Same-sex marriage and existentialism

With regards to the current social policy debate here in Canada about same-sex marriage, people sometimes wonder where in the Canadian Charter of Rights and Freedoms does it mention that discrimination is not permitted on the basis on sexual orientation. The answer is: nowhere. In fact, the Charter is completely silent on the question.

How, then, did this become a question of human rights capable of being decided in a court of law and not just in the philosopher’s classroom? The phrase is included in the Canadian Human Rights Act, particularly in the “Purposes of Act”, clause 2:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation (emphasis mine), marital status, family status, disability or conviction for an offence for which a pardon has been granted.

Based on legal action such as this, the courts have increasingly “read in” sexual orientation rights to the Charter, such that even though they are not mentioned they become, by means of court decision (rather than by constitutional amendment) a part of the highest law of the land.

What is particularly interesting about this legal article above, however, is its philosophical underpinning. Quite simply, it is a stunning example of legal existentialism. The Existentialists taught that “existence preceeds essence”. Human beings are fundamentally, radically free, to the extent that there is no such thing as human nature. The “essence” of what is means to be human, according to the Existentialists, does not preceed our actual individual existence. Rather, our “essence” is created by our choices. To quote Austin Powers, “It’s about freedom, baby, yeah!” Now go back to article #2 and see where it says:

The purpose of this Act is…to give effect…to the principle that all individuals should have an opportunity…to make for themselves the lives that they are able and wish to have…

Ta dah! Existentialism at work!

While this sounds great in theory, even the Existentialists saw certain problems. First of all, in the Existentialist system there is no such thing as objective morality, an objective right or wrong, because objective morality depends in part on a consideration of human nature. As well, there are certain limits to our freedom, most notably the free choices of other human beings apart from ourselves. These free choices sometimes conflict, giving rise to the celebrated Existentialist phrase, “Hell is other people”!

The danger here is that society could break down, with people seeking to assert themselves over other people based on power and violence rather than relating to each other in justice. The State still needs to maintain public order. But on what basis do we then make public policy? In this kind of system the purpose of public policy is to maximize public freedoms as much as possible, to allow people “to make for themselves the lives that they are able and wish to have” as much as possible. It is impossible to have everyone have absolute freedom, so the function of law becomes to build a balance, to allow the maximum number of people to have the maximum amount of freedom. As the Act states, “to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices”.

At first glance it would seem this isn’t a bad way to run a pluralistic society. Many Canadians have internalized these principles and accept them. Many of my parishioners ask me, somewhat puzzled, why the Church is so opposed to same-sex marriage legislation. While they would never choose it for themselves and would oppose the Church being forced to perform such marriages, they just don’t see why its a problem to allow others to be married in a purely civil ceremony. After all, the legislation doesn’t prevent or require something, it is simply allowing something. Doesn’t this increase freedom? Isn’t it a private matter?

These are powerful arguments, and quite frankly I am still waiting for someone from the Church (clergy or laity) to make the necessary precise counter-arguments, rather than simply re-stating general Church teaching. As my own modest contribution, I would like to point out what I consider the Achilles heel of the public policy recommendation of Existentialism: Hell remains other people. The Existentalist vision is that the individuals (perhaps banding together into interest groups) may be in competition for the assertion of their free will, but the State can create a “fair” environment for this competition. But what happens if the State itself gets taken over by one of those interest groups? The State becomes a powerful tool to emasculate the opposition. No, I’m not talking about concentration camps just yet. In this kind of conflict you don’t need to eradicate your opponents, simply take away their ability to oppose you in the areas where your “assertiveness” is in conflict.

How would this play itself out? The Church, for example, might initially be told something like “You can continue to say Mass, have baptisms, perform weddings, teach the Rosary, and so on. We won’t even force you to do something against your conscience. But we won’t allow you to restrict behaviour either (that “maximization of freedom” principle again), or to incite others to restrict behaviour.”

I submit to you that this scenario has already begun. The mechanisms of the State have already been used in this regard. The courts, in “reading in” elements to the Charter, have already forbidden the Church to restrict behaviour, most notably in the Mark Hall case in Ontario. Another mechanism of the State has now been used to potentially restrict certain elements of free speech, namely parliament. MP Svend Robinson’s private member’s bill C-250, now before the Senate, is being carefully and cautiously watched by religious groups fearful that its provisions might be used to silence the public proclamation of religious beliefs on the question.

It will be interesting to see how this all plays itself out. I think our American friends need to be aware that the exact same Existentialist principles are becoming enshrined in their law, notably in the Supreme Court Casey decision of 1992, which read in part: “At the heart of liberty is the right to define one’s own concept of existence, of the meaning of the universe, and of the mystery of human life.” Judicial Existentialism is triumphant again.

You know, in my heart of hearts I am neither a lobbyist nor a lawyer. I am certainly no prophet, just a priest trying to help his people understand the society around them, their place in it, and where God is in all of this. But I can tell you this: I am diametrically opposed to a public policy grounded in Existentialism. If Hell really is other people, then the only solution is utter existential loneliness. Well I have felt loneliness in my life, and I can tell you with some authority that it sucks. My vision (which I hope is the Christian vision) is Heaven, a place of perfect communion with each other (the “communion of saints”) and with God. Even God is three Persons in communion with each other. Existentialism is wrong. Hell isn’t other people, Heaven is.