Bill C-38 & Tyranny

McGill Religious Studies Professor Douglas Farrow is one of the more thoughtful critics of the move to legalize same-sex marriage. In a series of articles and books (and here), he has developed a philosophically sophisticated argument that marriage between man and woman is not only the cornerstone for society, but the primary institution by which human rights are secured over and against the state.

Via LifesiteNews, Farrow spoke at the recent rally against Bill C-38 in Ottawa, where he stated his case:

Consider this: When the definition of marriage is changed, the biological facts do not change. Men and women make babies, not men and men or women and women. In this respect the equality supposedly achieved by C-38 is achieved only on paper. In order to make homosexual unions more nearly equivalent to heterosexual unions, it is necessary either to find a way for the former to produce babies by technological means, or to deprive the latter of any special relationship to their babies. It is necessary, in other words, for the state to take control over human reproduction. And in taking control over human reproduction the state exercises a tyrannical power.

As I’ve argued in the past, same-sex marriage moves together with a legal positivism whereby nothing remains outside the control of the state (and here). I suppose a proponent of C-38 could argue that the state does not control reproduction anymore than it controls private contracts (which is the analogy of spouse-spouse and spouse-child that the bill envisages). However, that presupposes that contract law (and the courts) envisages a sphere of human activity beyond governmental control. Last I checked, property rights aren’t in the Charter and Charterphiles are too impatient to be restrained by common law.

I think Farrow’s point is valid: Bill C-38 does not expand the definition of marriage. It changes it with consequences its proponents have failed to consider.