Quote:
Originally posted by troutman@Sep 16 2004, 04:24 PM
Marriage is not an individual right, it's a specific type of contract available to a man and a woman who agree to enter into that contract. If marriage is a right under the constitution, then we should have a lot of single, 40-year-old losers going to the courts to demand that right be upheld, even though they can't find someone willing to marry them.
Faulty logic. Does not compute. The 40-year-old-loser is different; he has no-one willing to enter into a marraige with him. Two gay people willing to enter into a marriage is totally different.
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Maybe I'll come up with a more useful illustration, because I'll admit that my previous analogy (single loser) sounds ridiculous. The point of that, as I'll demonstrate below, is that we Canadians have been conditioned to believe that anytime someone tells us we can't do something, it's somehow a violation of a fundamental right. In this case, it's not.
Starting from the constitution:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Every consenting adult has the right to marry another person of the opposite sex, and to receive the benefits resulting from that decision. This doesn't say that one is entitled to be married, however, if the conditions for a marriage to happen can't be produced. As an analogy of this legal consideration --
NOT the moral considerations, which I don't believe are a problem -- consider the case of a redneck who wants to marry his cousin. By law, this man and woman can't be married...but you'll never hear the courts say it's a violation of their rights. It's simply a restriction that society has placed on the marriage contract. Now, you'll argue that we prohibit cousins from marrying because of the possible genetic issues with their children. We have decided, as a society, that it's a justifiable violation of their right to marry based on the better good of society and their unborn mutant-children. Agreed.
Well how about polygamy? I'm not familiar with any case law relating to this, but if it can be successfully argued that the requirement of a "man and a woman" can be overturned, as we're seeing in many provinces, why can't the other significant condition -- "to the exclusion of all others" -- be overturned? It sounds like a pretty arbitrary distinction to say that marriage can only occur between two people when you've got 3 or more consenting adults who want to live as man and wife...and wife. How is this a justifiable violation of their individual rights? In this case, it's an
arbitrary decision by our society that polygamy doesn't fit within our definition of marriage. We made a similar arbitrary distinction many centuries ago that marriage is a man and a woman...and aside from a few gay people trying to change that definition right now, Canadians still feel that you should be able to find a husband and a wife in what is called a "marriage."
So to sum up...
I'm not really arguing that 2 people should be denied the right to all the legal benefits and responsibilities that come with marriage; in fact, I would support a "civil union" type of thing. I'm just tired of people trying to use the Charter of Rights to change the ancient definition of marriage. The charter right to equality does not entitle one to marry anyone under any circumstances. I've illustrated that with my two examples above.
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I dunno why I bother arguing though anymore. Most people don't care about the fact that our unelected judges are re-writing the law. :wacko: