In 2003, the chief appellate court of the province of Ontario unanimously ruled that the common law definition of marriage in force in Canada ("one man and one woman") was unconstitutional, as it violated the equality guarantees of Canada's Charter of Rights and Freedoms (an amendment to the Canadian constitution, somewhat analogous to the U.S. Bill of Rights, but passed only in 1982). The Ontario decision followed similar provincial court decisions in British Columbia and Quebec. While the British Columbia and Quebec decisions struck down the old law, a standard practice in findings of unconstitutionality, the Ontario court went further: it decreed that Ontario's marriage laws must be immediately rewritten to include homosexual couples. With uncharacteristic alacrity, Toronto City Hall began issuing same-sex marriage licenses that very afternoon: five hours elapsed between the court's decision and the first gay wedding at City Hall, and Ontario instantly became a magnet for gay couples seeking to "marry." The decision made international headlines as a major victory for gay activists. But that was only the beginning. The subsequent federal government response and ensuing public debate revealed that religious liberty itself is under attack in Canada. Indeed, the fracas over gay marriage has underscored that a totalitarian impulse has infected the Canadian body politic. "Totalitarian" is, admittedly, a hard word, but I believe it is required in this instance.
In response to the Ontario ruling, the federal government of then Prime Minister Jean Chretien (supported by his successor, Paul Martin) decided not to appeal the decision to the Supreme Court of Canada. Instead it introduced legislation that would amend the definition of marriage in line with the court directive, with a clause that would specifically exempt clergy from having to solemnize gay unions. Having chosen thus to embrace gay marriage, the federal government then referred the proposed law to the Supreme Court. (Canadian law allows the federal government to ask the Supreme Court for its opinion on proposed legislation.) The government specifically asked the Court whether the proposed clergy exemption was compatible with the Charter of Rights and Freedoms.
The reference question is deeply worrisome. It is widely expected that the Supreme Court will approve the exemption for clergy--though one can never be sure. But the fact that the question is even being asked is an ominous portent. The Canadian federal government has asked the chief judicial authority whether a bill which exempts religion's blessings of marriage from government redefinition is constitutional. One would hope that the question need not even be asked. Yet so advanced is the totalitarian impulse in Canada that advocates of the federal redefinition of marriage positively boast of how broad-minded they are in allowing churches to administer their own sacraments as they see fit.
The freedom of churches to administer the sacraments is as fundamental a religious liberty as there can be. That freedom is not granted by statute, for the freedom is not the state's to grant. Does...