meanings of all words of all languages ... always stretch beyond their current
reference. ... Since before Emancipation, the word 'citizen' had never been applied
to Blacks in the US, it would follow from [AGC’s] claim that, as a matter of necessity,
Blacks cannot be citizens. [The AGC’s Definitional Preclusion argument] commits
[it] to the view that Emancipation, by extending its reference, changed the very
meaning of the word 'citizen'. That is, [it] is committed to the view that, after
Emancipation, even whites were no longer citizens according to the usual meaning
of that term in the language."
Legal - Ontario
April 15, 2003
General of Canada's circular logic
from the factum by Epstein Cole LP:
argument begs the question when the conclusion it purports to derive from the
premises is itself one of the premises. Question-begging arguments establish nothing
at all. Of course if you assume that the moon is made of green cheese, you can
prove that the moon is made of green cheese. P always entails P. [The AGC] arguments
are question-begging. Most implicitly have the form: If a marriage is only between
a man and a woman (plus some other considerations), then a marriage is only between
a man and a woman."
The AGC's [Attorney General of Canada] entire case is built on one assertion: "Marriage is the union of one man and one woman." This is said to be a "universal" definition across religions and cultures, because the raison d'Ëtre of marriage is, at root, the rational possibility of natural procreation. If this meaning is altered, then the AGC says that society can expect a myriad of unforeseeable, but necessarily destructive, social consequences. This theory, which we call "Definitional Preclusion," is used at every stage of the analysis in order to avoid the requirements of constitutional scrutiny ...
The AGC's circular logic is legally unsupportable
The Definitional Preclusion approach is legally unsupportable, but it has a long pedigree; the exclusion of classes of people by the creation of "definitional boundaries" is the intellectual foundation of oppression in all of the significant social struggles of our time. Legal definitions of "person", "citizen", and "marriage" have served to maintain discrimination against various groups. But whatever power law brings to bear in its defining, it does not change what is real. Slaves were always persons, even when centuries of law and universal social practice said they were not and condemned them to treatment as property. Women were always persons, despite centuries of court rulings and social practice, "since time immemorial", defining them as chattel. This case challenges the Court to recognize that gays and lesbians are fully persons in Canadian law.
The Supreme Court has repeatedly rejected the reasoning of Definitional Preclusion. In Egan, both the trial judge and a majority on appeal relied on circular reasoning to find that there was no discrimination, ruling that “the plaintiffs fall into the general group of non-spouses and do not benefit because of their non-spousal status rather than because of their sexual orientation.” In contrast, Justice Linden of the Federal Court of Appeal, like a majority of the Supreme Court, recognized that:
Underlying the assertion that “marriage just is the union of one man and one woman,” the AGC factum proposes three rationales for exclusion: religion, biology and history.
All three rationales for Definitional Preclusion are wrong in fact and law.
The AGC's use of religion to support circular logic
The AGC centres much of its evidence on religious tradition. The AGC relies on a definition of marriage as rooted in “Christendom,” provides evidence on the teachings of Thomas Aquinas and St. Augustine, and offers “expert” opinion from the official spokesperson of the Catholic Archdiocese of Toronto. Canadian society and the recognition of civil marriage are not governed by religious law, but by the Constitution and its values of religious freedom, liberty, and equality. Our Constitution demands rational justification, not reliance on majoritarian religious belief.
The AGC's use of biology to support circular logic
The Respondents argue that marriage is by definition heterosexual, because they have the “rational possibility of children”. This argument is legally and factually untenable. The nullity cases (which form part of the common law of marriage) demonstrate that procreation is not the purpose of marriage. A marriage by a heterosexual couple over age 60 offers no “rational possibility” of childbearing. If the central purpose of marriage were procreation, surely this would be reflected in the law of divorce and annulment. It is not. The House of Lords, the United States Supreme Court, and our Supreme Court have all recognized that procreation is not the essential purpose of marriage.
The Law Commission of Canada has recognized the weakness of relying on biological explanations for exclusion from marriage:
The AGC's use of history to support circular logic
The claim that “marriage is heterosexual” because this represents a “universal norm” “across times and across cultures” is also deeply flawed. First, it flies in the face of the AGC’s own expert evidence acknowledging that many societies have recognized marriages between persons of the same sex. Hundreds of cultures have celebrated same-sex marriages over the course of history. There is current legal recognition of equal marriage in the Netherlands and Belgium. Yet, the AGC insists that a different-sex requirement is “universal”.
History is not static. Society evolves. It is therefore not sufficient to state that, because same-sex couples have not historically been allowed to marry (at least in contemporary Canada) then marriage is justifiably restricted to different-sex couples. The issue is not how “marriage” has historically been defined, no more than the Persons Case could have been correctly resolved by the fact the term “person” had been historically defined to exclude women. The issue is whether the exclusion of a historically disadvantaged group is discriminatory and, if so, whether that discrimination is justified. The Charter aims to protect the traditionally disadvantaged from discrimination, however deeply ingrained, seemingly natural, and longstanding.
Definitional Preclusion is no answer to the claim of discrimination. Under the equality guarantee of the Charter, the government cannot rely on a history of discrimination, majoritarian religious views, or so-called natural imperatives to explain or justify its continuing discrimination.
In relying on the definitional argument, the government ultimately seeks to classify gay and lesbian relationships as “other”, fundamentally outside the realm of civic and linguistic intelligibility. In a symbolic sense, the definitional argument declares same-sex unions to be meaningless and incomprehensible. Whatever the arguments advanced by the government, the marriage of two persons of the same sex is not an expression of unintelligible nonsense ... Some of the Applicant Couples consider themselves married. It is the government that fails to recognize their marriages and their humanity. They are nevertheless real.