Friday, October 10, 2003
by Claire Hoy

For a man who has gained considerable fame and fortune fighting both government and court decisions, celebrity civil rights lawyer Clayton Ruby has an odd idea about justice.Writing in the National Post this week, Mr. Ruby launched a full-frontal attack against the Association for Marriage and the Family in Ontario and the Interfaith Coalition on Marriage and Family for being "sore losers" because they dared ask the Supreme Court of Canada to allow them to appeal an Ontario court decision last June allowing same-sex couples to marry.

On Wednesday, without offering a reason, the Supreme potentates denied their request, hardly surprising, since this was the court which originally ignored the wishes of our elected representatives and "read in" -- legalese for "invented" -- homosexual rights under the Charter of Rights and Freedoms.

Since the federal Liberals won't appeal the Ontario court edict, the groups had asked for legal status, arguing that since they had intervenor status in the previous cases, they should be able to appeal the rulings to the Supreme Court.

This is separate from Ottawa's referral of its draft bill legalizing same-sex marriages, a move the Liberals hope will make their law bulletproof from further legal challenges if, as expected, the activist Supremes say it is constitutional.

There is nothing unusual in any of this judicial wrangling. Indeed, Mr. Ruby has spent much of his long career in the courts representing his favourite issues and clients, the same thing he condemns the faith-based groups for doing.This is what lawyers do. Yet Mr. Ruby writes they "should not now be allowed to subvert both the legal and political processes by hijacking the Supreme Court reference in order to undermine a legitimate government policy decision, just because they disagree with it."

Let's be clear. On the one hand, it is legitimate for Mr. Ruby and his fellow travellers to use both the political system and the courts to change laws that they disagree with, but no such privileges should be given to those people who disagree with decisions that he likes.

How is it "subverting" the process to ask the Supreme Court to allow an appeal of a lower court decision? After all, the reason the hyper-activist Ontario court could throw out centuries of both court and political opinion on marriage in the first place is because many people, Mr. Ruby included, disagreed with the traditional marriage definition and wanted it changed. If that is good for them, why is not equally good for those who disagree?

The authors of the Charter -- who, unlike judges, were actually elected to represent the public --pointedly excluded homosexual "rights" from the Charter. It was the courts, in their infinite wisdom, not to mention their small "l" liberal bias, who imposed their own views on the country on this issue.Yet Mr. Ruby seems to be telling Post readers there is just one legitimate side to any argument -- his side, apparently -- and those who disagree, and go to court to fight it, are not only wrong, but are subverting truth, justice and the Canadian way.

Mr. Ruby chastises them for knocking judicial activism, then turning around and asking the court "to override a policy choice which was made by the federal Cabinet and is now supported by a free vote in the House of Commons."He's comparing apples and oranges. It is perfectly legitimate to lament judicial activism -- just as Mr. Ruby celebrates it -- without forfeiting your right to present your case in court.Mr. Ruby argues that because Parliament recently supported same-sex marriage in a "free" vote, those "sore losers" should go away.

But that parliamentary vote was not on a government bill, duly debated in committee and the Commons. It was a straw poll on a non-binding Alliance resolution to retain the traditional definition of marriage, the exact definition the Liberal government promised to uphold. And it wasn't really a "free vote." MPs were freed, but Cabinet ministers weren't. Had they been, the Alliance motion would have been carried.

Mr. Ruby writes that because these faith-based groups participated before the lower courts and a parliamentary committee, they have no business pursuing the matter, an odd position for an activist like Mr. Ruby. Had some of the groups he has represented adopted that attitude, same-sex marriage would not even be on the radar screen today.For Mr. Ruby, it's outrageous that the only reason these groups went to court was because "they don't like the outcome of the political process."Imagine.

But isn't that what distinguishes democracy from any other system -- that you do have the right to openly disagree with your rulers? Unless, of course, you believe this right only applies to those who hold the "correct" views.

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