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Jay Currie

One Damn Thing After Another

12/09/2004

This May Get Ugly

I was delighted to see the Supreme Court of Canada affirming that
"Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today,"
cbc
I have just skimmed the headnotes(which you can find here) but it is encouraging to see that the Court took the position that the Feds, by failing to appeal the various provincial decisions that excluding gays from the marriage benefit was discrimatory, had essentially adopted that position.

Where it is likely to get ugly is that the Liberals seem intent on introducing a bill redefining marriage. Which is possibly the most dumb assed stunt they have pulled to date. In light of the lower Court decisions and the opinion of the Supreme Court there is absolutely no reason to introduce such a bill. Gay marriage is legal in in a majority of Canadian jurisdictions right now. The Court opines,
While federal recognition of same-sex marriage would have an impact in the provincial sphere, the effects are incidental and do not relate to the core of the power in respect of "solemnization of marriage" under s. 92(12) of the Constitution Act, 1867 or that in respect of "property and civil rights" under s. 92(13).
scc

The problem is that the Liberals may not have the votes to pass their bill redefining marriage. Sadly, the Conservatives are going to smell blood on this issue. And there are a number of Liberals, at least a dozen, on record as opposing gay marriage. Add to that the Catholic lobby in the Maritimes, a Bloc which is not particularily interested in helping the Liberals out and a free vote and you have a potential mess.

While the 19 New Democrats are solid - or else they will get a spanking from the ghost of Svend - there is a real possibility that the measure will be defeated. And then where will we be?

As it happens, probably where we are right now. In fact the federal jurisdiction over marriage is rather weak. Weak enough that even if the bill were to be defeated and we returned to status quo ante it would take a good deal of constitutional maneuvering and possibly an invocation of the notwithstanding clause, to overturn the decisions of the lower Courts.

But what a mess.

Had Chretien had the wit to simply accept the fact that in some provinces gay marriage was judicially approved he could have simply washed the federal government's hands of the whole thing. Instead, for reasons I have never been able to fathom, his government decided they needed legislation. And a Supreme Court reference to hold up matters past the election.

Unfortunately, the Conservatives' socon wing is going to run with this issue and, judging from the results in the US election and the 11 states which held referndums on the gay marriage issue, there is every danger that this will resonate with the Canadian public.

While I would love to see the Liberals defeated in the next election, if the Conservatives ran on an anti-gay marriage platform I would have to vote for the Liberal in my riding. And I am afraid that is exactly what the Tories are going to do.