By Ted Morton

The first casualty of the Ontario gay-marriage ruling is truth. The second is Canadian democracy. Let us begin with the deceptions being spun out to justify the decision to beleaguered Canadians:

* "The judges are just enforcing what the Charter requires." This is the mother of all whoppers. Sexual orientation/gay rights is not in the Charter. Attempts to place it in the Charter were rejected by those who framed the Charter. Sexual orientation was not in the 1987 Meech Lake Accord nor the 1992 Charlottetown Accord. The idea of constitutionally enforceable gay rights is judge-made law from start to finish.

* "The judges are just adapting the meaning of the Charter to changing public opinion towards homosexuality." Sensing the vulnerability of Lie Number One, this is a popular fall-back position. It is just as false as the first. The courts are actively trying to change public opinion, not reflect it.

* "Judges must decide issues like this to fill the legislative void created by timid politicians who avoid political controversies." In none of the examples used by 'Court Party' apologists -- abortion, gay rights, marijuana legalization -- is there a legislative void. In each case there is a law. These laws are often the rather untidy compromises typical of divided public opinion that legislatures reflect. It is not the "legislative void" that prompts judicial intervention. It is the judges' impatience with the refusal of legislatures to accept the "rights claims" of advocacy groups.

* "The courts make legal decisions, not political decisions." This is a variation on the whopper and was trotted out in a timely manner by the current Chief Justice of Canada in the midst of the court-ordered gay-marriage circus in Toronto. The Chief Justice's defence that Charter interpretation is "high level, specialized, intellectual work" cannot hide the fact that Charter litigation has become a standard interest-group tactic and that rights-advocacy groups expend considerable resources to influence how judges "interpret" the Charter.

* "When courts strike down a law, they are not dictating public policy to legislatures but rather engaging in dialogue between judges and legislatures." Presumably, the Ontario Court of Appeal ruling will mean the end of this defence. Unlike the other appeal courts that suspended their rulings to give Parliament time to consider an appeal or a legislative response, the Toronto Troika ordered their newly fabricated gay-marriage law to take effect immediately. This unprecedented act of judicial imperialism was clearly intended to pre-empt any meaningful legislative response. Its scorn for parliamentary input is only heightened by the fact that it came just as the House of Commons Justice Committee was preparing its report on same-sex marriage after months of public consultation. Who could possibly resurrect the "dialogue" defence after this high-handed display of judicial contempt for Parliament's (and by extension, the public's) views on this issue?

Even admitting that politics is the art of the half-truth, these misrepresentations are stunning in their breadth and scope, and present a sorry commentary on the state of democracy in this country. Canada may be the third country in the world to adopt gay marriage, but we are the only one to do so because of the decisions of unelected judges. There are four principal culprits in this attack on Canadian democracy.

Culprit number one is the judges and their apologists in the academy and the legal profession. Intoxicated by the power and status of their new self-made roles as Platonic philosopher-kings and social reformers, our judicial elites have abandoned any pretense of neutrality between competing social interests in Canadian society. Our appeal court judges have turned a citizens' constitution into a victims' constitution, under which equality trumps liberty and the ends always justify the means.

Culprit number two is the Liberal government of Jean Chrétien, which appoints all appeal court judges, forks over millions of taxpayer dollars to groups like EGALE and LEAF to pay their litigation costs, and then rolls over and plays dead every time a court strikes down a federal policy. It was bad enough when the PM and his various justice ministers copped the "Charter-made-us-do-it" excuse every time the Supreme Court struck down a law. Now they abdicate their responsibilities for "responsible government" when three judicial nobodies on a provincial court of appeal crack the Charter whip.

So why is the tail wagging the dog? Because the dog wants it that way. The Chrétien government enjoys being ordered around by the judges. It allows the Liberals to make policy-side payments to the Trudeau wing on the Party ( NDs with more ambition than principle) without having to take responsibility for it at the next election. So Canadians must submit to a growing list of new public policies -- gay marriage, marijuana legalization, prisoner voting, and on and on -- without anyone being accountable.

Culprit number three are the wimpy provincial premiers who, like beaten dogs, just keep taking it. Don't they realize that they are the protectors of the long and honourable Canadian tradition of community self-government that federalism was intended to protect and promote? The judicial policy-vetoes issuing from the Supreme Court's today are no different than the edicts of disallowance that the federal cabinet used to try to impose on provinces. Indeed, the new Charter-based power of the Supreme Court is little more than "disallowance in disguise" -- thinly veiled as a legal rather than a political act.

The successful battle against federal disallowance was led by Ontario Premier Oliver Mowat. He pointed out that if a dissatisfied provincial minority can run off to their political allies in Ottawa every time they lose a policy vote in the provincial legislature and have it reversed, "responsible government is at an end."

"Who shall govern the province," Mowat thundered, "the majority or the minority?" Why are today's provincial premiers afraid to defend their own people's right to self-government?

The fourth and final culprits in democracy's demise are the identity-politics groups, the new breed of political activists who define politics based on race, gender, sexual orientation, and so on. Their answer to Oliver Mowat's rhetorical question is unequivocal: the minority. This is what makes gay and feminist politics more dangerous than their policies. Their commitment to democracy is conditional. The majority may govern so long as they adopt the "right" policy. But if they don't, forget it.

The constant escalation of policy demands into rights claims is driven by a politics of moral imperatives that demonizes any opposition. Normal policy disagreements are turned into pitched battles between good and evil. To oppose any of their policy claims is deemed to be proof that you hate the members of the group. If you oppose a gay claim, you are homophobic. If you oppose an aboriginal claim, you are racist. If you oppose a feminist claim, you are sexist. Despite the patent absurdity of such accusations, they have been used successfully to stigmatize and silence opposition.

Liberal democracy cannot long survive under these conditions. A conditional commitment to democracy is no commitment in the long run. Rather than have governments that are accountable to their citizens, we are moving towards a new political regime in which the citizens are accountable to their governments. This is not a uniquely Canadian disease. The post-Marxist Left -- the new Egalitarians -- are busy in all Western democracies trying to shift political power to non-accountable institutions: publicly funded "stakeholder" groups, courts, administrative tribunals and international bodies.

But it is our misfortune in Canada to be further along this path than any other Western democracy. The Ontario gay-marriage ruling and the Liberals' acquiescence in it is the most recent marker in the decline of democracy in this country.

Ted Morton is a professor of political science at the University of Calgary. He is the co-author of the award-winning book, The Charter Revolution and the Court Party (Broadview, 2000).