 Ball may be right when he declares, "The struggle for societal acceptance of same-sex relationships entails a frontal attack on the deeply held views of many Americans .... " 194 If so, then this struggle is precluded by political liberalism, which has no room for frontal attacks against fellow citizens' conceptions of the good.

Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism, 85 GEO. L.J. 1871, 1881 {1996-1997). 192 !d. at 1882. 193 Ball's ultimate strategy seems rather cynical, for he recommends endorsing liberal perfectionism or liberal neutrality whenever it makes prudential sense for the sake of promoting gay rights: "The theoretical framework that I propose in this article is not meant to be appropriate in all contexts and circumstances. There may be instances, whether in litigating before a court or in lobbying a legislature on a particular issue, when relying on neutral ideals such as equality, tolerance, and privacy, and eschewing issues of morality and values, may make prudential sense." !d. at 1881. 194 !d. at I 927. Contrast Rawls: The Idea of Public Reason Revisited, 64 CHICAGO L. REV. 765, 776 (I 997): "Central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity." And id. at 782: " ... no one is expected to put his or her religious or nonreligious doctrine in danger, but we must each give up forever the hope of changing the constitution so as to establish our religion's hegemony, or of qualifying our obligations so as to ensure its influence and success. To retain such hopes and aims would be inconsistent with the idea of equal basic liberties for all free and equal citizens." 56

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Unlike Ball, Ralph Wedgwood has offered an argument for same-sex marriage that is meant to be framed in morally neutral terms. 195 W edgwood gives a conceptual analysis of "marriage" using his intuitions about what marriage involves -and extensive assertions about what "we" think-and he concludes that marriage shouldn't "exclude" homosexual couples. This conclusion is unsurprising; Wedgwood titles his article "The Fundamental Argument for Same-Sex Marriage," so presumably it was safe to infer without reading the analysis that he thought same-sex marriage would accord with his intuitions. The three essential features that Wedgwood thinks define "modern Western marriage" are: "(1) sexual intimacy; (2) domestic and economic cooperation; and (3) a voluntary mutual commitment to sustaining this relationship." 196 Homosexual relationships obviously can include these features, so he concludes that civil marriage should be extended to homosexual couples. Although W edgwood does not seem to notice it, his analysis is rather overbroad, because if he is right, many pimps and prostitutes will tum out to be "married" to each other, since surely there are sexually intimate, domestically and economically cooperative pimps and prostitutes who are mutually committed to sustaining their relationship. W edgwood argues that the essential social function of civil marriage is therapeutic affirmation for certain people's intimate relationships: the reason for civil marriage "is simply that many people want to be married, where this desire to marry is typically a serious desire that deserves to be respected." 197 What they want is the common public status conferred by social recognition of their relationship. Thus civil "marriage furthers a fundamental interest in mutual understanding, both between the couple and the rest ofsociety." 198 It is no doubt correct that civil marriage has the effect of reinforcing a married couple's social identity and status, but this cultural effect need not-and in a politically liberal society cannot-be the justificatory grounds for a publicly reasonably marriage policy, unless the particular conception of civil marriage is neutral relative to controversial comprehensive doctrines. By this score, Wedgwood's argument, like the others, fails to justify enshrining same-sex unions in law.
CONCLUSION

I have been arguing for a conception of civil marriage that happens to be the traditional one, but the argument I have given does not depend upon tradition, religion, or most notably, upon controversial philosophical
See Ralph Wedgwood, The Meaning of Same-Sex Marriage in THE NEW YORK May 26,2012. Available at http:/I opinion ator. b Jogs. nytimes .com/20 12/05/24/marriage-meaning-and-equality/ (for a recent restatement of his argument). 196 Ralph Wedgwood, The Fundamental Argument for Same Sex Marriage, 7 J. POL. PHIL. 225, 229 ( 1999). 197 /d. at 235. 198 /d. at 236.
TIMES,
195

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doctrines about the natural law or human flourishing. I have made a publicly reasonable case for defining civil marriage as the union of a man and a woman, and for legally recognizing and promoting families headed by two married parents who are the biological mother and father of their children. The ground for such a policy is, as Rawls argues the ground of any marriage and family policy must be, the permanent and basic social need for orderly reproduction over time. A family headed by two married parents who are the biological mother and father of their children is the optimal arrangement for maintaining a socially stable fertility rate, rearing children, and inculcating in them the two moral powers requisite for politically liberal citizenship. Furthermore, I have canvassed the available arguments in favor of recognizing homosexual relationships (or polyamorous relationships, etc.) as civil marriages, and shown how these arguments depend essentially upon controversial moral doctrines drawn from various comprehensive liberal visions of the good life and fail to link same-sex marriage with the social need for orderly reproduction over time. The nonpublic and sectarian character of the case for same-sex marriage entails that liberals who are sympathetic with the idea of public reasonand this seems to be most liberals-should reject the case for same-sex marriage. The publicly unreasonable nature of the arguments for same-sex marriage should resolve the contentious marriage debate along the lines of a principled, political consensus in favor of conjugal marriage, because the ideal of public reason applies quite broadly across the various partisan, legislative and judicial spheres in which this debate is engaged today. As Rawls argues: [t]he ideal of public reason does hold for citizens when they engage in political advocacy in the public forum, and thus for members of political parties and for candidates in their campaigns and for other groups who support them. It holds equally for how citizens are to vote in elections when constitutional essentials and matters of basic justice are at stake.... It applies in official forums and so to legislators when they speak on the floor of parliament, and to the executive in its public acts and pronouncements. It applies also in a special way to the judiciary and above all to a supreme court in a constitutional democracy with judicial review. 199 If the rational basis standard of constitutional jurisprudence is the standard of public reason, then judges have a positive duty in upholding the Constitution to strike down the sectarian legislation that has established same-sex marriage. Furthermore, the broad scope of public reason requires liberal citizens to abandon their unreasonable advocacy for same-sex marriage that divides and destabilizes the public forum, and fails to treat as equals their fellow citizens who reasonably reject their sectarian arguments.
199

RAWLS, supra note 14, at 215-26.


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Some liberals might prefer to jettison their commitment to the ideal of neutrality if they recognized that neutrality, or public reason, required opposing same-sex marriage and supporting heterosexual marriage. As the gay activist and journalist Andrew Sullivan has cogently argued, however, liberalism has most to lose when it abandons the high ground of liberal neutrality. Perhaps especially in areas where passion and emotion are so deep, such as homosexuality, the liberal should be wary of identifying his or her tradition with a particular way of life, or a particular cause; for in that process, the whole potential for liberalism's appeal is lost. Liberalism works-and is the most resilient modem politics-precisely because it is the only politics that seeks to avoid these irresolvable and contentious conflicts. 200 Of course perfectionist liberals would disagree with Sullivan that neutrality is as central to the broad tradition of liberalism as he suggests. Nevertheless, perfectionist liberals who support same-sex marriage would be mistaken if they assumed that they are immune to the argument I have given here, simply because they reject its key premise, which is the idea of public reason. This would be mistaken because the concerns for orderly social reproduction and the rearing of children who are capable of forming their own conception of the good are concerns that implicate other substantive liberal values, in particular the preeminent value of autonomy. Although the task itself exceeds the scope of this essay, it would be possible craft a parallel, liberal perfectionist version of the publicly reasonable case for heterosexual marriage, because orderly social reproduction promotes autonomy. Even if the absence of same-sex marriage restricts the autonomy of those homosexual couples who might wish to be legally married, this restriction may very well be compatible with holding that a substantive conception of moral autonomy should be the governing value for politics. As Joseph Raz has argued: [a] moral theory which values autonomy highly can justify restricting the autonomy of one person for the sake of the greater autonomy of others or even of that person himself in the future. That is why it can justify coercion to prevent harm, for harm interferes with autonomy. But it will not tolerate coercion for other reasons. 201 As we have seen, children are harmed when they are intentionally conceived and reared in situations that deprive them of the social bases of
ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY at 162-136( 1996). 201 JOSEPH RAz, THE MORALITY OF FREEDOM 419 ( 1986). Raz himself endorses
200

same-sex marriage , but it is not clear that he should, given the considerations about orderly social reproduction, which he does not consider. !d. at 234. 59

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forming an identity and conception of the good. 202 In such situations, their ability to exercise autonomy is diminished, and children are denied what is due to them in justice. One can harm another by denying him what is due to him. This is obscured by the common misconception which confines harming a person to acting in a way the result of which is that that person is worse off after the action than he was before. While such actions do indeed harm, so do acts or omissions the result of which is that a person is worse off after them than he should then be. 203 Thus there are promising grounds for developing a liberal perfectionist argument, which is framed in terms of promoting autonomy, for enshrining heterosexual marriage in the law. However that may be, the politically liberal case for heterosexual marriage as I have presented it is a philosophical argument, framed in terms of public reason, about the importance of family history to the development of one's narrative identity and conception of the good. This argument relies in part upon a number of plausible empirical claims, but like all empirical claims, these are subject to qualification and revision based on better data in the future. At the present moment, nationally representative, longitudinal studies of child rearing by homosexual couples do not exist. Probably the best study to-date is the NFSS and it establishes a significant correlation between parents who have had a same-sex relationship and dysfunctional outcomes for children. The existing studies that purport to show that homosexual parenting is harmless suffer from fatal methodological defects. 204 I have cited some of the many reliable studies that robustly indicate the importance for children of having a married mother and father to whom they are biologically related. 205 Although evidence for this claim, like any actual evidential claim, could be stronger by theoretical criteria, it is extremely strong for practical political purposes, and indeed, it is decisive. This is because, in politics, you can't beat somebody with nobody, and in the debate over marriage there isn't any competitor to the case I have made here, for there is no publicly reasonable argument in view that would support same-sex civil marriage. There may be good public reasons for establishing generic "civil unions" or "domestic dependency partnerships" in the law, as I have shown, but homosexual orientation cannot be a condition for entry into such a legal status.
Recall that such cases do not include conventional adoption, in which the biological parents are for some reason incapable of rearing the children they have already had. 203 RA.z, supra note 201, at 416. 204 See Affidavit of the University of Virginia sociologist, Professor Steven Lowell Nock, in Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct. Justice 2001) (describing serious methodological defects in studies and scholarship about the parenting of children by homosexual couples). 205 See Sections II-III supra. 60
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The only problem that the politically liberal case on behalf of heterosexual marriage faces, it seems, is the extreme self-confidence of the many liberal proponents of legally recognizing homosexual relationships. But self-confidence is no substitute for reasonable argument, and the intrinsic value of any intimate sexual relationship as such is simply not a public matter for political liberalism. In a recent review article of several books arguing for same-sex marriage, Andrew Lister declares, "it is obvious that same-sex marriage is preferable to opposite-sex-only marriage," and he concludes that "[t]he case for same-sex marriage seems so strong to its proponents, that the issue seems to present no interesting normative problems-only the psychological problem of explaining resistance and the strategic problem of overcoming it. " 206 This attitude is no doubt widespread among liberals, but if liberals are going to participate as reasonable citizens in a pluralistic society animated by fairness, they will have to learn what John Rawls has to teach. Rawls's lesson is that reasonableness excludes political fundamentalism and requires recognizing the fallibility of one's beliefs and the duty of civility to moderate one's transcendent claims to having the whole truth. This lesson is especially important for the influential majorities within the academy, judiciary, and news and entertainment media that seem intent on legislating their deeply held convictions about sexuality. As Stephen Macedo aptly notes: The liberal commitment to public reasonableness stands for the view that the mere fact of power-even of overwhelming numerical superiority combined with passionate conviction-is not enough to establish the legitimacy of laws and policies in the face of principled objections. [Because] ... the politically powerful need to provide an adequate public justification: reasons that can be openly presented to others, critically defended, and widely shared by reasonable people?07 Liberals cannot reasonably expect everyone to endorse their personal views about sexual morality and the value of some intimate relationships, even when those views are accompanied by intense feelings of moral certainty. Therefore, liberals must limit their arguments for statutory and constitutional legislation about these matters by the specifically political values that "belong to the most reasonable understanding of the public political conception and its political values of justice and public reason." 208 The reasonable understanding of marriage by this standard is the understanding that happens to be the traditional one: between a man and a woman.

206 207

Andrew Lister, How to Defend (Same-Sex) Marriage, 37 POLITY 409 (2005). Macedo, supra note 28, at 299. 208 RAWLS, supra note 14, at 236.

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Page 1

1 of 1 DOCUMENT Copyright (c) 2005 The Alberta Law Review Alberta Law Review April, 2005
42 Alberta L. Rev. 1099
LENGTH: 14206 words

COMMENT: Courting Leviathan: Limited Government and Social Freedom in Reference Re Same-Sex Marriage
NAME: F.C. DECOSTE* BIO:

* Professor, Faculty of Law, University of Alberta, Edmonton, Alberta.


SUMMARY: ... In the Same-Sex Referencecase, the Supreme Court of Canada had before it the following four questions:

... Those premises are: (a) that there is a distinction that counts, in law and in life as well, between what the Court terms civil marriage and religious marriage; (b) that the authority to defme civil marriage resides exclusively with the state through Parliament; (c) that the state through Parliament may define civil marriage in any fashion it wishes, since marriage of that state sort has no fixed constitutional or legal meaning; and (d) that premises 'b' and 'c' are proper, because each is a requirement of a proper understanding of the place and function of the constitution in the Canadian polity.... In addition to (and even as part of) securing limited government, the constitution of a liberal state may, as does the American Constitution, serve as a myth of origin in the sense that it tells people about where their political arrangements came from and how the situation in which they live came about. .. . That this is at loggerheads with representative government and majoritarian rule appears to be of no moment to this Court or to any of the many other devotees of Canada's recently minted constitutional tradition ....

HIGHLIGHT: We garb Leviathan with legality not only to legitimise his powers, but to restrain them, and to protect each of us at our most vulnerable.

-- J.R. Lucas nl If despotism were lo be established among the democratic nations of our days, ... it would be more extensive and mild; it would degrade men without tormenting them ... In an age of instruction and equality like our own, sovereigns might more easily succeed in collecting all political power into their own hands and might interfere more habitually and decidedly with the circle of private interests than any sovereign of antiquity could ever do ... The supreme power then extends its arm over the whole community... Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd. -- Alexis de Tocqueville n2
TEXT:

[*1099] I. INTRODUCTION In the Same-Sex Reference n3 case, the Supreme Court of Canada had before it the following four questions:

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Page 2 42 Alberta L. Rev. 1099, *

1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil pwposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? 2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter ofRights and Freedoms? n4 If not, in what particular or particulars, and to what extent? 3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter ofRights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? [* 11 00] 4. Is the opposite sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Hmmonization Act, No. 1, consistent with the Canadian Charter ofRights and Freedoms? If not, in what particular or particulars and to what extent? n5

The proposed legislation -- which then Justice Minister Martin Cauchon released on 17 July 2003 -- reads as follows:

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; WHEREAS, in order to reflect the values of tolerance, respect and equality consistent with the Canadian Charter ofRights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex; AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs. n6

This proposal was drafted, the questions framed and the entire bundle forwarded to the Court, as the federal executive's response, in lieu of appeal, to the Ontario Court of Appeal's ukase in Halpern v. Canada (A . G.), n7 which directed that thereafter and immediately n8 marriage at law must be "reformulated ... as 'the voluntary union for life of two persons to the exclusion of all others."' n9 [*1101] The Supreme Court heard arguments n10 on the four reference questions on 6-8 October 2004, and delivered its en bane opinion, n11 which follows, on 9 December 2004:

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Page 3 42 Alberta L. Rev. 1099, *

With respect to Question I, we conclude that s. I of the Proposed Act is within the exclusive jurisdiction legislative competence of Parliament, whiles. 2 is not. With respect to Question 2, we conclude that s. I of the Proposed Act, which defines marriage as the union of two persons, is consistent with the Canadian Charter ofRights and Freedoms. With respect to Question 3, we conclude that the guarantee of freedom of religion in the Charter affords religious officials protection against being compelled by the state to perform marriages between two persons of the same sex contrary to their religious beliefs. For reasons to be explained, the Court declines to answer Question 4. nl2 Though I shall comment briefly on the significance of the latter in the third part of this comment, my primary concern is the first three, excepting only the Court's opinion as regards s. 2 of the proposed legislation, which opinion appears to me to be plainly and completely correct. n13 More specifically, it will be my purpose, first, to construct and, then, to condemn, the reasoning from which arises the Court's disastrous advice on the remainder of the proposed legislation. II. PROPOSAL AND PREMISES The pith and substance of the Same-Sex Reference resides, of course, in the Court's advice on the constitutional propriety-- if not, indeed, the constitutional necessity-- of same-sex marriage (Question 2). That advice it puts in a fashion at once succinct and grand (and, one should note, with a veritable flourish of certainty and conviction): nl4 "the purpose of s. I of the Proposed Act is to extend the right to civil marriage to same-sex couples," and that is "a purpose which, far from violating the Charter, flows from it." nl5 The remainder of the opinion consists of argumentative premises that together, and alone, allow the Court to articulate this [*1102] view of the constitutional status and significance of same-sex marriage. Those premises are: (a) that there is a distinction that counts, in law and in life as well, between what the Court terms civil marriage and religious marriage; (b) that the authority to define civil marriage resides exclusively with the state through Parliament; (c) that the state through Parliament may define civil marriage in any fashion it wishes, since marriage of that state sort has no fixed constitutional or legal meaning; and (d) that premises 'b' and 'c' are proper, because each is a requirement of a proper understanding of the place and function of the constitution in the Canadian polity. I shall dwell at some length on each, before then proceeding, in the third part of this comment, to the difference all of this makes to the delicate matters, faith and family, that are here the stuff of the Court's charge. A. THE DISTINCTION BETWEEN "CIVIL" AND "RELIGIOUS" MARRIAGE Though the Court hinges the whole of its enterprise on the distinction between civil and religious marriage -straightaway we are told to note that "s. I of the Proposed Act deals only with civil marriage, not religious marriage" nl6 --it avoids both definition and defense. nl7 In consequence, neither the sense or senses in which the Court thinks civil and religious marriage different, nor its view of the origins of the difference, is anywhere on display. Indeed, the best that the Court can muster in either regard is armchair sociology and tautology, to wit: that times have changed from those when "marriage and religion were thought to be inseparable"; nl8 that "marriage, from the perspective of the state, nl9 is a civil institution"; n20 and that "civil marriage" is (presumably in consequence) "a legal institution." n21 The distinction, then, must be taken simply as an assertion, a claim, that civil and religious marriage are free-standing institutions, n22 which is to say that they each exist (the former in the political sphere and the latter in social life) and that they are both separate one from the other and unrelated the one to the other. n23 [*1103] This bald assertion is the critical first step towards the Court's constitutional destination. Firstly, so to assert is to establish, by mere fiat, the required state jurisdiction over--indeed, its ownership of-- some form of marriage. Secondly, mere and simple statement of the distinction handily elides matters that might otherwise have complicated the jurisdictional claim. Chief among these is the question of the relationship that ought properly to obtain between the (liberal) state and the institution and practices of marriage. n24 Clearly, had the Court framed that question, other, wider questions concerning the relationship of the state to social life generally and to religious and family life specifically, would have appeared. And had they appeared, the Court, I should think, would have been led to compose an opinion very different, in tone if not in substance, from the opinion it finally rendered. n25 Rather than mature normative analysis of this sort, the Court appears instead content to play on, and then to cede legal and constitutional authority to, the common sense that there is a difference between marriage at city hall and marriage at a church (or syn-

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agogue, temple or mosque). Common sense, however, makes for poor political philosophy and practice, and, in any event, it ought not, ever, to serve as a basis for judicial opinion on the proper reaches of state power. Or, so at least I shall argue when I again take up the distinction in Part III of this comment.

B. STATE AUTHORITY OVER "CIVIL" MARRIAGE


After birthing "civil" marriage by these meager means, the Court next delivers "civil" marriage to the care of the state. Its reasoning to this consignment is simple enough: (a) s. 1 of the Proposed Act "pertains to the capacity for marriage"; n26 (b) "s. 91 (26) [of the Constitution Act, 1867] confers on Parliament legislative competence in respect of the capacity to marry"; n27 (c) consequently, "s. 1 of the Proposed Act ... falls within a subject matter allocated exclusively to Parliament." n28 Yes, simple, it is; but as do all such syllogistic flourishes in law, this one too hides and shelters an absence that makes mockery of the certainty being tendered. Over the past several years, the Supreme Court of Canada has made much of purposive, contextual reasoning, especially so as regards the interpretation of constitutional provisions. Proper interpretation of a constitutional provision, the Court has declared, begins with an [* 11 04] examination of "the meaning of its words, considered in context and with a view to the purpose they were intended to serve." n29 Had this imperative been honoured here, n30 the Court would have sought to establish the purpose served by the relevant provisions of the Constitution Act, 1867, n31 which is to say, the purpose served by the split authority over marriage erected by s. 91 (26), which confers authority over "Marriage and Divorce" to Parliament, and s. 92(12), which confers on the povinces authority over "solemnization of Marriage in the Province." In so doing, the Court would have been driven to examine the legal history of the state's involvement in marriage, not just here in Canada, n32 but more importantly in Britain, whose constitution the Constitution Act, 1867 declares its model. It would have then confronted the legal and social facts that would be the very stuff of purposive interpretation, namely, that because the date of the state's first involvement in marriage is available, and because marriage as a social practice and institution of course existed prior to that date, and therefore independently from the state, the state's purposes, including the purpose authorized by s. 91(26), might concern matters other than exercising power over marriage and subjecting it to its will. n33 That the Court offers slick syllogism in the place of serious inquiry does, however, pay dividends, since it makes both easy and intelligible its next mission, the sounding of the depths of the state's authority over "civil" marriage.

C. THE STATE'S AUTHORITY OVER "CIVIL" MARRIAGE IS LIMITLESS


Several interveners confronted the Court with the following argument: that Parliament's authority over civil marriage under s. 91 (26) excludes the authority to define marriage in any fashion it wishes, either because the word "marriage" as used in s. 91 (26) has a fixed meaning n34 or because a same-sex definition "would trench upon subject matters clearly allocated to the provincial legislatures" under s. 92(12). n35 It is not important for present purposes to dwell on the arguments proffered by the interveners in support of these submissions, and not only because they are so woefully unimaginative. n36 Nor, need we dwell, [*1105] on the Court's response to them. Rather, what is important so far as the overall structure of the opinion is concerned is the Court's conclusion, namely, that "the meaning of marriage is not constitutionally fixed." n37 This must be taken to mean that, subject to judicial oversight n38 (and one wonders upon what, having granted the legislative branch such a plenary authority, the judicial gaze could then fix), n39 the state through Parliament may make of marriage anything it wishes. Now, this goes well beyond parliamentary supremacy in the Diceyan sense. n40 What the Court is here endorsing, rather, is a positivism writ so large that the sovereign's power is bled of any normative content or constraint and so permitted, as matter of constitutional principle, to pursue whatever instrumentalism, however coarse, it wishes, for any reason it may wish.

D. CONSTITUTION AS ENCOMIUM
The Court secures its view of state authority over civil marriage (and subsequently its view of the constitutional propriety of same-sex marriage) through a political epistemology that, though it has established itself as the idee recue among constitutional lawyers and judges in Canada, is most peculiar indeed. Under this view of matters, the Canadian Constitution-- the whole of it: the Constitution Act, 1867 n41 every bit as much as the Charter n42 --has a purpose deeper and wider than, and different from, the limitation of state power over individuals and social life. In Canada, rather, the Constitution aims at "structuring the exercise of power by the organs of the state" n43 in order, first, to secure "the continued relevance and ... legitimacy" of the state's "constituting document" n44 and, then, to "promote [consti-

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tutiona1] rights and values" so as to "enrich ... our society as a whole." n45 To achieve these ends, judicial interpretation of constitutional provisions must be "large and liberal, or progressive," n46 by which is meant, at least, that provisions must be rendered so as to "accommodate and address [the judicial branch's view of] the realities of modem life. " n47 [* 11 06] This view, which, borrowing from Lord Sankey's speech in Edwards v. Canada (A. G.), n48 devotees term the "'living tree' principle," n49 informs an "ambitious enterprise" n50 that serves to expand state power and aims to bond those subject to its rule to its values in the place of their own. That this turns liberal political and legal philosophy and practice upside down and sideways should be obvious, but the reasons bear reiteration. There are two. So far as the law generally is concerned, to think that its proper purpose is somehow about moving forward -- about making better and more perfect and whole and complete the life-world -- is to commit, in equal and fateful measure, to political perfectionism n51 and to unlimited government. n52 Both of those precepts, of course, violate commitments constitutive of the liberal state, the commitment, on the one hand, to leave alone those subject to its rule provided only they cause no harm, and the commitment, on the other hand, that follows ineluctably from this, namely, the commitment to limited and moderate government. I shall pursue these matters at greater length in the next section of this comment. It is the second reason, which concerns the place and status of a constitution in the liberal state, that is of more immediate concern. In addition to (and even as part of) securing limited government, the constitution of a liberal state may, as does the American Constitution, n53 serve as a myth of origin in the sense that it tells people about where their political arrangements came from and how the situation in which they live came about. What a liberal constitution may not do is create a caesura that separates a people from its past or that proposes a future for them that betrays limited government. Under the custodianship of Canada's judicial branch -- and, increasingly, with the connivance of an ideologically committed federal executive n54 and a weakened Parliament (and always, I should add, with endless applause from the legal academy)-- the Constitution [*1107] of Canada has, since the advent of the Charter in 1982, been interpreted so as to commit both these cardinal sins. Authoritarian states are revolutionary states of a specific sort. They defend and articulate their legitimacy in terms of their overthrowing of forms of life, political and private, which, according to their revolutionary calculus and consciousness, have in the past subjugated the "people." Revolution of this variety makes good its promise of a new and renewed life of (generally social) justice by erasing the ancien regime and cleansing the people of any remaining affection for it. As their legitimacy resides only and always in this, authoritarian states are activist states, bent perpetually to the task of weeding the garden of life of the past. Because they seek legitimacy in the consent of the governed, liberal states, even those born of revolution, take a very different attitude to the past. For a start, they take seriously the real past of the people and do not, in consequence, seek its erasure, even when, under exceptional circumstances, they may for good reason judge parts of that past wanting. n55 Nor, therefore, do they seek to reconstruct the received past in service to any dream that conjures up a life-world begun anew from scratch. Liberal states, rather, honour the people's past by seeking their consent in terms that acknowledge and proceed from that past. For just this reason, in liberal states, the law is viewed as belonging to the people: it embodies their whole way of life, and it originates not in the will of the sovereign, in any of its three guises, but in the traditions and practices of the people whose law it is. States resign their liberal credentials when they succumb to the temptation to reject the people's past in service to delivering them to a better, because cleansed, future. With rare exception, n56 the vast constitutional jurisprudence excreted by the judicial branch since 1982, has revealed a Canadian state quick to reject the past in just such a service. This is very much on display in the opinion here at issue. When it is argued that the people's past has proper normative and legal bite on the present, the Court declares that past now unacceptable n57 and opines that the present must be managed, and the future defmed, in terms of its view of the present circumstances of the people. n58 When it is submitted that "marriage is a pre-legal [*1108] institution and thus cannot be fundamentally modified by law," n59 the Court once again musters poor old Lord Sankey n60 to construct, irony entirely absent and certainty fairly oozing, this reason for rejecting in its entirety the people's past: "Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today." n61 When, fmally, it is submitted that marriage has a natural meaning-- which is to say, the meaning conferred upon it by the traditions and practices of the past-- the Court declares that it falls to the "proponents" of this view to "identify an objective core meaning"; n62 that different proponents proffered "competing opinions on what the natural limits of marriage may be";

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n63 and that, because Lord Sankey-- yes, His Lordship yet again-- "did not impose an obligation to determine, in the abstract and absolutely, the core meaning of constitutional terms ... it is not for the Court to determine, in the abstract, what the natural limits of marriage must be." n64 So, with and for reasons such as these, does this Court trivialize, reject and erase the people's past. With them as well, it abandons, not only those who would cleave to this past, but also its core and abiding obligation "to preserve the community of law, to discover and articulate the conditions under which political fraternity is possible." n65 No such fraternity is possible, of course, where the discovery articulated is that the views of some -- that, in this case, they appear to be the many is no matter n66 -- are so beyond the constitutional pale that they represent a now dead, because unacceptable, history. The subtext of this abandonment of the past, the grammar that lends it whatever cogency it may have, is the Court's view of the positive contribution of the Constitution. However, the sketch that I have so far offered of this understanding n67 is not enough, since the devil of unlimited government very much resides in the details to which we must now briefly attend. The "living tree" notion of the place and status of the Constitution is saved from demagoguery just and only because the values that it aims to articulate, legitimize, promote and spread, all remember for the continuing enrichment of society, are state values. Thus, does the Canadian Constitution become an encomium to the state, and the judicial branch its [*1109] solipsistic choirmaster. Thus too does the state, through its Constitution, commit itself to aredemptive politics that, by means and medium both, makes jest of limited government. Redemptive politics is a politics of conviction. The redemptive state is a state convinced that its proper purpose is to improve its subjects by imprinting on them, on their projects and character, the values that the state has made its own and declared superior. Such a state is not merely a custodian and guardian of the people's proper values, though it is clearly both. The redemptive state, rather, conceives of itself as the personification of those values and, with that, of the lives of the governed properly lived. Which is to say, state and people are, in theory, one, and so do they in fact become to the extent that the state succeeds in disarming the people of values that contradict or diminish its values. But this transformation, of the state into a person and persons into expressions of the state, comes at the cost, in equal measure, of moral arrogance by the state and of the moral disablement of the people. "To make [of the state] a unity and a person and then to attribute to it moral existence and moral rights" requires an arrogant analogical leap-- that the state has this existence and those rights because it is like a person -- that cheapens and distorts real existence, not least because it "creates a world" in which politics is no longer, in the fashion required by liberal political morality, "discontinuous with everyday life." n68 This morally laden and motivated Leviathan has as its means, everywhere it is constructed, a reconceived citizenship and, in liberal democratic states such as ours, it is always legitimated through the soothing medium of human rights. Consistent with its view of the constitution as an encomium to its values, the redemptive state considers citizenship, not as a burdensome cost ofliberty, but as a celebration of, and, in its proper conduct, as a commitment to, those values. Citizens are for it the means of its moral mission, and their commitment is the test of its moral accomplishment. That those values are often, as in Canada now, conflated with human rights and human dignity, makes declining the state's offer of neo-citizenship a tricky and sticky affair. Though those human rights, and the dignity they are said to protect, are never conclusively defined nor ever fmally disclosed, n69 by declaring its values to be expressive of them, the neo-liberal state, ours especially included, repositions itself in fundamentally important ways with respect to its subjects. Whereas under the liberal view, a constitution has as its proper object the constraint of executive and legislative power, takes as its object the validity oflegal rules, and has as its focus the relationship between the state and its subjects as citizens (and not as persons), the neo-constitution of human rights and dignity produces a very different normative typography. If the constitution is about human rights, then the concern of constitutional discourse and decision is the settlement of state norms concerning those rights and, with that, the consolidation of state power with respect to them; its focus is the [*111 0] relationship, as regards those norms, between the state and its subjects, not as citizens, but as human persons; and the entire enterprise is finally informed, not by the constrain of state power, but by those very state norms, the settlement of which is the constitution's mission. n70 In this morally engorged and socially imperialist state, law becomes the bride and pride of power and ceases to be "the bridle of power" that, since Bracton, our tradition has named it to be. n71 No longer does it shield the people from the state; the abnormal n72 law of the neo-liberal, redemptive state, rather, renders them, through its insistent demands on them as persons, expressions of the state's power. ***

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These four premises, along with the concepts and conceptions on which they depend, are, then, the powder that ignites the Court's constitutional mission and compels it to its constitutional destination. At first blush, that destination might appear a curious one. As mentioned earlier, the Court opines that same-sex marriage is not merely consistent with the Charter, but that it "flows from it." n73 The curiosity resides in the notion, on display here, that the constitution of a liberal state is properly conceived as a foundry of values to which the state is bound and not merely as a bulwark by which it is bound. In the liberal view, of course, the constitution plays no such positive purpose: it is no more and no less than an institutional strategy to limit state power. Under the Court's view, the Constitution serves the very different purpose of instructing the state on how properly to exercise its power. Viewed from that vantage, the Court's opinion must, I think, be read as declaring that same-sex marriage is a constitutional necessity. Yet, given these premises, this should not surprise. If the state is indeed the personification of communal values and if it is therefore pledged to seed those values amongst its subjects, then it makes abundant sense to articulate, in ever finer detail, which values it must personify and promote. That this is at loggerheads with representative government and majoritarian rule appears to be of no moment to this Court or to any of the many other devotees of Canada's recently minted constitutional tradition. n74 III. THE PROPER PLACE OF THE POLITICAL As noted previously, the Court at one point opines that "marriage,.fiom the perspective of the state, is a civil institution." n75 This assertion conceals two premises: namely, that it is proper for the state to take a view on social institutions like marriage, and that the view taken [*1111] by it here is the proper one. The real and revolutionary importance of the Court's opinion in the Same-Sex Reference resides, in my view, in its answer to the executive's views on these matters. I shall proceed as follows: first, I shall take the first premise to concern the relationship that ought properly to obtain between the liberal state and the institutions and traditions of private life and examine the executive's and the Court's views as responses to that concern; second, I shall examine the Court's views of how that relationship works out with respect to those two fundaments of private life, family and faith. In all of this, it will be my purpose to convince, so far as space will permit, that, by establishing the primacy of the political over the social, the same-sex marriage initiative has set the Canadian state on a path that threatens social freedom generally and the freedoms of family and religious life particularly. A. STATE AND CIVIL SOCIETY n76 Liberal politics expresses, and proceeds from, two core commitments, namely: that the state exists for the sake of persons, for their good and not its own (the priority ofpersons); and that, since the good of persons resides in their authoring their own lives through their freely chosen interactions with other persons, social life is prior, and superior, to politics (the primacy of the social). From these two commitments arise the moral sense and the institutional architecture of the liberal state. So far as the first is concerned, the state is, on the liberal view, a "negative virtue" whose character and legitimacy resides in "what it prevents rather than what it engenders." n77 This conception of political goodness alone accounts for the institutional forms so familiar and so intertwined in liberal states, limited government and social freedom. A limited state, a liberal state, is one that acknowledges its devolution from, and containment by, the social and it is, therefore, one for which the social serves as a moral-ethical power greater and higher than its own. Such a state erects barriers to its own power in order to honour the primacy of the social. But its governance does not necessarily end there. The liberal state may also act to preserve and to protect the personal sovereignty of those subject to its rule by supporting the life-forms through which that sovereignty is exercised and accomplished. In this fashion does it deliver its primary good, social freedom, which is but the positive freedom of a free people to construct their lives and affairs by means freely chosen by each of them. The sphere of social freedom, which the state in this way exists to preserve, is known in liberal political and legal philosophy as civil society. n78 But nothing turns on the name. What [*1112] is important is the message, at once moral and institutional, that that name is meant to send: first, that there exists a life-world beyond law and politics for the sake of which the state exists and from which it draws its legitimacy; and, second, that the state acts for the sake of that life-world and, therefore, with authority, only when its actions neither diminish nor dominate the life-world. What a liberal state may not do, therefore, is manage the life-world by imposing values, whatever the reason and whatever their source, upon it. What a liberal state must do, if it does anything at all, is recognize and acknowledge, and in that fashion, honour and preserve, the life-world. n79 That, in the Same-Sex Reference, the federal executive and the Court answered the state-society question in a tone and grammar very different from this, should, I hope, be clear. Rather than parsing the argument of the second part of

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this comment, I wish instead to consider in finer detail the method the state here deployed to claim sovereignty over marriage. From that exploration, one may learn how neo-liberal states like ours seek to maintain legitimacy despite their transgression of fundamental precepts of liberal governance. One might also learn something of the consequences of their so doing. What such states do, and what the Canadian state has done here, is to pretend that their perfectionist programmes and policies conform to, and sound in, the commandments of liberal governance. In the Same-Sex Reference, there are two such pretenses: first, that the state remains constrained by a higher moral-ethical power; and, second, that legal history secures the state's view that marriage exists in two forms, a political form (civil marriage) and a social form (religious marriage). The first is pretense because it identifies that higher power, not with the life-world beyond law and politics, but with the state's own perfectionist values as they reside in the state's own redemptive constitution. The second, on which I will dwell, is pretense because legal history, honestly and seriously considered, supports no such distinction between civil and religious marriage. Let me make three things painfully clear: first, there can be no marriage in the required political sense, just because liberal states cannot claim ownership over social institutions (rather-- and on the pain otherwise of the loss of their legitimacy-- theirs is either to ignore or else to recognize and to preserve those institutions); second, the civiVreligious marriage distinction is fiction, not, note, a legal fiction, but a political fiction, plain, pure and simple; and, third, the judicial branch has, over the last several years, spun that fiction whole-cloth through its wholesale misinterpretation and misrepresentation of legal and social history. So far as the latter is concerned, the facts are these: (a) prior to the thirteenth century, when the Church finally managed to take control of it, marriage was an entirely social practice; (b) marriage only became a sacrament in 1439; and (c) the Catholic Church only began requiring the attendance of a priest for valid marriage in 1563, after theReformation. n80 [*1113] The state came to marriage even later than did the Church. Indeed, it was not until1753, with the passage of Lord Hardwicke's Marriage Act, that the British state became a significant player in the joining together of men and women as husbands and wives. n81 However, the manufacture of the distinction is not a consequence alone of a failure by our judges to acknowledge and address the history of the institution on which they had set their constitutional sights. Alas, they had also to manhandle, in fashion approaching deceit, the state's relationship to marriage, over the wealth of our tradition and since 1753 particularly. The distinction between civil and religious marriage can serve as permission to make marriage pass (neo-)constitutional muster, only if civil marriage might somehow be construed as a positive act of the state. But this is no easy matter. None of the classics of our legal tradition-- not Bracton, n82 Fortescue, n83 Coke n84 or Blackstone n85 --at all helps in construing marriage as a construction of the state: though each of them deals with marriage n86 none of them defines marriage nor reports any court as having done so. Nor does legislative history assist. Until quite recently, n87 the legislative branch found it unnecessary to define marriage; rather, whenever the state spoke of marriage, it apparently proceeded on the assumption that marriage had a social and legal meaning so plain that taxing it with definition was besides any point. None of this, however, has served to impede our committed judiciary. On the bare basis of an 1866 House of Lords decision, it has, rather, sought to convince that civil marriage is [* 1114] indeed a state-created entity that might, unlike religious marriage, properly be made to dance to the state's constitutional tune. Hyde v. Hyde and Woodmansee n88 concerned whether a party to a polygamous marriage contracted in a foreign jurisdiction (there Utah) was entitled to matrimonial reliefer to a declaration as to the validity of the marriage in the English courts under the Divorce Act then governing those matters in England. n89 The Court in Hyde answered negatively in both regards, and those answers remained the rule in Hyde until abolished by statute. En passant, n90 the Court delivered itself of the following opinion on the nature of marriage:

What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries; but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defmed as the voluntary union for life of one man and one woman, to the exclusion of all others. n91

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According to our judges -- including, apparently, those sitting in the Same-Sex Reference n92 -- these words prove that marriage, in its civil form, is a positive creation of the state. Of course, the definition in Hyde, on any responsible reading, proves no such thing. Just the contrary: what the Court was, by its own account, about in Hyde was not prescription, but recognition. That is, the Court was undertaking, not to legislate what constitutes marriage, but rather to determine what in societies such as ours is recognized as constituting the form oflife, the "institution," n93 we know as marriage. That the Court takes pains to distinguish the institution itself from "the variety of legal incidents" that "the laws ... throw about" the institution makes plain, I should think, that it was not conflating marriage as a cultural practice with the law of marriage, and, still less, claiming state sovereignty over marriage. n94 So viewed, the rule in Hyde, if there be a rule at all, is that marriage is a form of life to which the state in certain measure responds, but which it does not itself create. There is a distinction that is properly at play here, but that distinction does not reside in the faux distinction, concocted by the judicial branch, between civil and religious marriage. The distinction that counts is, rather, the distinction between state and society. The Supreme Court of Canada, of course, hides behind its investment in the civil-religious distinction, in order not once to acknowledge that this is so. Yet, by the same means, it does nonetheless provide an answer to the law and society question, at least so far as marriage is concerned. That answer is this: that, as regards this form of life, the political has primacy over the social. Nor is this answer modestly delivered: because marriage has no fixed political or legal meaning, it stands now entirely as the handmaiden of the state, at beck and call to the state's always revisable interests and values. Whether this commitment to the primordiality of political causation can be made, as the Court appears to think, without cost to the remainder [* 1115] of social life-- and to family and religious life particularly-- is the matter to which we must now tum. That this now becomes a necessary concern discloses, without more, the significance of the departure undertaken by the Supreme Court of Canada in the Same-Sex Reference. B. FAITH AND FAMILY: PLACE AND CONSEQUENCES Faith and family-- the practices of transcendence and of the transmission of cultural attachments -- stand at the very heart of autonomous social life and, because they do, they are together the primary elements of that moral-ethical order which alone can tame Leviathan and render it the modest and moderate enterprise that liberal political morality commands it to be. Before proceeding to the effects that the present claim of state supremacy over marriage might have on each of these, it will be prudent first to explore, however briefly, the contributions of faith and family to limited government. 1. PLACE As noted earlier, n95 in rejecting what it (incorrectly) took to be the common law legislation regarding marriage in Hyde, the Court took exception to the Hyde Court's reference to Christendom. As put by the Court: "The reference to 'Christendom' is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case Canada is a pluralistic society." n96 Now, this is of present interest, not because, assuming the Court meant to declare the Hyde Court sectarian, it is clearly wrong. n97 The interest resides, rather, in the passage's display of a woeful historical illiteracy, and in its disclosure of a fundamental misapprehension of the place of religious life in the liberal project. So far as the former is concerned, it is remarkable indeed that our highest Court appears entirely unaware of the importance, historically, of Judeo-Christian culture to the development of the Euro-American legal tradition. As space prevents my parsing the relevant literature, n98 two comments will have to suffice. First, it is everywhere (else) accepted that "as a matter of historical fact the legal systems that are heirs to the Western legal tradition have been rooted in certain beliefs or postulates ... such as the structural integrity of law its [* 1116] continuity, its religious roots, its transcendent qualities." n99 Second, it is everywhere (else) understood that certain central commitments of that tradition-- and here especially included are moral equality and constitutional governance n100 --are unintelligible, both as historical accomplishments and as normative ends, without the sustenance ofEuro-American religious culture. Not only is religion central historically in these ways, the project of modest governance is impossible to conceive without the sorts of persons marked by the self-conception that religion makes possible. Human beings are transcendent needy beings every bit as much as they are resource dependent beings; n101 and the institutions of private religious life are a response to the former every bit as much as the institutions of private property are a response to the latter. Nor only that: modest government is no more possible in the absence of private religious life than it is possible in the absence of private property. This is so, in both regards, because modest governance, limited government, requires subjects

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who conceive of themselves as independent from the state and who seek their spiritual and material ends, not through and in the state, but by means of the institutions, the patrimony of private life, which exist beyond the state. All of this holds, historically and normatively, for family as well. The Western ideal of the family arises, simultaneously, from the acknowledgement of, and from an attempt to overcome, the frailty of human knowledge and judgment and the ambiguous worth of human creations. Our faith in the family is, for these reasons, at root a rejection of the artifice and arrogance of politics. nl02 At the same time, however, the practices of family life have been thought crucial to proper politics because those practices alone are thought capable of forming persons seized of the character and disposition necessary for the flourishing of liberal political culture. nl 03 Faith and family, then, are central to the project of liberal governance. They are the sites most subversive of the tendency of states to imperial expansion and despotic consolidation. They are this both because they are, by nature and stature, the practices most removed from the spirit of politics and because each is, for that very reason, a foundry in which persons of the sort required for limited government are alone to be formed.

[* 1117] 2. CONSEQUENCES
The single most important condition of human freedom is the diffusion of power in a society. In societies served by liberal states, power is diffused in two fashions. So far as the state itself is concerned, it is constructed in a fashion so that power is spread between its own branches. So far as society is concerned, the life-world is preserved as the realm of freedom by disenabling politics there and by according special, and indeed sacred, sovereignty to the practices of faith and family. I want to suggest that the Canadian state's same-sex marriage initiative changes these, the structures of public and private life of free societies. Committed states-- those that believe in a socio-political ideal rather than in always-transient policy ideals nl04 -- are ideological states, and ideological states are morally unified and structurally consolidated states. I have already characterized the Canadian state as a state unified under the banner of an expansionary, social constitution. nl 05 Brief attention must now be paid to how a state of that sort degrades and erodes the separation of powers. Montesquieu claimed that "political liberty ... is present only when power is not abused," and that for power not to be abused, "power must check power by the arrangement of things." nl06 "In order," he thought, "to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist the other." nl07 Thus was he led to distinguish between the legislative, executive and judicial powers and to propose that "liberty is formed by a certain distribution of the three powers." nl08 "When legislative power is united with executive power in a single person or in a single body ofthe magistracy, there is no liberty... Nor is there liberty if the power of judging is not separate from legislative power and from executive power." nl09 This must be so, he thought, because power will inevitably be abused, unless one power is "chained to the other by their reciprocal faculty of vetoing" nllO or unless they are "counter-balanced." nlll According, then, to the classic agonistic view of the separation of powers, the proper relationship between the powers of a state devoted to, and fit for, liberty is one of struggle and resistance. Each of the powers, that is, should be a centre of resistance, one against the other, to the proclivity of the state as a whole to serve its own good rather than the good of the liberty of its subjects. The Canadian state, as delivered in the Same-Sex Reference, is no such state. That state, rather, speaks with a unified constitutional voice, in service to its settlement of constitutional values, and by means of its assessment of "the realities of modem [* 1118] life." nll2 The branches of this state are, each of them separately and all of them together, bound to the task of "structuring the exercise of [their] power" nl13 so as to promote the state's values and, in that way, to enrich society. nll4 Such a state, of course, makes jest of the separation of powers and of the liberty that state structure aims to honour and preserve. The structure of the life-world, faith and family especially, fares no better than does the structure of the public realm under the new day of state governance fully announced and fmally accomplished in the Same-Sex Reference. My argument in this regard, I should note, is not based on the Court's uncertainty as regards the ambit of religious liberty, as threatening to some as that might (properly) nll5 appear. nll6 Nor does it arise from the Court's insouciant carriage of objections arising from the maintenance of the traditions of marriage and family life nll7 or concerning the effects same-sex marriage may have on marriage. nll8 My argument, rather, concerns the socio-legal position in which faith and family are now placed. Two matters provide entry. When it was argued that "the Proposed Act will have the effect of imposing a dominant social ethos," nll9 the Court would have none of it and summarily dismissed the concern. nl20 Yet, the Court also

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announced as a value of our constitutional jurisprudence that the Charter never be "trivialized." n 121 It is in the confluence of these two -- the dismissal of concerns over the impact of state on social life, on the one hand, and the cloying solicitude about the status of state values, on the other-- that my argument emerges. Simply put, the argument is this: that the Court has elevated politics over social life so as, first, to demand the conversion of the practitioners of faith and marriage to state values and, second, to weaken their fidelity to the life-world. The elevation arises from the Court's very perspective. For it, social life exists to be located, enclosed and judged by the state's constitutional values. The practices of social life are, on this view, epiphenomenonal: rather than being seen as prior and superior to state, they are instead reduced to something upon which the state gazes as rights and upon which it may act as of right in service to constitutional equality. So rendered, it is easy, as for this Court, [*1119] to proceed on the understanding, first, that the state, properly, has a view of social life and, second, that social life has no view of the state, n122 not least any that ought to be heard. n123 This message -- state declared and constitutionally enforced-- asks much of its recipients. Minimally, it demands that the state's subjects, as persons, acknowledge the final and binding authority of the state over the life-world. To the extent that it succeeds in that demand, it will also effect a conversion among its subjects from the values of private life to public values, at least to the extent that the former, in the state's assessment, conflict with the latter. This, in turn, works the moral weakness mentioned. Fidelity to one's world becomes contingent because fidelity is always subject to state supervision and denunciation. As the unified state makes jest of limited government, the elevation of the state over social life in these ways makes jest of social freedom. For the test of social freedom is its defense of freedom from and against the claims of law: it does not exist where its dominion is whatever remains, for the time being, beyond the law's empire. Freedom is not concocted from, nor can it be preserved as, crumbs of tolerance from Caesar's table.

C. THE COURT'S CAVEAT


As noted previously, the Court declined to answer the question, added by the Martin government, concerning the constitutional acceptability of the opposite-sex definition of marriage. My concern here is not the arguments that the Court offers in support of its decision to decline (which, in my view, are, each and all, bootstrapping of a very unhappy sort). My object rather is to examine the difference, if any, its decision on this matter makes to what I am claiming is the overall structure and import of its opinion. The Court's decision has been widely hailed as an exhibition of judicial wisdom and statecraft. n124 I think these views are profoundly mistaken. Rather than statecraft and, even less, an acknowledgement of Parliamentary authority, the Court's decision to decline to answer to this matter signals its determination to elide delivering the message that its own jurisprudence and the conduct of the lower courts in same-sex marriage cases required of it. On the one hand, it sought, as we have seen with much certainty and conviction, to preserve the judgment of the lower courts as regards the constitutional propriety of same-sex marriage. On the other hand, by declining here, it sought to distance itself from the premise on which those courts made their constitutional determinations; namely, that the opposite-sex definition of marriage is constitutionally diseased because incurably discriminatory. Thus does the Supreme Court of Canada deliver instead the constitutional alchemy here on display: same-sex marriage is a constitutional commandment, but that commandment does not require the denunciation of the opposite-sex definition. Of course, as the lower courts rightly [*1120] acknowledged, it does. Sloughing that necessity off to Parliament or worse still to the now diminished communities of faith, to await another day, is the very opposite of candour, wisdom and statecraft. It is rather sleight of hand and prudence of a self-directed and self-serving sort.
IV. CONCLUSION

A decent society is one in which institutions do not humiliate. n125 A decent state is one whose institutions do not humiliate their subjects as persons. The Canadian state, in my view, is fast becoming an indecent state in just that sense, and I shall conclude this already too long comment with a brief exploration of the causes and consequences of that most unhappy political circumstance. The immediate cause is, of course, constitutional paternalism. The Canadian state -- unprepared as it was, by dint of its parliamentary nature and history, to handle the republicanism abruptly introduced into it by the Charter in 1982 -has seen its Constitution become, in very short order, not only a means for the expansion of state power over private life, but also the end towards which both the state and society are properly to strive. Need I say, neither this de facto expansion nor this normative elevation was undertaken for the purpose of, or by way of, an assault on the institutions,

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traditions and practices of civil society. Just the contrary: as paternalism is wont to do, the motive has been benevolence and the means the gradual pollution and, with that, the inexorable assimilation, of one set of values by another. Yet, paternalism is not, for either reason, saved of the sin of humiliation. This is especially so when the values causing the pollution and assimilation are state articulated and sanctioned. For in that case, the lowering of self-respect and self-reliance of persons in their lives and affairs is not a matter of persuasion, but of coercion. This novel historical and constitutional narrative of course carries many costs, but two in my view are especially important. The ftrst of these is the sapping away of political conscience. For those seized of high-minded constitutional conviction -- and this is everywhere on display in the course of the state's carriage of the same-sex marriage matter -nothing remains of a political conscience that restrains because it acknowledges that some things are impossible and that some aspirations cannot be satisfied. n126 Let loose from tradition and traditional moral viewpoints, political conscience instead becomes permission and, as here, actions and policies inconceivable and incomprehensible barely a generation ago become not just imaginable, but, depending on whichever ideology has replaced tradition, necessary. The second cost is a cost to qualities and experience of social life. The imperialism of the neo-constitution blurs borders, makes porous barriers and renders possible the impossible. In so doing, it scrapes away the bumpy, chaotic surfaces of life lived in freedom beyond the [* 1121] state. In its place, the state constructs a life ordered by decree, a life no longer fragmented by difference but flattened by the iron of coercive norms. n127 Canada, of course, is alone in none of this. Due perhaps to its political circumstances, past and present, it has however distinguished itself, as it has once again in the Same-Sex Reference, as an exceptionally devoted, if not as a very adept, neo-liberal state. POSTSCRIPT We're talking about changing one of the central and longstanding institutions of society. --Federal Department of Justice (1 February 2005) n128 As he tabled the landmark Civil Marriage Act ... , he talked with messianic zeal about the "march towards equality in this country" and "proceeding with a transformative constitutional process." --John Ivison n129 On 1 February 2005, the federal executive tabled in the House of Commons its legislative response to the Supreme Court of Canada's advice in the Same-Sex Reference. It tabled the Civil Marriage Act-- Bill C-38 n130 --it says, in order "to extend legal capacity to marry for civil purposes to same-sex couples while respecting religious freedom." n131 And it had to do this, it declares, because it "has responsibility to support [the] institution [of marriage]" because "that institution ... strengthens commitment in relationships and represents the foundation of family life for many Canadians." n132 What it is in fact doing, of course, is continuing (with renewed vigour and expanded boldness, yes, but continuing nonetheless) the task of spreading the good news of the constitutional values of which it sees itself as [* 1122] master and commander. Its methodology is what one would expect. Social life will be further occupied by the state; and, through the state's coercive power, social relationships will be, not just re-defined at law, but changed root and branch by law. I wish by way of ftnal comment briefly to disclose how this task is undertaken in this Bill as regards the family and at what cost. The majority of the "consequential amendments" contained in sections 5 through 15 of the Bill aim, in the statutes at which the sections are directed, to replace the term "natural parent" with the term "legal parent" n133 and the term "blood relationship" with the term "any legal parent-child relationship." n134 Their aim, that is, is to de-naturalize the family by rendering familial relationships, in their entirety, expressions oflaw. But relationships of that sort-- bled as they are of the stuff of social tradition and experience -- are no longer family relationships at all. They are rather policy relationships, defined and imposed by the state. Ways of life disintegrate for any number of reasons. But two phenomena, in my view, always attend their decline-alienation and forgetfulness. When practitioners of a way of life become detached from their labours, they become only partially engaged in, and tend no longer to experience themselves as fully revealed through that way oflife. Forgetfulness is no less a corrosive force. When practitioners of a way of life lose a sense of historical depth and connection, their sense of the present, as a moment in moral time, tends to fail as well. Tradition militates against both of these forces. It bestows on practitioners a sense of being located in a continuing way of being, one that existed before they came to it and one that will continue after they depart it; and it arms them with a reason transcendent to themselves and,

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with that, with the will, to resist the forces that, in modern life especially, would lure them into detachment and forgetfulness. It occurs to me that the initiatives being carried forward in this Bill are an assault on the traditions of family life and that they risk the disintegration of that way of life, at least to the extent that they lure fathers and mothers, and husbands and wives, into detachment from and forgetfulness about the moral point of family life.

Legal Topics:
For related research and practice materials, see the following legal topics: Family LawMarriageNature ofMarriageFamily LawMarriageValidityPlural MarriagesFamily LawMarriage ValiditySame-Sex Marriages

FOOTNOTES:
n1 J.R. Lucas, Responsibility (Oxford: Clarendon Press, 1993) at 118.

n2 Alexis de Tocqueville, Democracy in America, vol. 2 (New York: Vintage Classics, 1990) at 317, 319.

n3 Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698 [Same-Sex Reference].

n4 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

n5 Same-Sex Reference, supra note 3 at paras. 3, 4, citing Order in Council, P.C. 2003-1055 (16 July 2003) and Amendment to Order in Council 2003-1055, P.C. 2004-0028 (26 January 2004) (both made under the Supreme Court Act, R.S.C. 1985, c. S-26), online: Orders in Council <www.pco-bcp.gc.ca/oic-ddc>. The amendment, which added the fourth question, was at the initiative of the minority Martin government. The first three questions are those of the former Chretien government.

n6 Department of Justice Canada, Press Release, "Reference to the Supreme Court of Canada" (17 July 2003), online: Department of Justice Canada <http://canada.justice.gc.ca/en/news/nr/2003/doc_30946.html>.

n7 (2003), 65 O.R. (3d) 161 [Halpern].

n8 In this, the Ontario Court of Appeal distinguished itself from the British Columbia Court of Appeal in EGALE Canada v. Canada (A. G.). (2003), 225 D.L.R. (4th) 472 [EGALE] and from the Quebec Superior Court in Hendricks v. Quebec (P. G.), [2002] R.J.Q. 2506, both of which courts -- though each reached the same result, and by the same means, as did the Ontario Court, regarding what constitutes a constitutionally proper definition of marriage -- provided Parliament with a period of grace in which to enact proper legislation. Following Halpern, a three-member panel of the B.C. Court of Appeal set aside the grace period, in order to allow same-sex couples to marry immediately. As well, during the period following Halpern and before the release of the Supreme Court's opinion in the Same-Sex Reference, courts in Saskatchewan, Manitoba, Nova Scotia, Yukon and Newfoundland and Labrador joined the Courts in Halpern and EGALE in declaring discriminatory, under s. 15(1) ofthe Charter, the opposite-sex definition of marriage and in putting in its place the Halpern definition.

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n9 Halpern, supra note 7 at para. 148. For a summary of, and comment on, the Ontario Court's reasoning to this result, see, F.C. DeCoste, "The Halpern Transformation: Same-Sex Marriage, Civil Society, and The Limits of Liberal Law" (2003) 41 Alta. L. Rev. 619 ["Transformation"].

n 10 These arguments were tendered by counsel (all counted, 31 of them) representing both the Attorney General of Canada and a host of interveners (19 in all, several of which were multi-party).

nil "Opinion" in a very precise sense, since reference cases are productive of advice and not of judgments that bind, alter or otherwise affect the law.

n12 Same-Sex Reference, supra note 3 at paras. 4-7.

n13 On this, the Court reasoned as follows because "section 2 of the Proposed Act relates to those who may (or must) perform marriages," because that matter "necessarily relates to the 'solemnization of marriage,"' because authority over that "matter is ... allocated to the provinces under s. 92(12) of the Constitution Act, 1867," s. 2 of the proposed legislation "does not fall within the exclusive legislative competences of Parliament" under its s. 92(26) authority with respect to "Marriage and Divorce." See Same-Sex Reference, ibid. at paras. 36-39 [emphasis in original]; and Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, reprinted in R.S.C 1985, App. II, No. 5.

n14 Same-Sex Reference, ibid. at para. 43 [emphasis added]: Turning to the substance of the provision itself, we note that s. 1 embodies the government's policy stance in relation to the s. 15(1) equality concerns of same-sex couples. This, combined with the circumstances giving rise to the Proposed Act and the preamble thereto, points unequivocally to a purpose which, far from violating the Charter, flows from it.

n15 Ibid. at paras. 41, 43.

n 16 Ibid. at para. 1.

n17 As of course did the executive, initially in its framing of the reference and subsequently in its written submission. Regarding the latter, see "Factum of the Attorney General of Canada" (24 October 2003) at paras. 1-2, 11-16, online: Department of Justice Canada <www.justice.gc.ca/en/dept/pub/factum/index.html>.

nl8 Same-Sex Reference, supra note 3 at para. 22.

nl9 That it speaks in this way knowing full well that when Parliament has twice spoken on the matter, it did so to affirm heterosexual marriage, renders its speech both disingenuous and a remarkable departure from the separation of powers. These affirmations were each, of course, in response to judicial initiative on same-sex marriage. The first was by way of a Commons motion, which was passed on 8 June 1999 by a vote of 216 to 55 in favour, and read as follows: "Marriage is and should remain the union of one man and one woman to the exclusion of all others, and ... Parliament will take all necessary steps to preserve this definition of marriage in Canada." See House of Commons Journals, No. 240 (8 June 1999) at 2064. For the second, which was no mere motion, see infra note 87.

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n20 Same-Sex Reference, supra note 3 at para. 22. This formulation will be considered in Part III of this comment.

n21 Ibid. at para. 42.

n22 See e.g. ibid. at para. 16. ("The dominant characteristic of s. 1 of the Proposed Act is apparent from its plain text: marriage as a civil institution ... This section stipulates the threshold requirements of that institution.")

n23 As put by the Court: "The Proposed Act is limited in its effect to marriage for civil purposes: see s. 1. It cannot be interpreted as affecting religious marriage or its solemnization" (ibid. at para. 55). Yet, there may be some uncertainty here: "The right to same-sex marriage conferred by the Proposed Act may conflict with the right to freedom of religion if the Act becomes law" (ibid. at para. 52).

n24 Incidentally, that first the executive and then the Court monikers the marriage over which the state has authority, "civil" lends a note of irony to matters, since in our tradition the adjective "civil" --as in civil rights-is generally meant to impart that the matter so described exists prior to, and independent from, the state. See e.g. Lloyd L. Weinrib, "What Are Civil Rights?" (1991) 8:2 Social Philosophy & Policy 1 at 2 (arguing as follows: "Civil rights are ... prior and independent from law. Laws are enacted to protect civil rights; failing enactment, the law is said to deny them. They seem, therefore, not to depend on the law for existence, but only for recognition"). For the notion of the civil more widely considered as civil society, see infia Part liLA.

n25 The tone of the Court's text is at once summary and dismissive. See for e.g. Same-Sex Reference, supra note 3 at paras. 24 ("none of these arguments persuade"); 25 ("the appeal to history therefore in this particular matter is not conclusive"); 30 ("it is therefore distinguishable and does not apply here"); 33 ("this is clearly not the case"); 48 ("this argument was discussed above ... and was rejected"). This tone is not incidental hubris; it is instead a necessary consequence, and expression, of the Court's conviction about the moral stature and place of the constitution. About which see infra Part II.D and "Transformation," supra note 9 at 641.

n26 Same-Sex Reference, ibid. at para. 16.

n27 Ibid. at para. 18. Constitution Act, 1867, supra note 13.

n28 Same-Sex Reference, ibid. at para. 19.

n29 R. v. Blais, [2003] 2 S.C.R. 236 at para. 16.

n30 Incidentally, the Court distinguishes Blais in a manner both curt and specious: see Same-Sex Reference, supra note 3 at para. 30.

n31 Constitution Act, 1867, supra note 13.

n32 In its Factum, the federal executive put before the Court a not very helpful, and very brief, legal history of the state and marriage in British North America (see supra note 17, paras. 12, 25-27, 29). A better history

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would direct the Court to proceed in its interpretation from the facts of social and especially religious life in Canada at that time. Viewed from that vantage, the split constitutional authority over marriage would appear designed to recognize and preserve the differing social practices of marriage and in that way to prevent either order of government from favouring one at the expense of the other. That interpretation, of course, would preclude rendering the provisions, as the Court does here, so as to vest ownership of marriage in the state.

n33 For more on the social and legal history of marriage, see infia notes 80-87 and accompanying text.

n34 Same-Sex Reference, supra note 3 at paras. 20-21. Fully stated the argument was that "the meaning of marriage is constitutionally fixed, necessarily incorporating an opposite-sex requirement," because s. 91(26) "effectively entrenches the common law definition of'marriage' as it stood in 1867."

n35 For full statement and Court's rejection of this submission, see ibid. at paras. 31-33.

n36 Unimaginative: the first because intentionalist interpretation remains so in disfavour and so easily set aside (but see L.M. Solan, "Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation" (2004) Brooklyn Law School, Public Law Research Paper No. 5, online: Social Science Research Group <http://ssrn.com/abstract= 515022>); and the second because it both misses the real point and makes the point it does address so badly.

n37 Same-Sex Reference, supra note 3 at para. 21 (sub-heading).

n38 As put by the Court: "In essence, there is no topic that cannot be legislated upon, though the particulars of such legislation may be limited by, for instance, the Charter" (ibid. at para. 34).

n39 Though having nothing upon which to fix judicial action has deterred none of the courts whose machinations have led to the present Take, for instance, the Court in Halpern, supra note 7: it credentialized its directive concerning the law of marriage by latching onto the House of Lords judgment in Hyde v. Hyde and Woodmansee (1866), I L.R. P. & D. 130 [Hyde], which through cynicism or stupidity (and on the necessarily implied premise that before 1866, neither the state nor the law had any conception of what marriage might be), it read as constituting marriage at law as the union of one man and one woman to the exclusion of all others. For commentary on this aspect of Halpern, see "Transformation," supra note 9 at 622-25.

n40 A V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillian & Co., 1924) at c. 1.

n41 Supra note 12. For the Court's declaration that heads of power are subject to "progressive interpretation," see Same-Sex Reference, supra note 3 at paras. 22, 29.

n42 Supra note 4.

n43 Same-Sex Reference, supra note 3 at para. 23.

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n44 Ibid.

n45 Ibid. at para. 46.

n46 Ibid. at para. 23.

n47 Ibid. at para. 22.

n48 [1930] A.C. 124 (P.C.).

n49 Same-Sex Reference, supra note 3 at para. 24.

n50 Ibid. at para. 23.

n51 For recent work concerning, see Steven Wall & George Klosko, eds., Pelfectionism and Neutrality: Essays in Liberal Themy (Lanham, Md.: Rowman & Littlefield, 2003); and George Sher, Beyond Neutrality: Pelfectionism and Politics (New York: Cambridge University Press, 1997).

n52 See e.g. Arthur A. Shenfield, Limited Government, Individual Liberty and the Rule ofLaw (Chettenham, U.K.: Edward Elgar, 1998); and Eugene W. Hickok et al., eds., Our Peculiar Security: The Written Constitution and Limited Government (Lanham, Md.: Rowman & Littlefield, 1993).

n53 See e.g. Bruce A. Ackerman, We The People: Foundations, vol. 1 (Cambridge, Mass.: The Belknap Press ofHarvard University Press, 1991).

n54 Minister of Justice Cotler has, since his elevation to the federal executive, quickly established himself the poster boy of this ideological fervour. Recently, he intoned as follows: "The Charter is the expression and entrenchment of our rights and freedoms, the codification of the best of Canadian values and aspirations. It defines us as to who we are as a people and what we aspire to be" (Cristin Scmitz, "Tories vow to amend new bill" National Post (2 February 2005) A8). Even were this view not preposterous as political philosophy-- and in a moment I shall attempt to convince that it is--it would remain silly, both because the provisions of Charter are no more than a local iteration of standard constitutional protections and because Canadian political and social history did not begin in 1982. Concerning the latter, in a news release attending the tabling of Bill C-38 (about which see infra, Postscript), the Minister persists, with pride, in this historical revisionism: "Canada," he is quoted as declaring, "is a land built on a tradition of tolerance and respect, rooted in a Charter." (Department of Justice Canada, Press Release, "Government of Canada to Introduce Legislation to Extend Civil Marriage to Same-Sex Couples" ( 1 February 2005), online: Government of Canada <http://canada.justice.gc.ca/en/news/nr/2005/doc_313 74.html> ).

n55 There is a caveat here, a narrow but nonetheless essential one: if a social institution stands so egregiously at odds with liberal political morality that its continuance clearly compromises the liberal credentials of the state and so its status as a liberal state -- such as was the case with slavery in antebellum America - then a liberal state has an obligation, just because it is a liberal state, to take on the task of abolishing the institution. For an exploration of the proper response of the liberal state to "bad civil society" of a less threatening sort --

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there defined as civil associations that "actively and publicly challenge [the value of reciprocity] through the promotion of hatred, bigotry, racism, anti-Semitism, and aggressive xenophobia" (infra at 839-40) --see, Simone Chambers & Jeffrey Kopstein. "Bad Civil Society" (2001) 29 Political Theory 837.

n56 As regards the instant matter, I think of LaForest J.'s comments in Egan v. Canada, [19954] 2 S.C.R. 513. In a remarkably short period, LaForest J.'s concession of marriage to the realities of social life and human biology has been everywhere erased from judicial and governmental memory.

n57 That the Court, in an offhanded manner, pinned the past's unacceptability on its association with Christianity will be addressed in Part III of this comment. As put by the Court, after what appears to be a reiteration of the silliness in Halpern (supra notes 9, 39), with respect to the significance of the decision in Hyde: "The reference to 'Christendom' is telling. Hyde spoke to a society of shared social values where marriage and religion wire thought to be inseparable. This is no longer the case. Canada is a pluralistic society" (Same-Sex Reference, supra note 3 at para. 22).

n58 Same-Sex Reference, ibid.

n59 Ibid. at para. 24.

n60 Supra note 47.

n61 Same-Sex Reference, supra note 3 at para. 25.

n62 Ibid. at para. 27.

n63 Ibid.

n64 Ibid. at para. 28.

n65 Anthony Kronman, "Living in the Law" in David Luban, ed., The Ethics ofLawyers (New York: New York University Press, 1994) 835 at 870. IfHabermas is correct, then this view of judicial obligation has deep roots indeed: see Jurgen Habermas, Moral Consciousness and Communicative Action, trans. by Christian Lendhardt eta/. (Cambridge, Mass.: MIT Press, 1990) at 68 ("the justification of norms and commands requires that a real discourse be carried out"), 103 ("only those norms may claim to be valid that could meet with the consent of all affected") and -- especially apposite here --109 (rejecting judgments that are "dissociated from the local conventions and historical coloration of a particular form of life").

n66 According to a poll published by the National Post, 66 percent of Canadians support what the pollsters termed "the traditional defmition of marriage" (Tom Blackwell, "Most want Referendum" National Post (2 February 2005) A1).

n67 Supra notes 42-46 and associated text.

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n68 George Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca: Cornell University Press, 1992) at 207, 211.

n69 Disclosure of both the unintelligibility and the ideology of human dignity and rights, happily, has recently begun. To sample the former, see Timothy Caulfield, "Human Cloning Laws, Human Dignity, and the Poverty of the Policy Making Dialogue" (2003) 4:3 BMC Med. Ethics I; and for the latter, see James Q. Whitman, "On Nazi 'Honour' and the New European 'Dignity"' in Christian Joerges & Navraj Singh Ghaleigh, eds., Darker Legacies ofLaw in Europe: The Shadow ofNational Socialism and Fascism Over Europe and Its Legal Traditions (Oxford: Hart, 2003) 243.

n70 I have explored these matters in more detail elsewhere: see F.C. DeCoste, "Law Transcendent: The Judicial Conquest of Ordinary Lite" (2004) 8:1 The Newman Rambler 1.

n71 I refer to, and the quoted phrase is taken from, Henri de Bracton, De Legibus Et Consuetudinibus Angliae (1220-1230), which is available redacted and in translation in Daniel R. Coquilette, The Anglo-American Legal Heritage (Durham, N.C.: Carolina Academic Press, 1999) 88 at 92.

n72 I mean "abnormal" in the Kuhnian sense of paradigm shifting: see Thomas S. Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: University of Chicago Press, 1970) at esp. c. 8.

n73 Same-Sex Reference, supra note 3 at para. 43.

n74 I have explored the implications of the value-positive view of the constitution at some length in F.C. DeCoste, "The Separation of Powers in Liberal Polity: Vriend v. Alberta" (1999) 44 McGill L.J. 231.

n75 Same-Sex Reference, supra note 3 at para. 22 [emphasis added].

n76 I can here only sketch this relationship. For a more detailed account, see "Transformation," supra note 9 and F.C. DeCoste, "What's the Charter Got to Do With It?" in Daniel Cere & Douglas Farrow, eds., Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment (Montreal & Kingston: McGill-Queens University Press, 2004) 120.

n77 Stuart Hampshire, Innocence and Experience (Cambridge, Mass.: Harvard University Press, 1989) at 68.

n78 There is a rich, and steadily growing, literature devoted to it. See e.g. Jean L. Cohen & Andrew Arato, Civil Society and Political Theory (Cambridge, Mass.: MIT Press, 1992); John Ehrenberg, Civil Society: The Critical History ofAn Idea (New York: New York University Press, 1999); Don E. Eberly, ed., The Essential Civil Society Reader (Lanham, Md.: Rowman & Littlefield Pub., 2000); Simone Chambers & Will Kymlicka, eds., Alternative Conceptions of Civil Society (Princeton: Princeton University Press, 2002); and Nancy L. Rosenblum & Robert C. Post, eds., Civil Society and Government (Princeton: Princeton University Press. 2002).

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n79 The caveat noted earlier-- see supra note 55 -- of course continues to apply here.

n80 In 1563, the Council of Trent adopted the decree Tametsi, which, certain exceptions aside, invalidated marriages that did not take place in the presence of the parish priest of one of the couple and of at least two witnesses. The decree reversed what had been the Church's law since at least the twelfth century, that marriages entered into clandestinely, without ceremony and without the presence of a priest, were valid, even if unlawful. By the sixteenth century, virtually every European state had either adopted the decree Tametsi or promulgated secular legislation to the same effect, to invalidate clandestine marriage.

n81 With this Act, England fmally joined Europe in invalidating clandestine marriage. The Act was replaced in 1873 with a statute that remains in force in England and that, in one fashion or another, is the law in every Anglo-American legal jurisdiction. The lesson of the Act, and its continuing influence, for present purposes, is this: that the Act was intended, by in effect replicating Church law, to support marriage and not to proclaim state sovereignty over it. See R.B . Outhwaite, Clandestine Marriage in England, 1500-1850 (London: Hambledon Press, I 995); Rebecca Probert, "The Judicial Interpretation of Lord Hardwicke's Act 1753" (2002) 23 :2 J. Leg. Hist. 129; Stone, ibid. at 29-34; and John R. Gillis, For Better, For Worse: British Marriages 1600 to the Present (New York: Oxford University Press, 1985) at esp. I 7-31, 88-89.

n82 Supra note 71.

n83 Sir John Fortescue, On the Laws and Governance ofEngland (circa 1470), ed. by Shelley Lockwood (New York: Cambridge University Press, 1997).

n84 Sir Edward Coke, Institutes of the Laws ofEngland (1628, 1642, 1644) (London: W. Clarke & Sons, 1817).

n85 Sir William Blackstone, Commentaries on the Laws ofEngland, (1765-1769) (Chicago: University of Chicago Press, 1979).

n86 Each, rather, deals with the rights and obligations attaching to the status of husband and wife and, in so doing, with the doctrines of unity and consortium that together defmed the nature and content of the marital relationship at conunon law.

n87 The move to definition was a response to judicial occupation with same-sex marriage. This response took shape first in a Conunons motion (see supra note 19) and subsequently in Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd Sess., 36th Parl., 2000, cl. 1.1 [now: Modernization ofBenefits and Obligations Act, S.C. 2000, c. 12, s. 1.1] of which reads as follows: "For greater certainty, the amendments made by this Act do not affect the meaning of the word 'marriage,' that is, the lawful union of one man and one woman to the exclusion of all others."

n88 Supra note 39.

n89 This analysis of Hyde is taken in large part from "Transformation,'' supra note 9 at 623.

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n90 I say "in passing," because, since the matter at issue in Hyde was polygamy and not heterosexuality, the definition, on a strict reading, is obiter as regards the latter.

n91 Hyde, supra note 39 at 133.

n92 Same-Sex Reference, supra note 3 at paras. 21-22.

n93 Hyde, supra note 39 at 133.

n94 Ibid.

n95 Supra note 57.

n96 Same-Sex Reference, supra note 3 at para. 22.

n97 Wrong on the following two counts: first, it is very likely, given the text of the entire judgment in Hyde, that the Court meant by Christendom simply to refer to states kindred to the U.K. because they, like it, are states in the Euro-American legal tradition; second, even were that not the case, the derogatory "sectarian" would be proper only were it applied with discipline and such discipline would preclude its use as regards the Court in Hyde. Regarding the latter, see e.g. Michael J. Perry, Love and Power: The Role ofReligion and Morality in American Politics (New York: Oxford University Press, 1991) at 106 (defining sectarian argument as one that "relies on experiences or premises that have little if any authority beyond the confines of one's own moral or religious community").

n98 Of which Harold Berman's groundbreaking work is the start and the center. See Law and Revolution, supra note 80 and Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Traditions (Cambridge, Mass. : The Belknap Press of Harvard University Press, 2003).

n99 Harold J. Berman, "Religious Foundations of Law in the West: An Historical Investigation" (1983) 1 J. Law & Religion 3 at 41.

nlOO See e.g. Michael J. Perry, Under God? Religious Faith and Liberal Democracy (New York: Cambridge University Press, 2003); Christopher L. Eisgruber & Lawrence Sager, "Religious Liberty and the Moral Structure of Constitutional Rights" (2000) 6:3 Legal Theory 253; J.P. Day, "Collective Liberty and Religious Liberty" (1986) 23 American Philosophical Q. 243; and especially, Emmanuel Levinas, "Reflections on the Philosophy ofHitlerism" (1990) 17 Critical Inquiry 62 (trans. by Sean Hand).

nlOl In the cause of abundant caution, I should add that these claims are made with Hartian modesty in the sense that they arise from "reflection on some very obvious generalizations-- indeed truisms-- concerning human nature and the world in which men live ... as long as these hold good." See H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 188.

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ni02 See e.g. Philip T. Neisser, "The Will to Harmony and the Pursuit ofFamily" (1994) 20:3 Social Theory & Practice 253.

ni03 See e.g. Jennifer Roback Morse, "No Families, No Freedom: Human Flourishing in a Free Society" (I999) I6: I Social Philosophy & Policy 290.

ni04 I take the ideal/ideals distinction from Fishkin. See James S. Fishkin, Justice, Equal Opportunity, and the Family (New Haven: Yale University Press, I983) (arguing for a "limited liberalism," which offers conflicting principles without any single vision of the just society).

ni05 Supra Part II.D.

ni06 Anne M. Cohler, Basia Carolyn Miller & Harold Samuel Stone, eds., Montesquieu: The Spirit of the Laws (Cambridge: Cambridge University Press, I989) at I 55 (Book XI, c. 4).

ni07 Ibid. at 63 (Book V, c. I4).

ni 08 Ibid. at I87 (Book XII, c. I).

ni 09 !d. at I 57 (Book XI, c. 6).

niiO !d. at I64 (Book XI, c. 6).

niii Ibid. at I82 (Book XI, c. IS).

nii2 Same-Sex Reference, supra note 3 at para. 22.

nii3 Ibid. at para. 23.

nii4 Ibid. at para. 46.

nii5 This perception is proper for a variety of reasons, one of which is especially prominent, namely, that Western states have acted as regards to religion so as to contain and to diminish religious freedom. See e.g. Julien Taieb, "Freedom of Religion: from France to the United States, a National Conflict of Law" (2004) 4:3 Global Jurist Advances I; and Richard W. Garnett, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine" (2004) 51 UCLA L. Rev. 1645.

nii6 Same-Sex Reference, supra note 3 at paras. 58 (freedom of religion subject to "exceptional circumstances which we cannot at present foresee") and 60 (subject to "unique circumstances with respect to which we will not speculate").

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nii7 Ibid. at paras. 24-28.

nii8 Ibid. at paras. 45-46.

nii9 Ibid. at para. 47.

ni20 Ibid. at para. 48.

ni2I Ibid. at para. 51.

ni22 For just such a view-- there of the state from the perspective of faith-- see David Fergusson, Church, State and Civil Society (New York: Cambridge University Press, 2004).

ni23 Foreign Affairs Minister Pettigrew recently rendered this with crude and cruel candour: see Elizabeth Thompson & Anne Dawson, "Church told to butt out: same-sex debate no place for religion: Pettigrew" National Post (28 January 2005) AI.

ni24 See e.g. "Calling Parliament's Bluff," Editorial, National Post (IO December 2004) A23; Andrew Coyne, "True to the Charter" National Post (II December 2004) A24; and "How Deferential is the Supreme Court?," Editorial, Globe & Mail (24 January, 2005) AI2.

nl25 For a splendid book-length exploration of this precept of civilized life, see Avishai Margalit, The Decent Society (Cambridge, Mass.: Harvard University Press, I996).

ni26 Hampshire (supra note 77 at 72) captures this perfectly: "When justice needs to be enforced and is enforced, the scene is not one of harmony; some ambitions are frustrated. A barrier is erected, an impossibility declared."

nl27 For an exploration of the effects of equality jurisprudence along these lines, see Deborah L. Brake, "When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law" (2004) 46 Wm. &MaryL. Rev. 513.

ni28 See Department of Justice Canada, "Frequently Asked Questions-- Civil Marriage Act" (I February 2005), online: Government of Canada <http://canada.justice.gc.ca/en/news/nr/2005/doc_3I378.html>.

ni29 John lvison, "Rights crusade continues apace" National Post (2 February 2005) AI. This has been the only report on the Minister's comments on tabling the Bill that I have been able to uncover. Neither the Department of Justice's Web site, nor the Web site of the Parliament of Canada, so far offers the text.

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nl30 After a lengthy, ten-part preamble, and excluding a short title provision (s. 1), the Bill consists of fourteen sections, the first three of which concern the re-definition of marriage and the remainder of which concern what the Bill terms (as it turns out modestly) "consequential amendments" to a number of other statutes. The re-definition sections read as follows:

2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. 4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex. Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil pwposes, 1st Sess., 38th Pari., 2005, cls. 2-4. n131 Department of Justice Canada, "Background- Civil Marriage Act" (1 February 2005), online: Government of Canada <http :II canada.justice.gc.ca/enlnewslnrl2 00 51 doc_313 7 6.html>.

n132 Ibid.

n133 "Legal parent replaces "natural parent" in various sections of the Income Tax Act, R.S.C. 1985, c. 1-1, (5th Supp.), as amended. Supra note 130, cl. 10-12.

n134 Ibid., cl. 5. Section 5 of the Bill makes work this replacement in the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, and s. 6 does the same as regards the Canada Cooperatives Act, S.C. 1998, c. 1, as amended.

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