MON MAY.15,1995 PG: A12

The courts aren't writing laws: They're making governments read them

WHY are constitutional guarantees of equal rights for gays and lesbians like a balanced-budget law? Both impose constraints on the unvarnished power of governments to do whatever they please. The first is calculated to annoy the right, the second sure to inflame the left. Yet complaints about these limits to governmental discretion are almost always couched, not in terms of a desire to discriminate against homosexuals or to run deficits without end, but in the language of parliamentary sovereignty and democratic accountability.

Indeed, even supporters of last week's Ontario court ruling allowing four lesbian women to adopt their partners' children agreed that the judge had done the legislature's work for it, after the defeat last year of Bill 167, which would have extended spousal rights to homosexual couples. "The courts are now leading Ontario instead of the people we elect," beamed one of the newly adoptive mothers. "If judges want to pass legislation they should become politicians," groused an MPP who had voted against the bill.

It may be that the courts in this case have had to clean up the mess left by the legislature. But this is hardly the work of a rogue judiciary. It was, after all, the democratically elected government of Ontario that argued before the court that its own law on adoption was unconstitutional, insofar as "spouse" was defined to mean a person of the opposite sex. And why was it unconstitutional? Because it conflicted with another, higher law, passed by another democratically elected government: 10 of them, in fact. That law is known as the Charter of Rights.

Granted, Section 15 of the Charter, the equality-rights clause, does not explicitly mention sexual orientation among its many prohibited grounds of discrimination. But it doesn't exclude it, either. And in determining that it should be "read in," judges have not been acting without guidance from the legislators. The Ontario Human Rights Code, for one, includes sexual orientation on its banned list. Opponents of the latest ruling, and of Bill 167, are thus in the strange position of invoking democratic principle to justify a law that violates the most democratic law of all: the Constitution.

It may be news to the parliamentary sovereigntists, but the Charter was not dropped on us from a passing jet. It is no different from other laws, except in the majority required to amend it. But since no less a majority was required to pass it in the first place, there's nothing undemocratic about this. Surely a sovereign parliament may sovereignly decide to so constrain itself. Or would the parliamentary sovereigntists deny it that right?

Exactly the same analysis applies to balanced-budget laws, which parliamentary sovereigntists also dislike. Some object that such quasi- constitutional rules imply that governments are not to be trusted. But so does any law: That's why we make them put it in writing. Similarly, every law "binds future governments." It does, at least, until they decide to change it.

To subject laws to constitutional scrutiny is not to subvert democratic rule, but to uphold it. It is, in effect, to apply the rule of law to the rule of law. By passing the Charter, Parliament and nine of the 10 legislatures have solemnly sworn to abide by its guarantees. The courts are only holding them to their word. Yes, this means judges sometimes "make law." So do customs officials. So do traffic cops. So does anyone whose job it is to interpret and apply the law. That is a statement about the rule of law, not the Constitution.

Nor is there anything new in this. No one objected when the courts, asked to interpret the British North America Act, decided whether one level of government had violated the other's prerogatives. Yet judges were just as surely making law then. The Charter simply extended this protection to the citizenry, asking that governments treat individuals with the same courtesy they demand of each other.

If there is a problem with judicial activism, it lies in judges finding creative ways to exempt legislatures from constitutional constraints. A prime example, since we're on the subject, is the Supreme Court's finding that Section 15's straightforward guarantee to "every individual . . . the right to equal protection and benefit of the law" does not in fact mean every individual is equal, but some are more equal than others. The court has said its willingness to hear complaints of discrimination will depend upon whether the individuals involved are members of a historically disadvantaged group.

It's good to see that Ontario is banning discrimination against lesbian mothers. Before long, it might do the same for straight white males.