Digging up the Living Tree

I started writing this post before I saw the skeptical commentator's piece, which is so well argued that it almost dissuaded me from posting it. But I am sticking to my Colts for the sake of an intelligent polemic, I hope for my part. I modified my post slightly to address the comments. His/her arguments are that jurisprudence and the traditions of the Court Party are not for polygamists. Polygamists are too fringe for the courtisans, and the courts have been rather dismissive of fringe religious rights. This is all true. But I think I take the more extreme position that this is a revolution, and revolutions are fluid, and the ones in charge today are not always the ones in charge tomorrow.

The skeptical's points fit with what the government has said, though I am in no way placing our skeptical friend in the same seat as the government. Justice Minister Irwin Cotler tells us that the we need not worry about polygamy with the advent of the new definition of marriage. Pierre Pettigrew says that... Ah..., never mind what Pettigrew says! Paul Martin tells us with steely assurance that polygamy does and will remain illegal. That may be true..., for now.

The question I ask is, for how long? Is not one of their key arguments that "societies evolve" (in very compact periods, to boot)? Even if it is not going to happen in the immediate future, the logic has already been set in motion for not-too-distant challenges. I would argue that the revolutionary logic is likely to trample tradition and jurisprudence --there already is precedent to ignore jurisprudence; it is becoming a tradition of its own.

And the challenges will come. Once the political question has been framed in the language of rights; once the question of marriage has been promoted to a right; once there are victims and oppressors, who can stop them? Post-materialists are veritable suckers for this kind of discourse. We are not there now. That may also be true. But it has only been a decade since Egan, and those judges did not seem terribly concerned with jurisprudence then. Feelings, zeal, and agenda, trump jurisprudence. Cotler himself is a Court Party guy. He has been a strong advocate of judicial activism long before he became cabinet minister, knows better than most in the federal Cabinet how these things work.

And if what really matters is the Charter (It is the Charter, after all, that both Martin and Cotler claim so vigorously to defend), new demands for polygamy hedged against the Charter on the basis of religious beliefs are not that far off the horizon. But they may also be secular challenges to the law that we have not foreseen. Society evolves, and laws, they claim, are not straight jackets. Rights and constitutions are like living trees. They grow new branches, just like Trudeau's just society became a branch in one generation. It has almost become the tree now.

One things is hard to miss. Many who have always made arguments to justify their social engineering projects maintaining that the Charter is a living, growing document (the living tree theorists) are now suddenly suggesting that things will come to a full stop once homosexual marriage is granted. The tree will stop to grow. Who can believe that? And if it does, it may come to need hacking or replacing.

Others, not too far behind, are pushing in already or soon will be. And more will likely come. JWs are not terribly political, so I don't expect the assault from that front. Some LDSs, on the other hand, may be emboldened to craft new strategies to return to original beliefs. And I agree that it is not the radicals there that are going to make a difference. But Moslems may be the new wave of mameluks. Will anyone let them through? Revolutions cannot be stopped by any one person's will. And if the Liberals try, they may become road kill in the path of the newer rights revolutionaries (Attention! Les sans-culottes arrivent!). Depending on how much momentum it gains, they may not be able to stop what they have set in motion. The homosexual marriage rights strategy clearly shows it.

But here, my own skepticism kicks in, not because I believe that courts will stick to jurisprudence or that politicians will have self-restraint, and not because I believe that postmaterialists will hold to their present moral convictions. If I were to be consistent (and I am not always), I would have to continue believing that the Liberals, except for Cotler and very few others, are not homosexual marriage crusaders, just like most Canadians. It makes little sense that they would be moved into action so quickly by a couple of thousand, albeit vocal people. If homosexual marriage is Chretien's clever exit strategy/smoke screen, and it is also Martin's newly-found decoy for Adscam, all of the above may be moot. It is sad that the prospect of cynical, naked opportunism is my biggest hope in the argument.