As near as I can make out the Post's point, it was that Parliament should pass a law defining marriage as the union of one man and one woman, or more or less the same definition an Ontario court has just ruled unconstitutional. So grave is the crisis that has ensued that Parliament must invoke what amount to emergency powers, suspending the Constitution's application to this new law by means of the infamous notwithstanding clause, "to protect democracy from the caprice of crusading judges." But then, having gone to all that trouble, Parliament should turn around and, the Post urges, hold a nationwide referendum on whether to throw out the law it has just passed and allow gays to marry anyway.

It's not clear why the Post is in such a rush. The court's ruling does not apply for two years. And the federal government will very likely appeal the case to the Supreme Court, possibly delaying matters still further. There's plenty of time to hold a referendum, if the Post insists, before asking Parliament to suspend the Constitution. If the most recent polls are any guide, the public might well line up in support of gay marriage, in which case the Post's fears for democracy would be for naught.

Ah, democracy. The Post would not appear to be opposed to gay marriage itself, which it agrees is mostly a symbolic matter. The Post is concerned not by the "social revolution" it suggests will follow, but rather by the affront to democracy this implies. Yes, it's the dreaded Judicial Activism, again.

The Post makes much of the fact that the drafters of the Charter refused to include sexual orientation among the list of protected grounds under Section 15, the equal rights clause.

Seven times they were asked, according to the Post, and seven times they said no.

"Homosexual rights are now protected in the Charter," it concludes, "only because the Supreme Court read them in later, over the expressed will of Parliament." Well, no -- though it is nice of the Post to remind us that the Charter was itself the supreme expression of democratic will, having been passed into law by Parliament, with the approval of nine of the 10 provinces. But while it is true that the legislators who framed the Charter 20 years ago did not see fit to include sexual orientation, neither did they explicitly exclude it.

They could have. The Charter says that everyone must be accorded equal treatment under the law without discrimination, including -- but not limited to -- discrimination on the basis of the usual grounds of race, national or ethnic origin, colour, religion, sex, age or disability. The list was deliberately left open-ended.

Had it indeed been the "expressed will of Parliament" that homosexuals should not enjoy equal legal rights with heterosexuals, Parliament could have drafted the Charter to that effect. It could have made the list of those protected from discrimination exclusive: just race and so on, and no others. Or it could have left the list open-ended, but specifically excluded sexual orientation from consideration.

That Parliament did not take either course suggests that in leaving sexual orientation out of the Charter, the legislators were not saying that gays should never be eligible for its protection. They were saying not yet.

It is impossible that the equality rights clause should mean that all forms of discrimination are prohibited: We are permitted to discriminate against the lazy, for example, or the corrupt. But neither, as we've seen, does it apply only to the short list of enumerated grounds. The clause positively begs for interpretation.

And who, under our system of government, is empowered to interpret the law -- not just the Constitution, but laws in general? Who does the Constitution explicitly assign that role? The courts.

So the only remaining question is whether, amongst all the possible grounds that could have been read into the clause, the courts were right to include homosexuality. What criteria should be used to decide whether this or that group should be protected from discrimination? One, obviously, is that the group in question has been the victim of discrimination. A second, that the basis on which they are discriminated against is not something they can or should be expected to change. And a third, that no pressing public objective is achieved by such discrimination, that might override the concern for equal treatment.

All three grounds point to the unreasonableness of discriminating against gays. But there is a fourth, which proved decisive. That is, that it had proved intolerable to much of the public that such discrimination should continue. The courts have not been acting in a vacuum. It was the present government, after all, that amended federal human rights laws to include sexual orientation. Should it permit something with one law that it forbids with another?

But perhaps you stand on the principle that the Parliament of Canada has defined marriage as the union of one man and one woman, and that's that. Well, er, no. It wasn't Parliament, actually. It was a judge, in a British court, in 1866. It was that common-law definition the Ontario court threw out. Should Parliament intervene to uphold one case of "judge-made law" over another?