Same-sex marriage is a dangerous idea that could hurt religions and wreck a time-tested social institution, the Supreme Court of Canada was told today.
One lawyer predicted open season on churches if the definition of marriage is changed.
But the judges questioned many of the assumptions offered by lawyers representing churches and two provinces.
Robert Leurer, arguing on behalf of Alberta, said the federal government cannot simply change the constitutional definition of marriage to allow same-sex unions.
Church groups said they would be marginalized and could face lawsuits if they were to preach or teach against such marriages.
The province of Quebec said Ottawa is treading on provincial jurisdiction with its proposed same-sex legislation.
The court was hearing a reference from the federal government in a landmark two-day hearing. The federal government, which has drafted a same-sex marriage bill, asked the court to rule on the legislation.
It asked if the bill is within federal jurisdiction, whether same-sex marriage is consistent with the Charter of Rights and whether the charter protects the clergy from having to perform marriages against their religious beliefs.
The government also asked the court to say whether the common law requirement that marriage is only between a man and a woman is consistent with the charter.
The court reserved its decision; it will likely rule some time next year.
Leurer said the bill would, in effect, change the Constitution and that needs a formal constitutional amendment.
He said the word "marriage" in the Constitution must be read in the traditional sense, that of a union between one man and one woman.
Justice Rosalie Abella, one of the freshly minted members of the court, didn't buy that.
"You don't look at 1867 as the end of the story," she said.
But Leurer said such changes should be made cautiously. A mere 20 years of charter law should not "obliterate in one fell swoop the wisdom accumulated since time immemorial."
David Brown, who represented a coalition of conservative family groups, said outside the court that churches opposed to same-sex unions will be subject to a litany of lawsuits if same-sex marriage goes through.
`The federal government may not have the power to enact legislation that protects religion," he said.
He said the federal government seems content to let churches fight lawsuits over their rights while fast-tracking same-sex marriage.
"If the definition of marriage is changed and constitutionalized as to include same-sex marriage it will be open season on religious institutions," he said.
He predicted churches will be sued over their tax-exempt status and will find hate laws used against them.
"It is going to be very serious stuff."
Brown told the court the government can't change things with a simple law.
"The bottom line is that the change to the constitutional definition of marriage requires an amendment."
Quebec, while not objecting to same-sex marriage, argued that the proposed bill encroaches on provincial territory.
Lawyers arguing for other religious groups, including Islamic congregations, the Mormons, Seventh Day Adventists and Catholic bishops, said approval of same-sex marriages could leave churches facing lawsuits if they taught or preached that such unions are wrong.
One lawyer said marriage pre-dates the constitution. "This is not a creature of statute."
Justice Ian Binnie pointed out that the divine right of kings had been around for a long time.
"Why is it that the divine right of kings has to give way to constitutional change but marriage doesn't?"
Binnie also questioned arguments that said recognizing same-sex marriage would, in effect, destroy the institution of marriage.
"It seems to me difficult to see that extending the institution to this group would bring the whole edifice down," he said.
He also was suspicious over arguments that child-bearing is a vital element in marriage.
"To reduce the whole thing to procreation seems to be an oversimplification."