Anything goes now

By  Ian Hunter, Catholic Register Special
  • January 29, 2007

Five-year-old D. — in the brave new world parlance of the Ontario Court of Appeal — has "two mums." He has three parents: B., his biological father; C., his birth mother; and A., his mother's lesbian partner. Two parents are enough for most of us, sometimes more than enough; but thanks to the wisdom of our judges, D. now has three parents.

There are two procedural points worth noting about this decision, which made headlines across Canada after it was released Jan. 2. First, the Ontario Liberals emulated their federal counterparts when in office by not intervening to defend the validity of their own legislation (the Children's Law Reform Act). So the court had to appoint an amicus curiae, a friend of the court, to do so.

When a government cannot rouse itself in defence of its own legislation, it is not much challenge to judicial ingenuity to find "legislative gaps."

Second: this was not a Charter of Rights decision. The Ontario Court specifically declined the applicant's invitation to fill the newly found "legislative gaps" by relying on the equality provisions of the charter. For small mercies, one must be grateful, although this is a postponement not a reprieve. The judgment makes it clear that in future the charter will have "broad implications beyond the facts of this case."

In other words, you don't need the charter to get to two mums and three parents; the charter can be held in reserve, presumably for parenting by committee.

To those earnest e-mailers who ask "What's next?" I reply: "Your question is just about two decades late." Once you give courts the authority to drain words like "marriage," "mother," "father," etc., of any natural meaning, once words have come to mean whatever postmodern judges say they mean, then anything is next.

The formula, after all, is in place and it's pretty simple: shout discrimination loudly enough; play the media convincingly enough; line up rent-a-crowd supporters assiduously enough; then put your case before sympathetic judges. Forget about elected members of Parliament. They don't matter.

In its decision the Ontario Court of Appeal quoted approvingly from an affidavit of a 12-year-old: "It would help if the government and the law recognized that I have two mums. It would help more people to understand. It would make my life easier. I want my family to be accepted and included, just like everybody else's family."

This is judicial analysis? Hillary Clinton fatuously claimed that "it takes a village" to raise a child; in Canada it takes a court to tell us who his parents are.

While it's bootless to speculate about what's next, the judge of the original trial which dismissed the application, Justice David Aston, hinted at some possibilities: "If this application is granted, it seems to me that the door is wide to step-parents, extended family and others to claim parental status. If a child can have three parents, why not four or six or a dozen?"

Given the postmodern mindset, why not indeed? Everything is negotiable, everything's on the table. Toss "marriage" out the window, say anyone can be a "parent," mix in the new reproductive technologies (one source of what the Court of Appeal called "legislative gaps") and then hand it all over to judges.

In olden day a glimpse of propinquity,
Was looked upon as good for stability,
Now Heaven knows
Anything goes.

Some objectors have publicly suggested that the decision be appealed to the Supreme Court of Canada. This is a non-starter. The judges of the Supreme Court, as currently constituted, are no less — the common term is "liberal" but I should say contemptuous of history and tradition — than their cousins on Courts of Appeal.

It is futile to speculate what the courts will give us next, but it does make sense to think about how to respond.

Broadly speaking, I think there are two responses. Some people will applaud the decision. Others will consider it perverse or repugnant to common sense, but they will soon learn to live with it. Before long it will be part of the "Canadian values" that we send our troops to Afghanistan to fight for.

But there remains a minority, a remnant is perhaps the better term, for whom the decision will raise afresh the question that Christian philosopher Francis Schaeffer asked three decades ago: "How shall we then live?"

These are the people who are not prepared to order their lives according to judicial fiat, but rather according to the precepts of the Judeo-Christian civilization of which they can faintly recall once being a part.

If they are to hold on, and hold out, such people will need to find a spiritual sanctuary, a church that has not bowed the knee to modernity, one that is the unashamed repository of teachings and traditions that date back to another King.

(Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario in London, Ont.)

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