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Dec 22, 2004 6:31 pm

and speaking of Gays and Lesbians...

It is difficult for me, living in Montreal, to gauge how the recent opinion of the Supreme Court of Canada on Gay and Lesbian marriage was received in the United States, but I have certainly received numerous questions about it from friends, most notably the following:

Q: How does the Supreme Court of Canada’s decision on Gay Marriage show the difference between Canada and the United States?
My response:
A: The decision was an advisory opinion, something the U.S. Supreme Court has refused since its establishment to render.
In fact, looking at the unfolding of the case makes the historian’s mind spin, considering what politics would be like in the U.S. if political questions were routinely brought before the Court for constitutional test before enactment.

To summarize events briefly: In summer 2003, after Prime Minister Jacques Chretien decided not to appeal rulings by the Supreme Courts of Ontario and British Columbia, respectively, ordering the legalization of same-sex marriage in those provinces, Martin Cauchon, then Minister of Justice, announced that the government would introduce a bill to legalize same-sex marriage nationwide. In a move widely seen as affording both delay and political cover to the government’s action, Cauchon referred three questions to the Supreme Court of Canada, in effect asking for an advisory opinion on whether legalizing same-sex marriage was constitutional or required under Canada’s Charter of Rights and Freedoms. An affirmative response by the Court would have given the government the political cover of acting under judicial compulsion. When Paul Martin became Prime Minister in Fall 2003, his Minister of Justice, Irwin Cotler, added a fourth question to those on which the Court was asked to rule. This had the primary benefit of pushing back the Court’s hearing on the controversial issue until after the June 2004 federal elections. Meanwhile, four other provinces and one Territory adopted same-sex marriage.

The Court finally held hearings on the case in October 2004, although one of the Justices (rather sensibly, in my view) asked during oral argument whatever the government was doing bringing the matter before the Court when they had not appealed the previous decisions by the provincial Supreme Court. The opposition did not distinguish itself by the logic of its arguments either—the basis of their claim against same-sex marriage was that it would violate the religious freedom of civil servants who would be forced against their will to perform civil marriages uniting same-sex couples. In the end, the Court’s December 9, 2004 opinion threw the matter back to the government: the federal government was solely responsible for setting the definition of marriage, and could vote to recognize same-sex marriage (this meant that the province of Alberta, whose Conservative Premier Ralph Klein is an outspoken opponent of same-sex marriage, could not use the “notwithstanding” clause of the Charter to overrule the Court’s decision). However, the Court refused to say whether or not any such recognition was required by the Charter.

The reaction to the Court’s ruling is also instructive. The Martin government has promised to introduce a same-sex marriage bill in Parliament after the start of the New Year. Although it is theoretically a “free vote” in which individual MP’s can vote their conscience, the Prime Minister has required all 38 Cabinet members from his Liberal party to support the measure. This makes its passage quite likely, in view of the fact that two smaller parties, the Bloc Quebecois and the New Democratic Party, have pledged to support the bill. The Prime Minister has rejected Ralph Klein's call for a national referendum on the subject. Meanwhile, the Leader of the Opposition, federal Conservative Party head Stephen Harper, stated that he would introduce amendments to the bill such that the government officially define marriage as a union between one man and one woman, but that same-sex couples be offered identical rights and benefits of marriage, presumably by the establishment of civil unions. Harper claimed that such a law would reflect the opinion of most Canadians.

Harper’s announcement has aroused a good deal of scepticism and has been widely scorned as posturing. This is understandable, given not only Harper’s past record of opposition to making sexual orientation a protected category in the Canadian Charter but the fact that such a law would roll back the right of marriage for same-sex couples in the jurisdictions that already recognize it, which combined represent the bulk of the nation’s population. It does suggest a point of interest that has not been given much play, as far as I know, in Canadian airspace. The fact that Harper is only now calling for civil unions as a last-ditch effort to avoid the legalization of marriage constitutes an admission that civil unions have no real existence except as a shield against integration, and tends to discredit any case for such unions in the United States. It also raises a point which perplexes me: Can Canada enact a status that is not marriage but is in every way identical if other countries which might be obliged by existing treaty to recognize marriages contracted in Canada would not be similarly required to accept civil unions?

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