David Frum April 14th, 1998 at 12:00 am
Time to change the name of Section 33 of the Charter of Rights & Freedoms: from the ‘notwithstanding clause’ to the ‘do nothing clause.’ On Thursday, Alberta Premier Ralph Klein announced to his Tory caucus he would not be invoking the
clause in the Vriend case. The Supreme Court of Canada’s order to write homosexuals into Alberta’s list of specially protected classes of citizens would stand.
Vriend is only the latest in a long series of triumphs for the gay rights movement. These triumphs have wrought a radical transformation of our law and society. In 1983, Canada’s definition of what constitutes a family was essentially the same as it had been in 1883; 15 years later, our old concept has been smashed and an entirely new one substituted.
As to whether these changes are for good or evil, we all have our opinions. But with regard to one aspect of these changes, there can be no disagreement. To an absolutely amazing extent, this revolution in one of the most fundamental domains of law — this sudden, radical upheaval in our most basic unit of social organization — has been effected with scarcely any democratic sanction whatsoever.
The gay rights revolution has been imposed by judges and bureaucrats, with scarcely a nod from elected legislators or voters. Politicians, whose survival depends on reading the public’s mind, do their utmost to avoid voting on the issue and on one of the rare occasions when they were not able to escape — the vote in the Ontario legislature on Bob Rae’s gay rights bill in 1994 — they voted No.
So how could Vriend — and the long line of gay rights victories leading up to it – have happened? How can it be the majority keeps losing? How can the courts carry out so radical a social revolution, with scarcely even an ‘is that all
right with you?’
Klein’s behavior in the Vriend matter tells us how. Canada is a country whose representative institutions do not work very well. Our parliamentary system of government vests immense power in the cabinet and inflicts severe punishments on any backbencher who breaks ranks. In the U.S., ordinary people can make their voices heard by writing to their congressmen. In Canada, writing to your member of Parliament on a public issue is usually a waste of time. What can he do?
Which is not to say government cannot be swayed. Of course it can. But it can only be swayed by interest groups powerful enough to reach not a few lowly MPs, but the cabinet officers or the premier or prime minister himself. In practice, that means interest groups can only muster influence if they either (a) have a great deal of money or (b) command the attention and sympathy of the media. Banks, labor unions and so on fall into the first category; gays and aboriginals fall into the second.
With media influence counting for so much and public opinion counting for so little, the leaders of all our parties tend to end up sounding very much like one another. On issues that would have been bitterly contentious in a more
democratic polity — the death penalty, bilingualism, immigration, abortion and now gay rights — we in Canada have again and again seen all our political parties take virtually the same position. Ours is a country in which it seems
there is always one side to every question. Real political competition has effectively been stifled.
So that’s why Klein knuckles under to Vriend. Resisting would earn him bad press; surrender gets him good press. Resisting would have been controversial; surrender is (at least in the short run) politically riskless. After all, what are the discontented majority of Alberta going to do? Vote for somebody else? Who? The leaders of the second and third parties would have done exactly what he did. The voters have about as much real choice as car buyers did in the days
before Japanese imports.
The gay rights revolution is, in my view, ominous enough. But the way in which it has been achieved — the connivance between politicians and unelected judges to thwart majority will and impose the political preferences of a tiny,
unrepresentative faction on a society without the means to express its actual preferences — exposes a dangerous deformity in our democracy.
Originally published in The Financial Post.