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It's like America, only with freedom!
December 9, 2004 8:45 AM   Subscribe

Supreme Court of Canada approves gay marriage. Although agreeing that religious groups can't be forced to perform any ceremonies, the Court stated in their ruling that defining marriage for civil purposes in Canada as a lawful union of two people would be constitutional. The ruling validates future legislation legalizing gay marriage, which is apparently almost guaranteed to pass early next year.
posted by XQUZYPHYR (103 comments total)

 
Canada's highest court said Thursday the government can redefine marriage to include same-sex couples, but it added that religious officials cannot be forced to perform unions against their beliefs.

That's great news! Yay! for Canada.
posted by dash_slot- at 8:52 AM on December 9, 2004


thuper!
posted by zelphi at 8:55 AM on December 9, 2004


A country where other people aren't threatened by other peoples preferences in a matter that has nothing to do with them? Well imagine that.
posted by mervin_shnegwood at 8:56 AM on December 9, 2004


Yay!

On the other hand, this means it will still be a hassle to legalize gay marriage in all provinces. I still think the government is best off getting out of the business of marriage (both gay and straight varieties) and only defining civil unions, leaving marriage up to individual churches (or other religious institution).
posted by sid at 8:56 AM on December 9, 2004


That's pretty bad, because now God will lift his protection from Canada.
posted by Optimus Chyme at 9:03 AM on December 9, 2004


My favourite line of the ruling was this particular line:

"the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the [equality] rights of another."

If only someone would tell the opposition that.
posted by aclevername at 9:05 AM on December 9, 2004


This is good, and I think the legislation's passing is likely, but I don't think it's necessarily a foregone conclusion — especially since the court didn't say "no" to question 4 (which parliament could then point to as absolving it of political responsibility on the issue).
posted by transient at 9:15 AM on December 9, 2004


IANAL but my understanding of the ruling (as it was explained on CBC Radio 1 this morning) was that the Supreme Court didn't say gay marriage was constitutional, but rather that it was under Federal, not a Provincial jurisdiction. In fact, they declined to answer that question ("question 4"), saying for a number of reasons it was up to the Federal government to decide whether to allow gay marriage or not.

on preview: what transient said.
posted by Turtles all the way down at 9:35 AM on December 9, 2004


Next up: Decriminalizing Marijuana.

"Pass The Freedom On The Left Hand Side..."
posted by Fuzzy Monster at 9:36 AM on December 9, 2004


great news!

So if it's up to Federal jurisdiction, then isn't it irrelevant what the provinces say?
posted by amberglow at 9:39 AM on December 9, 2004


Lyle Denniston has insightful commentary on the decision up over at SCOTUSBlog.
posted by monju_bosatsu at 9:39 AM on December 9, 2004


Is anyone else just profoundly depressed that the USA is, at this point, no longer the bastion of personal liberty and freedom we were all brought up to believe it is?
posted by InnocentBystander at 9:41 AM on December 9, 2004


I'm proud to say we have teh gay.
posted by stinkycheese at 9:43 AM on December 9, 2004


Can we get a bit of relief from the "No society in history has ever had gay marriage" arguments now?

I suppose the counterargument will now become a) gay marriage will not lead to the destruction of society (because it won't in Canada), b) gay marriage will lead to the tremendous weakening of society, such that when a larger event happens it will be at tipping point it wouldn't have been at w/o gay marriage, c) therefore, there shouldn't be gay marriage.
posted by ontic at 9:44 AM on December 9, 2004


Amberglow--yes, I think that's the point: if the Federal government passes legislation allowing gay marriage then a province can't outlaw it, although I heard something this morning about Alberta possibly using the infamous Notwithstanding clause to circumvent this. (Again, I await the comments of someone who actually understands the legal and constitutional issues involved!)
posted by Turtles all the way down at 9:44 AM on December 9, 2004


As my circle of friends' resident right wing nut from the backcountry of central Alberta, land of the conservatives (which suits me just fine) I need to respond to this, and how!

What the hell took so long? It's about damned time this stupid legal barrier was removed.

This comment brought to you by the fact that not all right-wingers are religious zealots.
posted by ChrisR at 9:45 AM on December 9, 2004


How does this complicate international relations? If other countries like the US refuse to recognize these unions, does that violate their standing treaties (or whatever) with Canada?
posted by scarabic at 9:48 AM on December 9, 2004


nice to hear, ChrisR (now come down here and teach our wingers not to hate--and try to legislate that hate--so much) : >

and thanks, Turtles.

and i'm with you, Innocent--we're going backwards--fast.
posted by amberglow at 9:49 AM on December 9, 2004


Is anyone else just profoundly depressed that the USA is, at this point, no longer the bastion of personal liberty and freedom we were all brought up to believe it is?

As a recently naturalized citizen, I am doubly disappointed in my fellow Americans.

This election was a referendum on ignorance, and America lost something about its essence that will take many years to recover, if ever.
posted by AlexReynolds at 9:50 AM on December 9, 2004


Did I ever mention I love Canada? : )
posted by SisterHavana at 9:53 AM on December 9, 2004


This comment brought to you by the fact that not all right-wingers are religious zealots.

Enough right-wingers are, though. Until there are legitimate electoral options, don't think you're off the hook.
posted by AlexReynolds at 9:53 AM on December 9, 2004


InnocentBystander- "at this point"? Man, where have you been the last few years?
posted by mkultra at 10:03 AM on December 9, 2004


So if it's up to Federal jurisdiction, then isn't it irrelevant what the provinces say?

one would think so amberglow, but canadian provinces are far more autonomous that american states. i'm not sure how this particular issue will play out. in any event, it's good news - especially in light of the fact that gay rights groups in america are backing away from this issue.

on preview alex reynolds, as an american who has lived for a decade in europe, i think most americans would be shocked to find out that by their own standards, america is not even in the top ten when it comes to personal freedom and individual liberty. that is, of course, if you don't rank owning a gun as an important liberty which i do not. i don't live in america because i actually value what i was taught as a kid were american values. and as a "european" i feel more free to be an american. isn't it ironic?
posted by three blind mice at 10:03 AM on December 9, 2004


further to zelphi's comment,

God Bleth Canada!
posted by SNACKeR at 10:04 AM on December 9, 2004


I agree with Optimus Chyme -- it's going to be ugly when Canada falls apart at the hands of the debauchers. My prediction is that in ten years, no one in Canada will be married, they'll stop making babies, pedophiles and philanderers will run the government, and there will be state-sanctioned trips to Ibiza. Thank God for America.
posted by billysumday at 10:06 AM on December 9, 2004


Oh my God! I can feel my marriage dissolving from mere proximity to those heathens!
posted by fungible at 10:07 AM on December 9, 2004


Can we get a bit of relief from the "No society in history has ever had gay marriage" arguments now?

Gay marriage has already been legal for some tie not just in Canada but in some European countries as well... and you don't see that stopping any right-wingnuts from making that ignorant argument.
posted by clevershark at 10:08 AM on December 9, 2004


My prediction is that in ten years, no one in Canada will be married, they'll stop making babies, pedophiles and philanderers will run the government, and there will be state-sanctioned trips to Ibiza.

You should sell that idea to Margaret Atwood's evil twin.
posted by AlexReynolds at 10:09 AM on December 9, 2004


it's going to be ugly when Canada falls apart at the hands of the debauchers.

That would be a funny thing to say, were it not that so many people make that argument without joking.
posted by clevershark at 10:10 AM on December 9, 2004


billysumday: I'm looking out my window now and I can already see a few pedophiles wandering around with renewed confidence. Well, it's a clown with a van, but I'm assuming that's what he is.

/sick, sick humour by the father of a six year old who should have grown up by now.
posted by Turtles all the way down at 10:11 AM on December 9, 2004


TBM: on preview alex reynolds, as an american who has lived for a decade in europe, i think most americans would be shocked to find out that by their own standards, america is not even in the top ten when it comes to personal freedom and individual liberty. that is, of course, if you don't rank owning a gun as an important liberty which i do not. i don't live in america because i actually value what i was taught as a kid were american values. and as a "european" i feel more free to be an american. isn't it ironic?

I don't know, I still have British citizenship, but they seem to be on an inexorable path to technological Orwellianism that makes me a bit uncomfortable to return, with its cameras everywhere, atrocious libel and speech laws that stifle dissent, and plans of handing out ID cards left and right.

(Granted, Britain might not be considered "Europe" these days...)

I still have hopes for America as a land of freedom. I'm not disappointed in the current administration -- these people are evil and that's just the way it is -- but I am really very, very disappointed in American citizenry as a whole.
posted by AlexReynolds at 10:14 AM on December 9, 2004


Go Canada. Yesterday in New Zealand parliament passed The Civil Union Bill. Could the fundies be right, could gayness be contagious? It certainly seems to be catching on.

bastion of personal liberty and freedom This is the same USA that nearly tore itself in two over rich white guys owning black people right?
posted by isthisthingon at 10:15 AM on December 9, 2004


According to an embittered 15 year old I beat in an online game the other day, the definition of pedophile is "anyone over 30 on the internet."

That little shit.
posted by scarabic at 10:16 AM on December 9, 2004


I'm looking out my window now and I can already see a few pedophiles wandering around with renewed confidence.

A guy is walking into the woods with a little boy.

Little boy: "I'm scared!"
Guy: "You think you're scared? I've gotta walk outta' here alone!"
posted by Civil_Disobedient at 10:17 AM on December 9, 2004


What's the word for someone over 30 who plays games with 15 year olds in order to score easy victories?
posted by AlexReynolds at 10:18 AM on December 9, 2004


Quick comment on the constitutional issues from another Alberta conservative-but-not-zealot: the court essentially ruled that the section of the 1867 constitution giving the federal govt. jurisdiction over "marriage and divorce" trumps the section giving the provinces jurisdiction over "solemnization of marriage". It also said that same-sex marriage would not violate the 1982 Charter of Rights and Freedoms.

It is therefore difficult to see how any province could use the infamous "Notwithstanding Clause" to preserve the traditional definition of marriage. The clause allows provinces to enact legislation notwithstanding the fact that it violates certain provisions of the Charter; it does not permit them to enact legislation in areas of clearly defined federal jurisdiction.

On preview: an overly pedantic first post ever, and probably interesting to few, but perhaps a helpful counterbalance to the recent bevy of nervous, tittering pedophilia jokes...
posted by Urban Hermit at 10:20 AM on December 9, 2004


I think America is in a definite decline on civil rights issues, we had out peak and I don't see us getting near that for a long time, 4 more years of Bush, the next four years after that will be, at best, a conservative democrat (you can bet that's who will come out of the primaries, just cause the dems will want to play to the center-right population), then either 4 more of him or another 4 of a Repub. so the outlay is at min, 12 more years and most likely longer. Can we recover from 16 years of social stagnation? Or will too many liberals move, give up or grow conservative?

Yay for Canada, good job.
posted by edgeways at 10:21 AM on December 9, 2004


bastion of personal liberty and freedom This is the same USA that nearly tore itself in two over rich white guys owning black people right?

Sadly, most countries which we now think of as developed world at one time allowed slavery-- did I say allowed? It was the labour of milions of slaves on sugar plantations and so on over the centuries that made Europe rich in the first place. Slavery was outlawed in the British Empire a few decades before the civil war in America, but it isn't as though it never existed.

That said, I'm proud of my country today.
posted by jokeefe at 10:26 AM on December 9, 2004


I love my country.

[kisses ground underneath her feet]
posted by orange swan at 10:27 AM on December 9, 2004


I still have hopes for America as a land of freedom.

I've always been a fan of America. But I think Americans aren't really very free, except as compared to the countries that immigrants came from at the time of its founding, and of course the obvious examples today. Yet Americans continue to believe that they enjoy the greatest degree of freedom in the civilised world. From my perspective after living four years there (I'm Canadian, so that's my basis for comparison) no:

-the level of policing is incredible: in San Diego I counted something like five different levels of police in the university community in which I lived. You have a greater chance of being incarcerated in the U.S. than in Canada or Europe

-drug testing. It's, as far as I know, unheard of here. How many jobs in America require you to be tested regularly?

-you have a much greater chance of being drafted. I realize there's no draft now, but it wouldn't even be a matter for discussion in Canada.

-the number of government regulations that must be conformed to and documented if you're in business or, in my case at the time, science, is astounding.

I don't mean these statements as pejorative or, worse, as typical Canadian smugness. But I think Americans must understand that, among their country's many strengths, freedom itself is not necessarily foremost.
posted by Turtles all the way down at 10:27 AM on December 9, 2004


Sorry, I messed up the quoting in my comment above. Original comment is here.
posted by jokeefe at 10:28 AM on December 9, 2004


Can the Notwithstanding Clause be brought in when it's an issue of civil liberties?

Ralph Klein (the King of Alberta) has never been especially socially conservative, has he? I mean, I really don't like his policies re:spending cuts/insidious creeping towards privatization/blowing up the Calgary General Hospital, etc, and I don't have much of an opinion of the man, but having basically grown up with the Klein government, I can't really remember ever things like "values" coming up, unless the values were money. The whole gay marriage thing seemed really out of character for him.

on preview: Urban Hermit kind of answered my question.
posted by SoftRain at 10:30 AM on December 9, 2004


Thanks Urban Hermit. Could you please explain the issues and principles underlying question 4, and on what basis the Supreme Court, to my understanding, declined to answer it?

(and I hereby proclaim my right to make sick pedophilia jokes!)
posted by Turtles all the way down at 10:35 AM on December 9, 2004


I don't mean these statements as pejorative or, worse, as typical Canadian smugness. But I think Americans must understand that, among their country's many strengths, freedom itself is not necessarily foremost.

I am agreeing with you more and more. Maybe it was a mistake to become an American. I'm divided about what to do, personally, but I think I'll tough it out a few more years and see what happens...
posted by AlexReynolds at 10:38 AM on December 9, 2004


SoftRain: Personally, I thought throwing money at homeless shelter residents and telling them to get a job seemed pretty socially conservative.
posted by stinkycheese at 10:43 AM on December 9, 2004


stinkycheese: C'mon, he was hammered! That's why he's so loved as the everyman!
posted by Turtles all the way down at 10:45 AM on December 9, 2004


This is such good news. It was a unanimous decision too.

I'm not sure marriage is such a fantastic institution, but if my gay and lesbian friends want to celebrate their relationships that way, good on 'em and invite me to the wedding.

I'm also not sure patriotism is such a great thing, but I felt proud this morning. Now let's get to work (together) on this missile defence craziness while there's still time...
posted by 327.ca at 10:49 AM on December 9, 2004


Does this mean the US is going to search your car at the border if they hear you listening to show tunes?
posted by RemusLupin at 10:52 AM on December 9, 2004


Turtles - I'll try, but anyone feel free to correct me if I've misinterpreted.

This whole decision was on a "reference" to the court - that is, it was not made in regard to a particular case that made its way to the Supreme Court. In essence, it's a big 'hypothetical question' from the government to the court. In question 4 the government asked whether the current common law requirement that marriage be between a man and a woman was consistent with the Charter of Rights and Freedoms. The government was hoping that the court would say "no" - traditional marriage is discriminatory. This would make it far easier politically to pass same-sex marriage legislation.

Instead, the court deftly eluded the question, saying that a) there is no common law requirement that marriage be man-woman since several provincial courts have already overturned it; and b) since this is only a "reference" and not a decision on an actual case, if the court answered that traditional marriage was in fact constitutional, the decision would create chaos and confusion without actually having the force of law.

In short, the court's answers to questions 1-3 said same-sex marriage would be constitutional, but it's up to Parliament to decide on it. In question 4, the court explicitly refused to do the 'heavy lifting' on behalf of elected legislators.
posted by Urban Hermit at 10:55 AM on December 9, 2004


Could you please explain the issues and principles underlying question 4, and on what basis the Supreme Court, to my understanding, declined to answer it?

Question 4 is asking the Supreme Court if the current definition of Marriage, with is between two opposite sex people, is consistent with the charter of rights. If the court says no, it opens every marriage law in the country up to challenges. If it says yes, it interferes in various provincial and federal governments stated intent to modify their marriage laws. It chose not to answer because the question may be irrelevant in a few years, and because they already pretty much did answer in the first three resolutions.

That being said, I think it's absurd for the federal government to get involved here. As someone else said, Canadian provinces are far more autonomous than US states, and have far more legislative responsibilities. The administration of marriages, deaths and births is a provincial responsibility in practice, as opposed to the 1867 theoretical federal responsibility cited. Most provinces are already moving towards allowing some manner of same-sex civil union. The federal government in this case is doing two things, like it or not. 1) pandering to the media and the general population by jumping on an unstoppable bandwagon, where only a few years ago both Martin and Chretien were firmly against defining marriage as anything but a man and a woman. According to the court "While federal recognition of same-sex marriage would have an impact in the provincial sphere, the effects are incidental". 2) Giving Canadians the false impression that the federal government has some relevance in their lives, which it doesn't for the most part, and certainly not when it comes to this issue. The provinces will ultimately decide, not the federal government. All this ruling does is say that it's not unconstitutional for same-sex civil unions to be officially recognized. Which everyone knew anyways. And would not prevent a provinces from preventing it from happening.

Regardless, same-sex unions in Canada are unstoppable, so the sentiment in this thread isn't undue. Just don't congratulate the Supreme Court or Paul Martin.
posted by loquax at 10:55 AM on December 9, 2004


Canada...FUCK YEAH!
posted by The Card Cheat at 10:58 AM on December 9, 2004


a) there is no common law requirement that marriage be man-woman since several provincial courts have already overturned it;

I think that's the logical step that I was missing. The Supreme Court said, in effect, "If you thought this was an issue why didn't you appeal those Provincial decisions? Instead you gutlessly stood by waiting for someone else to make the decision for you, then when they didn't you directly asked us to. Sorry, there's nothing in the Charter of Rights and Freedoms that forbids gay marriage, but if you want it you're going to have to step up and pass legislation."

Am i close?
posted by Turtles all the way down at 11:02 AM on December 9, 2004


The administration of marriages, deaths and births is a provincial responsibility in practice

According to the historic definition of marriage as being a union of a man and a woman. But is this not obviously a human rights issue now, and thus, I would guess, not an issue in which it would be acceptable for province to province variation?
posted by Turtles all the way down at 11:06 AM on December 9, 2004


Turtles - yes, I think that's it. Also, what loquax said.

Given that Prime Minister Martin may have a hard time getting same-sex marriage legislation through Parliament right now, Canada may end up with a marriage-law situation similiar to the current status of abortion: courts overturn existing laws prohibiting a certain action, government refuses to either reaffirm or replace them, and the action is permitted by default.
posted by Urban Hermit at 11:06 AM on December 9, 2004


Given that Prime Minister Martin may have a hard time getting same-sex marriage legislation

Okay, now that leads to the next question. Given the recent banishment of whatsername I'm not sure of the current numbers but the Liberals still need support from other parties for legislation to pass. They're talking about a free vote, which for me would be the final nail in the coffin of Paul Martin as having the qualities of a leader rather than a follower. So let's say he enforces party discipline and all the Liberal votes are for gay marriage. Is, for example, the Bloq going to oppose it?
posted by Turtles all the way down at 11:12 AM on December 9, 2004


The Bloq would never oppose it. They wouldn't vote 'no' on a social justice just to bring down the government. The Libs are going to tank all on their own, and until that happens the BQ is actually enjoying some effectiveness in the current mix. They've taken a constructive role in many parliamentary committees and seem to be sincere in making the arrangement work...
posted by 327.ca at 11:21 AM on December 9, 2004


If anything, the BQ and the NDP will show more solidarity on this than the Liberals.
posted by stinkycheese at 11:23 AM on December 9, 2004


So if the Liberals allow a free vote within their own caucus they've lost not only my vote but that of probably many other Canadians, and will have been shown up by the Bloc and the NDB in the process.
posted by Turtles all the way down at 11:25 AM on December 9, 2004


So let's say he enforces party discipline and all the Liberal votes are for gay marriage. Is, for example, the Bloq going to oppose it?

It all depends on what the proposed law is, but I cannot imagine a "gay marriage" law passing anytime soon. My guess is that the CPC and the BQ will oppose it for political and procedural issues, and continue to say that for the most part it is a provincial matter. If it's a free vote, much of his own party will vote against it. The Liberal party has clearly shown that it is against redefining marriage in ways other than one man and one woman. This was the one thing they agreed with the CA about during much of the 90's. I think Paul Martin is playing games, simple as that. He knows he'll never leave a legacy as a PM, maybe he's angling for UN positions in the future? Maybe trying to shift leftwards for the next election? Lately he's been talking a really big game, in Chile, with Bush, in Africa. My impression is that he's trying to cast himself as a true leader by writing cheques his minority government can't cash. Look at this, for instance, huge amounts of overwhelmingly positive press for Canada and the government, at least superficially. Or his previous announcement that he wants to transition the territories into Provinces. Maybe this is all a build up to an announcement that he'll be supporting the missile shield in a few weeks. Who knows? Not me.

On preview - 327.ca, the Bloq would not see this as a social justice issue, but as a provincial rights issue, which it more closely resembles. Why should the federal government tell Quebec who can and can't get married within their borders? They're very capable of legalizing same-sex unions on their own, just as the other provinces have been doing.
posted by loquax at 11:25 AM on December 9, 2004


I think Paul Martin is playing games, simple as that. He knows he'll never leave a legacy as a PM

What a shame. Clearly a compassionate, intelligent, highly capable man. Maybe his reach extended only as far as equalling (or, I guess, just exceeding) the accomplishments of his old man.
posted by Turtles all the way down at 11:31 AM on December 9, 2004


Also, before anyone starts to believe that Canadians are that different from Americans, keep in mind that more Canadians strongly oppose gay marriage than strongly support it (although slightly more generally support it overall). For what it's worth.

On preview: well, Turtles, what do we know - maybe he'll go on to win another 3 consecutive majorities. I just can't imagine he will.
posted by loquax at 11:33 AM on December 9, 2004


Now how could you say that when Canada has this problem that it must deal with?
posted by Epitath at 11:35 AM on December 9, 2004


A comment: observing that many contributors to this thread appear to be Canadian, I relish the fact that you can have a political discussion in Canada that does not degenerate into name calling and other ad hominem attacks, but rather keeps its focus on what would be good for Canada as a whole. Yet another freedom we should jealously safeguard.
posted by Turtles all the way down at 11:47 AM on December 9, 2004


loquax that poll seems fishy. Where are all the people who couldn't care less one way or the other? Lumped with the undecided?
posted by Mitheral at 11:56 AM on December 9, 2004


Yeah, this is easily the most coherent thread on the subject of gay marriage that I've ever seen on Mefi. No surprises that that's because it's not about gay marriage here in the USA... As much as I'd actually like to get involved in politics, activism, and mind-changing here in my own country, there can be no doubt that literally everything about Canada, barring its climate (SO EFFING COLD), is more attractive to me as an American who believes in freedom.
posted by logovisual at 12:00 PM on December 9, 2004


Here's another. And CTV has a story about a poll from February where "Forty-eight per cent oppose gay marriage, while 47 per cent support it". My point wasn't so much the exact numbers, just that support for gay marriage is not *that* different in Canada compared to the US. The detractors just don't receive nearly the same amount of press, is my guess at least.
posted by loquax at 12:02 PM on December 9, 2004


What a shame. Clearly a compassionate, intelligent, highly capable man. Maybe his reach extended only as far as equalling (or, I guess, just exceeding) the accomplishments of his old man.

Dalton Camp once said this about Paul Martin: “Here's a guy who's been handed every success he ever had by armies of the mesmerized, but what's so loveable about him is that he makes it all look so hard."
posted by 327.ca at 12:10 PM on December 9, 2004


loquax: doubtless the poll reflects Canadians' opinions, but the difference is how strongly they are held. My father, for example, is completely against gay marriage if you try to debate it with him, but if it passes he's not going to waste a lot of time agonizing about it or mounting an opposition to it. I think most Canadians ultimately think that what the other citizens do, on their own and when it doesn't affect other people, is not of ultimate concern to them.

/but put a few beers into Dad and listen to him talk about the queers!
posted by Turtles all the way down at 12:12 PM on December 9, 2004


327: Wasn't it Dalton Camp who characterized Jean Chretien as "looking like the driver of the getaway car?". (Second only, in my opinion, to some Canadian writer's mother saying that Diefenbaker looked like "a boiled owl.")
posted by Turtles all the way down at 12:15 PM on December 9, 2004


327.ca, the Bloq would not see this as a social justice issue, but as a provincial rights issue, which it more closely resembles. Why should the federal government tell Quebec who can and can't get married within their borders? They're very capable of legalizing same-sex unions on their own, just as the other provinces have been doing.

loquax, I don't disagree. I'm just saying that it's expedient for them not to jeopardize the political opportunities they have now due to the minority situation in Ottawa. And also, that the BQ and PQ tend to reflect the generally more tolerant views of Quebecers. I can't see them voting against a human rights issue that they would be inclined to support in Quebec simply to defeat the government.
posted by 327.ca at 12:16 PM on December 9, 2004


but put a few beers into Dad and listen to him talk about the queers!

Well, there's hope for Dads everywhere. I found this post quite encouraging...
posted by 327.ca at 12:24 PM on December 9, 2004


327: Wasn't it Dalton Camp who characterized Jean Chretien as "looking like the driver of the getaway car?". (Second only, in my opinion, to some Canadian writer's mother saying that Diefenbaker looked like "a boiled owl.")

Hah! I'll have to remember that.
posted by 327.ca at 12:25 PM on December 9, 2004


I'm not keeping score, but Canada is totally winning.
posted by jon_kill at 12:27 PM on December 9, 2004


there can be no doubt that literally everything about Canada, barring its climate (SO EFFING COLD), is more attractive to me as an American who believes in freedom.

logovisual, I see from your profile that you're in NYC. I live near Victoria, BC where right now it's about 48 degrees Fahrenheit.

According to Weather Underground, that's exactly the same as the current temperature in Central Park. Of course, we're three hours earlier than you, so it'll probably warm up a bit here in the afternoon.
posted by 327.ca at 12:38 PM on December 9, 2004


Okay, I just want to jump in on the "cold" thing. Move to Vancouver! It's not cold there. It's cold here in Ottawa, but you don't have to live in Ottawa.

On-topic, there's not much I can say but god damn, that's some fine legal reasoning from the Court. Acknowledging we're a living tree jurisdiction! Blindingly good Charter analysis! Makes me weepy with geeky pride.

Oh, and I think the legislation will pass - NDP's either all supportive or Layton is thinking it won't be free vote, and I'm pretty sure most Liberals will go with even if it's a free vote, for fear of the government failing. But, on a day like today, it's hard not to be optimistic. I might have a wedding to go to now!
posted by livii at 12:44 PM on December 9, 2004


Move to Vancouver! It's not cold there.

Yeah, I just went grocery shopping in shorts and sandals. Well, okay, I looked a little stupid, but it's not like I was cold or anything.
posted by Turtles all the way down at 12:49 PM on December 9, 2004


doubtless the poll reflects Canadians' opinions, but the difference is how strongly they are held. My father, for example, is completely against gay marriage if you try to debate it with him, but if it passes he's not going to waste a lot of time agonizing about it or mounting an opposition to it.

I think this is very much correct. A Canadian poll on this issue that states such and such percentage is strongly opposed means something different than the same statement in the US. No one here is going to vote Rhino if they were the only party who'd promise to ban gay marriage. My father is probably also strongly opposed (I don't know I avoid these kinds of issues with him) but he ain't going to get the pickfork out if it comes to pass.

On Paul Martin: I think it was the topic of one of Rick Mercers monologues where he talks about Paul saying he had to tighten his belt and cut back on luxuries to buy CP Ships ... for a 180 MILLLION. Not exactly couch change and eating in for a few weeks to buy a new TV.
posted by Mitheral at 12:57 PM on December 9, 2004


Urban Hermit, thank you for explaining how the Notwithstanding Clause (is it legal to use it without "infamous" before it?) does not apply here. I was worried about that.
posted by QIbHom at 1:07 PM on December 9, 2004


The fact that only a slim majority of Canadians favor gay marriage in no way makes it near-equivalent to the U.S. in prejudice. Americans oppose gay marriage by a factor of almost two to one. Fifteen percent more Americans are even opposed to civil unions than those in favor. If you add to your numbers the Canadians who support civil unions, you absolutely trounce progressive thought in the United States.
posted by grrarrgh00 at 1:16 PM on December 9, 2004


Metafilter: looks like a boiled owl.

We Canadians seem to have passive-aggressively assumed control of this thread with our relentless civility and bizarre concern for constitutional minutiae (or maybe that's just me).

QIbHom: I believe that the infamous clause could be applied by a province (e.g. Alberta) seeking to defend traditional marriage, but only in the absence of a clear federal same-sex marriage law - which may or may not be immediately forthcoming, as others have commented.

Also, if anyone cares, here's some early reaction to the decision from the Canadian blogosphere, including the perceptive Paul Wells and the James Carville of Canada, Warren Kinsella.
posted by Urban Hermit at 1:24 PM on December 9, 2004


To be fair, Americans' views on same-sex unions have moderated a bit since that CBS/NYT poll from a year ago. Now, more Americans cite support for at least some form of gay unions than don't. But still, when asked about actual marriage, most polls show Americans opposing it two-to-one.
posted by grrarrgh00 at 1:25 PM on December 9, 2004


the Notwithstanding Clause (is it legal to use it without "infamous" before it?)

No. I'm sorry, but it is not. ;-P

I just think it would be hilarious if Alberta were to be the second province to invoke it (for those not of the Great White North, Quebec used this loophole in the 80's to get around the fact that their banning of English language signs was unconstitutional).
posted by Turtles all the way down at 1:25 PM on December 9, 2004


QIbHom - Hold on a second. The notwithstanding clause doesn't apply because nobody's talking about changing the Charter, which realistically could never happen. Changing the Canadian constitution is so difficult as to be rendered moot. The Supreme Court merely expansively read the original 1867 constitution as including gay marriage as "marriage" in line with Canadian constitutional traditions.

That being said, the provinces will ultimately decide. From the justices:

"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)."(which is under provincial jurisdiction).

This means that the federal government can do what it wants in terms of passing laws, but the only laws that matter are provincial ones when it comes to marriage. But the Charter of Rights and Freedoms and the Notwithstanding clause have very little to do with this. Also, the notwithstanding clause gets too much of a bad rap. It is absolutely necessary as a fail safe when you consider the fundamentally fragmented nature of Canadian confederation, at least in my opinion. But that's a much longer discussion.

On preview - I don't know about the equivalence of Canadian anti-gay marriage sentiment with the American counterpart. Maybe it is much stronger in the US. But the fact is that Canada is not a utopia for homosexuals wishing to be married. Just because governments pass laws doesn't mean the 48%, or 40% or whatever will go away. I don't really have a point here, just that one shouldn't be too quick to laud Canadians if it's only relative to opinions expressed in some parts of the US. And again, we aren't talking about a constitutional amendment to forever enshrine gay marriage in Canada's fabric. We are talking about a law that can be revoked should the wind blow in a different direction. Not to rain on the parade too much, but I think that today's decision has been a little overblown, along with the love for Canada. Of course, it is appreciated regardless.
posted by loquax at 1:26 PM on December 9, 2004


I should say, the above is how I understand things. Many people seem to be writing about the charter. Have I missed something? No-one's talking about constitutional amendments here are they?
posted by loquax at 1:30 PM on December 9, 2004


I don't understand loquax... the court didn't give an anwer on question 4. If the government passed a law reaffirming opposite-sex marriage, and that was challenged, then it would have to provide an opinion, but here it demured.

I thought the reason that we in Ontario have same-sex marriage was because the old definition was found to be discrimination based on sex under the charter -- not sexual orientation.

It isn't as if there has to be a formal amendment for new (and perhaps objectionable to some) constitutional issues to arise. Ontario, in the current situation where there is no national same-sex law, could presumably invoke the notwithstanding clause, no?
posted by maledictory at 1:48 PM on December 9, 2004


loquax, no one is talking about amending the Charter to include same-sex marriage specifically, but the notwithstanding clause - sorry, the "infamous" notwithstanding clause - could be invoked to shield any piece of legislation against a Charter challenge. For example, the court decided today that same-sex marriage was consistent with, and indeed 'flowed from', section 15 of the charter, which states that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Invoking the notwithstanding clause, a province could potentially pass a law banning same sex marriage even in full acknowledgement that the law violated section 15.

However - and this is where we seem to disagree - I don't believe that today's decision left final jurisdiction on the question of marriage with the provinces. The court clearly states that the federal government's proposed legislation "pertains to the legal capacity for civil marriage and falls within the subject matter of s. 91(26)" (i.e. federal, not provincial jurisdiction). Even the Government of Alberta seems to agree with this interpretation - from the Globe:

Alberta Justice Minister Ron Stevens acknowledged that giving Parliament authority over the definition of marriage robs the provinces of input.

"Our ability to defend the Marriage Act has been restricted by this ruling," Mr. Stevens conceded in televised comments. "You cannot use the notwithstanding clause relative to a matter not in your jurisdiction.... We are getting closer to a centuries-old institution being changed," Mr. Stevens said. He would not specify Alberta's next steps, though he admitted they seemed limited.

posted by Urban Hermit at 1:50 PM on December 9, 2004


loquax, I believe the bit you quoted was only referring to the "solemnization of marriage," i.e. the question of affecting the freedom of religious groups to refuse to perform marriages:

Section 2 of the proposed legislation is ultra vires Parliament. In pith and substance, s. 2 relates to those who may (or must) perform marriages and falls within the subject matter allocated to the provinces under s. 92(12).
posted by transient at 1:59 PM on December 9, 2004


Sorry, I misunderstood some of the questions back and forth. Yes, the notwithstanding clause can definitely come into play should any provincial law prohibiting gay marriage be passed. No new amendments required. But then why, Urban Hermit, do you say that this is only in the case of the absence of a federal law? Didn't the ruling say that this is essentially the domain of the provinces?

On preview: Urban Hermit. I'm confused. S.91(26) [Federal responsibility] of the BNA Act states that marriage and divorce is under the purview of the Federal Government but the ruling today said that:

"Read expansively, the word "marriage" in s. 91(26) does not exclude same-sex marriage. The scope accorded to s. 91(26) does not trench on provincial competence".

and that:

"the effects are incidental and do not relate to the core of the power in respect of "solemnization of marriage" under s. 92(12) [Provincial responsibility] of the Constitution Act, 1867 or that in respect of "property and civil rights" under s. 92(13)[Provincial responsibility]."

Section 92 reads: In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,--
12 The Solemnization of Marriage in the Province
13 Property and Civil Rights in the Province

So the Supreme Court, as I understand it, is saying that while the federal government can chose to define marriage as it wishes, that definition will not impact the laws or practices of the provinces, no?

Also from the globe, Harper said that: ""Parliament has the right to decide the marriage issue. There is nothing in this judgment that suggests otherwise. The court was asked repeatedly by the government, by intervenors, by all kinds of people, to make that ruling. The court did not make that ruling. The court had a chance to uphold the previous lower-court rulings and instead preferred to remain silent."

He said that there is nothing in Thursday's opinion to force jurisdictions which do not currently allow same-sex marriage to alter their position. "

Given that, I can understand why a federal definition of marriage hurts the provinces if they are opposed to it, but only in terms of popular opinion, not legally. I can't see why Alberta feels that it can't define marriage however it likes and use the notwithstanding clause if challenged by the federal government, just like Quebec did. A confusing issue regardless, to be sure.
posted by loquax at 2:12 PM on December 9, 2004


I'm not keeping score, but Canada is totally winning.
Well, I am keeping score, and things like this make it more and more attractive. I've said it before, and i'll say it again: Canada is the America we should be.

Wouldn't places like Alberta have to recognize marriages performed elsewhere where it was legal, even if they never legalized it?
posted by amberglow at 2:25 PM on December 9, 2004


So the Supreme Court, as I understand it, is saying that while the federal government can chose to define marriage as it wishes, that definition will not impact the laws or practices of the provinces, no?

On my reading of the decision (a reading that the Alberta government's reaction seems to support) the court is not saying that a federal definition of marriage would not impact any laws or practices of the provinces. Rather, it is saying that a definition "pertains to the legal capacity for civil marriage", and this is properly a federal area of jurisdiction. When the court says the effects on the provincial sphere would be incidental, it means that the effect on provincial jurisdiction would be incidental. Such a federal law would not impact the "core of the power" given to the provinces with respect to marriage because the core of that power is not the power to define marriage as such - as the court recognized today, S.91(26) clearly gives that power to the feds. The core of provincial power re: marriage is to regulate the "solemnization of marriage". As transient points out above, this would include specifying marriage procedures, who can perform the ceremonies, licensing regulations, etc., but not the definition of "the legal capacity for civil marriage."

The court also rejected the provincial argument that marriage falls under provincial jurisdiction because it is really a matter of property and civil rights. In declaring that the proposed law would be intra vires the federal Parliament, the court upheld the S.91(26) notion that marriage is a distinct category, not merely a sub-division of 'property and civil rights'. A province can still regulate the disposition of property within a marriage (is it divided 50-50, etc.), but it cannot determine who is allowed to be a party to that marriage.

I think your quote from Harper indicates that he supports this general interpretation of the court's meaning, though he (and you) rightly point out that in refusing to answer question 4 the court chose not to compel provinces to change their policies. Parliament, not the courts, must decide. However, the effect of the decision is to say that if Parliament does legalize same-sex marriage, which it is allowed to do under the constitution, it would be binding nationwide, because definition of marriage is a matter of federal jurisdiction.
posted by Urban Hermit at 2:55 PM on December 9, 2004


However, the effect of the decision is to say that if Parliament does legalize same-sex marriage, which it is allowed to do under the constitution, it would be binding nationwide, because definition of marriage is a matter of federal jurisdiction.

Urban Hermit - Thanks, I think you have the right reading of the decision after all. I appreciate you clarifying it. So it really will come down to a free vote in parliament. Wow. Much more significant than I thought in that respect.
posted by loquax at 3:06 PM on December 9, 2004


Wouldn't places like Alberta have to recognize marriages performed elsewhere where it was legal, even if they never legalized it?

Amber, the way I understand it, Alberta would recognize marriages performed elsewhere and would be required (at a minimum) to permit civil marriages for all. The distinction (according to the CBC) is that no one has the authority to enforce "solemnization" of a marriage (for instance, for a church opposed to same-sex unions wouldn't be forced to perform a same-sex wedding ceremony.) Religious freedom trumps just about everything.

I think that caveat is a bit of a face-saving measure in that it lets more conversative groups feel like they won something. Realistically, who would want to be married in a church that disapproved of the wedding?
posted by 327.ca at 3:16 PM on December 9, 2004


But isn't that already in place--the separation bet. church and state? Civil marriage is all that's being discussed in court, no? not any religious ceremonies.
posted by amberglow at 3:33 PM on December 9, 2004


Sure, it's very much in place. Among other things, this opinion from the Supreme Court is simply restating that no church would be forced to perform a marriage that ran counter to its doctrine.
posted by 327.ca at 3:58 PM on December 9, 2004


Although presumably there would be religious ceremonies as well. The United Church, for one, supports same-sex marriages.
posted by transient at 4:28 PM on December 9, 2004


I'm shocked, shocked! To think that the Other America would even imagine allowing every Tom, Dick, and Harry to marry each other. It will degrade all married Americans, who will now be forced to think of hard bodied men thrusting into each other every time they look at a wedding ring.

Henceforth I, for one, will no longer be referring to Canadian Bacon as such, since I can longer say the "C" word. This will cause me great hardship as I will have difficulty with my local pizza parlor when I order: "A large heterosexual bacon and pineapple." But desperate times call for despot measures.
posted by Secret Life of Gravy at 4:52 PM on December 9, 2004


Move to Vancouver! It's not cold there.

No, it's just miserably wet all the time.

Thanks, but I'd rather have at least a couple months of real sunshine. (Kidding! Kidding! Please let me in. Please.)
posted by Civil_Disobedient at 8:17 PM on December 9, 2004


Is anyone else just profoundly depressed that the USA is, at this point, no longer the bastion of personal liberty and freedom we were all brought up to believe it is?

Americans really need to do something about all that propaganda in their schools. When exactly was the US a "bastion of personal libertiy and freedom"? Is that a song lyric, or something?
posted by Hildegarde at 9:17 PM on December 9, 2004


who will now be forced to think of hard bodied men thrusting into each other every time they look at a wedding ring.

I dunno, I think of that sort of thing all the time. But then, I'm Canadian, and we're obviously depraved Satan-worshippers up here.

I'd be willing to bet that the honoured justices declined to answer that question after a long hard talk amongst themselves. It seems clear that they (and indeed the entire Canadian judicial system) find the current situation appallingly discriminatory-- but I think they recognize that they're only nine people, and they (rightly or no) felt that a decision of this magnitude couldn't rest solely on their shoulders. It should ultimately be decided by the elected government of Canada-- as it now, doubtless, will be. Hell, two days ago Cottler (Minister of Justice) announced that he was introducing a bill right after Parliament's Christmas break to formally legalize gay marriage.

That's marriage, not this civil union bullshit.

The court's covered all the bases: yes, gay marriage is within federal jurisidiction (which only makes sense; who collects and manages the taxes and taxation systems, after all?), and no, the religious crackpots can't be legally forced to marry any hellbound homos. (However, I don't see that lasting more than a few years-- someone will make a legal challenge on that issue, if only to make the point).

Thing is, once this is legal, there's no going back. Canada, unlike the USA in recent years, has (to my knowledge-- correct me if I'm wrong) almost no history of revoking rights like this once granted. (Yes: internment of Japanese in WWII, forced sterilization of developmentally delayed people in the early 20th century). I think the court recognized that.

In some ways, though, I wish that it hadn't come to this. In some ways, I wish that a challenge had made it to the SCC, and they'd rendered a similar verdict to the recent ones in Ontario, BC, Yukon, etc-- forcing the government to accept it, or rewrite the law to specifically exclude homos. That wouldn't have gone over terribly well up here.
posted by dirtynumbangelboy at 5:04 AM on December 10, 2004


there can be no doubt that literally everything about Canada, barring its climate (SO EFFING COLD),

dude, you live in new york, most of canada gets the exact same weather you do... except our summers are hotter. god it gets way too hot here. must be all our sinning and debauching - canada, it's hell on earth ! but only from june to september.
posted by t r a c y at 5:53 AM on December 10, 2004


the religious crackpots can't be legally forced to marry any hellbound homos. (However, I don't see that lasting more than a few years-- someone will make a legal challenge on that issue, if only to make the point).

I hope like hell that the churches aren't forced to marry against their will. I don't want any mixing of state and religion.
posted by five fresh fish at 9:56 AM on December 10, 2004


I hope like hell that the churches aren't forced to marry against their will. I don't want any mixing of state and religion.

I agree with you. But I'd be willing to bet that some fucking idiots on the lunatic fringe of gay activism will try and mount a Charter challenge to force churches (that ordinarily wouldn't want to) to mary them.
posted by dirtynumbangelboy at 10:16 AM on December 10, 2004


And ol' Ralphy has stated that he intends to battle it. Dammit, why does he always have to make sure Alberta lives up to its redneck image?
posted by five fresh fish at 9:22 AM on December 11, 2004


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