By Bruce E. Walker

It has been said that the price of freedom is eternal vigilance. Same-sex marriage is the issue of the moment. We now have the religious right and the Roman Catholic Church joining forces in condemnation. Their campaign, now that they have lost the abortion issue, promises to be loud and vindictive. Make no mistake, by attempting to influence Members of Parliament; it is the Canadian Charter of Rights and Freedoms of the Constitution Act, 1982 that is under attack.

Why same-sex marriage would bring about such vehemence is hard to understand. None of the various religious denominations is being required to marry anyone they do not wish to marry. The guarantee of freedom of religion in the Canadian Charter of Rights and Freedoms is not being touched. The attack by the religious right and the Roman Catholic Church is against Section Fifteen, which is the section guaranteeing Equality Rights for all Canadians. This section actually states: 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.

The Courts have gone on to recognize sexual orientation as an analogous ground having the right to equal protection and equal benefit of the law without discrimination. At this time the Court of Appeal for Ontario and the Court of Appeal for British Columbia have each heard similar cases and have ruled that refusal by these two provinces to issue marriage licenses and solemnize the marriages of same-sex couples is in violation of Section Fifteen of the Canadian Charter of Rights and Freedoms. The remedy prescribed in both of these Courts was that same-sex couples in both Ontario and British Columbia could marry immediately.

These rulings, and the fact that a great number of same-sex couples are getting married, has sparked an unholy howl from those claiming to be religious. Their rhetoric appears to say that there has been little opposition to same-sex marriage up until they got involved and that their arguments have not been heard. This is not the case. While their arguments may not have been heard at the higher decibel levels, all of their points of view have been aired a number of times in a number of ways. The fact is, they lost. They lost so completely that the Government of Canada, the Province of Ontario, and the Province of British Columbia has decided not to appeal these rulings because they would lose again in the Supreme Court of Canada.

In its wisdom, the Government of Canada has decided to proceed to the Supreme Court of Canada by way of reference. This is a means by which the Government of Canada can ask the opinion of the Supreme Court of Canada on certain questions posed. It is likely the Supreme Court of Canada will endorse same-sex marriage. If they do that, Parliament will have the choice of accepting same-sex marriage or not. Should Parliament decide not to accept same-sex marriage the question will clog the courts and be a major budget expenditure to the governments of the remaining provinces for some years to come.

Otherwise, Parliament and the provinces could decide to use the amending formula to amend the Constitution of Canada. This is where it gets interesting. It is hard to imagine that of all great matters of state that should take up our governmentıs time and energy, there would be such an agreement of opinion that the Constitution of Canada could be amended to change Section Fifteen of the Charter. If Section Fifteen is amended on such a question that is actually irrelevant to the lives of many Canadians, but vital to some, then what else goes? How about pay equity for women? There are still some who are not comfortable with emancipation for women or native people. For those who think it can't happen here, just look at what happened in Germany in the earlier part of the last century.

Germany in the 1920's was a very enlightened place. Berlin was just as free as Toronto is now. There was a flourishing homosexual culture there. Berlin was a world center for all kinds of lesbian and gay organizations and groups. One of them was Dr. Magnus Hirschfield's Institute of Sexual Science, which was a world center for enlightened research about homosexuality. They conducted studies, offered seminars, held discussion groups, and provided scholars and the public a library of more than ten thousand priceless volumes covering the history, psychology, physiology, spirituality and biographies of many lesbian and gay people. Gays and Lesbians began to feel fully accepted in society and after a decade of liberation no-one took the political warnings seriously.

Well, as we now know, Adolph Hitler was named Chancellor of Germany on January 30, 1933, and took absolute power in Germany on February 27, 1933, after burning the Reichstag and blaming the communists. On May 6, 1933, Magnus Hirschfield's Institute of Sexual Science was demolished and the irreplaceable library was burned book by book in a huge bonfire. The arrest and imprisonment of homosexuals began almost immediately thereafter. As we also know, after perfecting their methodology on homosexuals, the Nazis turned their attention to the Jews. We now know, also, that the Roman Catholic Church was not without sin in their dealings with the Nazis.

It is also interesting to examine what is meant by those who say they adhere to the traditional definition of marriage of one man and one woman. Because the two individuals who are currently championing this rallying cry are the heads of two large institutions, the Pope of the Roman Catholic Church and the President of the United States of America, it is not hard to imagine that they are merely saying they wish to maintain the status quo. However, the status quo they are speaking to is the outmoded, patriarchal, male-dominated old boys' system.

Discrimination is discrimination. It has been well demonstrated in the courts in Canada that denying marriage to same-sex couples is discrimination. The choice is clear. Either you believe in the Constitution of Canada and the Canadian Charter of Rights and Freedoms, or you believe in discrimination. If Canadians let others misuse political power to usurp the role Parliament prescribed for our courts to dictate how to constitute our state then the experiment in democracy and equality that has made Canada the most desirable place to live in the world will be over. History has shown that the end starts with discrimination against homosexuals, but then quickly moves to others. Perhaps one of the others would be those who currently enjoy freedom of religion as guaranteed under the Canadian Charter of Rights and Freedoms.

Bruce Walker heads the Bruce E. Walker Law Office and is a long-time advocate for equality. Last year he celebrated his 25th anniversary with spouse Lloyd Simmons. They will marry this month at the Metropolitan Community Church of Toronto. The couple are founders of the Roy Thomson Hall Christmas Eve service, held each year in Toronto: Canada's largest Christmas Eve observance.