© 2003 Karen Selick

An edited version of this article first appeared in the June 25, 2003 issue of The Globe and Mail.  If you wish to reproduce this article, click here for copyright info.


Same-Sex Alert--Too Much Dignity Is a Dangerous Thing

Last week, Prime Minister Chretien promised to prepare draft legislation permitting same-sex marriages, submit it to the Supreme Court of Canada over the summer for approval, then put it to a free vote in the House of Commons by fall.

Obviously, Mr. Chretien believes the Supreme Court will rubber-stamp his bill promptly.  He has good reason to expect this. When the Ontario Court of Appeal kicked off the recent frenzy by legalizing gay marriages, it was merely following a path clearly marked out by the Supreme Court in recent years.  

However, even those who don’t care (as I don’t) whether gay and lesbian couples marry should still find reason to be alarmed if they value objectivity and consistency in the law.  The Court of Appeal decision, and the precedents from which it stems, are based on reasoning which is subjective, vague and arbitrary.

According to the Court of Appeal, "The question at the heart of this appeal is whether excluding same-sex couples from…marriage infringes human dignity and violates the Canadian Constitution."  

It’s the part about "human dignity" that should trigger the alarm bells.  That phrase appears 17 times throughout the decision.  In fact, the court stated--as the Supreme Court of Canada has previously—that one of the tests for unconstitutional discrimination under the Charter of Rights is whether someone’s human dignity would be adversely affected.  Some cases have even held that it’s okay for a particular law to discriminate on the basis of an expressly prohibited ground under the Charter, so long as the discriminatory law doesn’t violate human dignity.  

"Human dignity" has thus become virtually the be-all and end-all of Canadian justice.  

What’s the justification for this?  Canada’s Charter of Rights doesn’t contain the phrase "human dignity".  That expression isn’t in the constitution at all.  The words "human" and "dignity" don’t even appear there separately.  
Nor was human dignity a matter of concern to Canadian courts historically.  In the first 109 years of Canada’s existence, the Supreme Court of Canada never used the phrase in its judgments once.  It appeared for the first time in a 1977 case, then vanished for another 8 years.  Since 1985, however, 81 Supreme Court cases have mentioned human dignity, and the phrase has been dutifully echoed by lower courts innumerable times.

Why would anyone object to the courts employing a motherhood-and-apple-pie concept like human dignity?  The main reason is that one person’s notion of human dignity can be drastically different from another’s.  

For instance, there’s a segment of the gay and lesbian community that finds the spectacle of their cohorts chasing recognition by heterosexuals through court after court to be flagrantly undignified.  I know, because I’ve heard from some of them when I’ve written on this subject before.   

One lesbian woman phoned me after she had been ordered by a court to pay support to her former female partner under Ontario’s Family Law Act.  The court had said it was a violation of human dignity to exclude same-sex spouses from the "benefit" of spousal support legislation.  The woman on the phone, however, thought it was a violation of her dignity to have the burden of spousal support legislation thrust unwillingly upon her, when it had not been the law at the start of her relationship and she might well have conducted her life differently if it had.

The subjectivity and arbitrariness of human dignity as a criterion for constitutionality is visible in other cases, too, not just those involving homosexuals.  In 1999, the Supreme Court denied a 30-year-old widow CPP survivor’s benefits because she hadn’t reached age 45.  The court acknowledged that the legislation treated her differently on the ground of age, contrary to the  Charter.  However, it said the law didn’t violate her human dignity because it wasn’t written in a way that would make her feel "less worthy of recognition or value."  Hence, it was not an unconstitutional form of discrimination.

Although an age restriction on CPP survivor’s benefits could easily have been justified under another section of the Charter, the court chose to decide the case based on the  arbitrary "human dignity" rationale.  Meanwhile, the young widow and her lawyers had persevered all the way to the Supreme Court of Canada.  No doubt they were aware of the 14 preceding years’ case law on the subject of human dignity.  Apparently, they must have felt that the CPP age limit treated her as "less worthy of recognition or value" or they wouldn’t have pursued it so diligently.  So what makes nine Supreme Court judges’ opinions on this point more valid than the opinion of the widow and her lawyers?  Are judges’ viewpoints more worthy of recognition than other people’s?

Equally disturbing, however, is the notion apparently held in common by the widow, her lawyers and the Supreme Court that if the court had indeed found her human dignity to have been violated, the way to restore it would be by permitting her to sup at the public trough.  Similarly, the court had held that the way to restore the lesbian support-seeker’s dignity was to grant her the status of being someone else’s financial ward and giving her someone else’s money.  

These are pretty funny notions of dignity, if you ask me.  I always thought dignity embraced traits such as independence and self-reliance—that the person who scraped by on his own meagre resources was more dignified than the person who either begged for or demanded money from others.

I also thought dignity was something that came from within ("inherent nobility and worth", as one dictionary defined it), not something that could be bestowed from without.  

Others may find my idea of dignity peculiar.  But that’s precisely the reason why we should toss the concept permanently out of the judicial toolbox.  

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September 22, 2003