Institute for Public Affairs of Montreal
The Marriage Reference

Illiberal Democracy
Beryl P. Wajsman 12 December 2004  

“A fig for those by law protected,

Liberty’s a glorious feast;

Courts for cowards were erected,

Churches built to please the priest.”


~Robert Burns



The same-sex marriage reference, and the political pandering that surrounded it, have brought into stark relief the compromise of Canada’s constitutional liberalism and the lack of fidelity to protecting  individual prerogative by politicians pimping for cheap vote grabs.


Trudeau’s purpose with the Charter of Rights and Freedoms was to enshrine the supremacy of  individual rights against any forms of discrimination by the state  or demands of particularity by a collective. Too often this purpose has been twisted by “progressives” who insist that it created new classes of group rights. It was never meant to do that.


Very few historical truths have stood the test of time and crises. But one of the few has been that those societies that entrenched, as “foundational principles”, respect for the sanctity of the individual, ipso facto protected the rights of collectivities. The reverse has never been true. One man’s “collective rights” is another’s “right to kill”.


As Trudeau said so often “It is no small matter to know whether we are going to live in a society in which personal rights, individual rights, take precedence over collective rights. When collective rights take precedence over individual freedoms we cannot claim to live freely.”


It matters not if a citizen wants to have carnal knowledge of a McCormick Reaper. His choices are protected from discrimination by the state and the services it offers. But this does not mean that there are thereby created a new body of group rights based on sexual proclivity that every individual must accept within their personal individual lives. The state cannot refuse pension rights to a cross-dresser for example, but no citizen should be forced to hire one in an office if he does not want to.


To demand that the state enforce same-sex marriage equality, as opposed to civil union equity, implicitly ranks sexual preference on a par with the classic freedoms of constitutional liberalism, namely those of thought, expression and assembly. As a proposition it is simply perverse and nothing but transparent political pandering.


One of the basic building blocks of western liberalism is the notion, best expressed by James Madison, that “The civil administration should take no cognizance of religion.” The separation of church and state must be absolute. Government should not be involved in validating an estate of religion. The French “modèle républican”, with all its faults, should be considered as a standard.


The only role for the state in a union between any two people is strictly to interpret the “contract” between them and the rights flowing from that. The basis of contract law as the fundamental construct for the interpretation of relations between governors and governed has been primordial since Magna Carta. “Marriage” is a concept of faith and any demands by citizens to bring such faith-based estates to an equal level in law should be considered illegitimate. We will soon be facing another such challenge in the growing demands for sha’riah courts to be recognized as mediation tribunals.


Post-war  progressive legal traditions in the west were actually in the process of rolling back the state’s role in “marriage” until the wave of politically correct attitudes of the past decade. Gay rights taken this far, as other demands for collective rights, do damage to the development of a society based on constitutional liberty and create what Fareed Zakaria has called “illiberal democracy” with the state intruding into every corner of our lives.