This article was originally published in Maclean's Magazine on March 29, 2004
Canadian Politicians Ask the Judges to Decide on Same-sex Marriage
TRYING TO elicit straight talk from politicians on gay marriage can be tricky. Prime Minister Paul MARTIN looks painfully uncomfortable when the subject arises, far more so than he does when asked about, say, political ethics. "I believe fundamentally that governments cannot discriminate on a question of rights," Martin has said on the matter. "But what we are dealing with here is a very long tradition, a tradition that goes back well before the common law, on which opinion in Canada is very badly divided." Not exactly a ringing endorsement of same-sex marriage, but not backing away from allowing it either. He inherited the bill to broaden the definition of marriage to include same-sex unions from Jean Chrétien. Martin's position is that he's pressing ahead with it - but he's open to other ideas too.
That openness shows in the way he changed the Liberal strategy on sending the issue to the Supreme Court of Canada. Chrétien's so-called reference - a request for an opinion from the judges before the government acted - was limited to asking the court to confirm that the proposed law to let gay and lesbian couples marry was constitutional. Most legal experts viewed this as a slam dunk. After all, the new legislation merely reflects what courts in Ontario and British Columbia had already ruled - that not allowing same-sex marriage violated the Charter of Rights and Freedoms. But Martin added another question: is the traditional requirement that a marriage be between a man and a woman consistent with the Charter? It amounts to asking the Supreme Court to refute, or support, the Ontario and B.C. court decisions.
The court will hear arguments on the reference for three days early in October, and could take several months to issue its opinions. University of British Columbia law professor William Black says it would be "very surprising" if Ottawa doesn't get approval for its proposed changes to the definition of marriage. And chances are the court will also declare the old definition in violation of the Charter, though there is an outside possibility it could find that the traditional opposite-sex definition remains constitutional. "Adding that question does introduce some element of uncertainty," Black allowed. Still, he noted that courts in Canada, unlike those in the U.S., have a track record of extending equality protections to gays and lesbians. "This has gone well beyond anything in the U.S.," he said. "The U.S. only recently struck down sodomy laws, which happened three decades ago in Canada."
While there are many parallels between the same-sex debates in both countries, there are also philosophical differences that go to the cores of two quite different political traditions. "The issue is argued mainly in terms of individual liberty in the U.S.," said one federal government lawyer working on the reference file. "The key concept in Canada is equality." Will the different approaches of the two nations' arguments lead to the same conclusion? Black suggests that's what happened in landmark court battles over abortion rights, where in the U.S. an individual woman's liberty and privacy were emphasized, while in Canada the key issue was the equality of women as a group - but the practical outcome was similar.
There is a big difference, though, at least in the avenues open to politicians. President George W. Bush is left with the nearly impossible task of passing a constitutional amendment to stop courts once and for all from letting gays get married. But any Canadian prime minister could invoke the "notwithstanding clause," which allows Parliament or provincial legislatures to pass laws that violate Charter protections of fundamental rights. Resorting to this ultimate power, though, is viewed as taboo, especially since its main use so far was by Quebec to insulate restrictive language laws from being overturned in the courts.
Even Stephen Harper, who at week's end was the heavily favoured candidate for Conservative leader, deflects questions about whether he would go that far to prevent same-sex marriage. Harper is all for Parliament passing a law to uphold the traditional definition - but on using the notwithstanding clause to make it stick, he avoids giving a clear yes or no. Ultimately, this issue may prove to be no more comfortable for him than it is for Martin - or just about any politician who wades into this combustive mixture of sex, rights and religion.
Maclean's March 29, 2004