Canadian Supremes give gay marriage A-OK
A big, if predictable, step forward for individual rights as The Supreme Court of Canada gives gay marriages the A-OK.
The Supreme Court complicated Liberal plans by refusing to answer whether the current common-law definition of marriage, which excludes same-sex couples, is constitutional.
The court said it did not want to create a chaotic situation for couples who have already taken advantage of provincial court appellate decisions permitting same-sex marriages.
“The government has clearly accepted these decisions and adopted the position as its own,” the court said.
The court opinion–arising from four questions referred to it by the federal government–forces the Liberals to go ahead with their proposed legislation without the comfort of a Supreme Court judgment that current same-sex marriage prohibitions are unconstitutional.
Opposition Leader Stephen Harper said that the court’s opinion reflects his party’s position that the issue must be settled in Parliament and not in the courts.
He told reporters in Ottawa that the court had “plenty of chance” to define marriage but chose not to.
“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.”
I think that it was totally classy and pretty Canadian and good for the government to pre-emptively refer to the Supreme Court on the question of whether gay marriage was compatible with the constitution.
It was though, quite a bit more classy of the Court to refuse to answer the fourth question–was it required by the constitution–while lower courts simultaneously handled the decision. Yay for the Supreme Court respecting the workings of the judicial system.
Harper must be feeling nice that he gets to look classy since the court basically agreed with him and that his basic argument about respecting the institutions of government was echoed by the courts. He loses some class points by giving sound bites that imply that the courts have no place on such an issue, since they clearly do.
There isn’t much a dude like me can say about the issue of gay marriage per se that hasn’t been said better by others. As a pre-emptive act against those who might use this court decision to display how much more enlightened we are than our neighbours to the south, I’m going to post the Andrew Sullivan quotes that I was saving in a draft for another election exit-poll wrap-up that seems passe now; some of it may seem irrelevant to the above case but I feel like posting all the parts I excerpted earlier (I feel more comfortable about liberal blockquoting (har har) a couple of weeks after publishing anyway); I’ll bold the parts that mostly germane to the topic of moving rights (and public support for them–still important territory in Canada too) forward broadly.
But resist [blaming the Democrats small but decisive loss on the push for equal marriage rights] we should, not least because it is morally cowardly. We should also resist it because it is untrue. By any objective measure, the civil rights movement of this generation has accomplished more in a short time than any civil rights movement before it. Yes, fear of homosexuality and the apocalyptic rhetoric of some religious right leaders propelled some rural and suburban voters to the polls. Yes, the way in which homosexuality was deployed as an issue by a whole array of Republican candidates was obvious and, at times, repulsive. In Ohio, the critical state, that may have made a difference. But, nationally, the trend is toward approval of gay unions, not away from it–and that can help Democrats, provided they don’t shy away from their convictions.
There were anti-gay union ballots in three swing states. Kerry won two of them. In eight out of eleven states with gay-union amendments, the increase in Bush’s share of the vote compared with 2000 lagged behind the increase in his share of the national vote. Moreover, the broader climate showed remarkable acceptance of the union rights of gay couples. According to the exit polls, a full 62 percent of Americans favor either full marriage rights or civil unions for gay couples. Only 35 percent want what eight state amendments and the Federal Marriage Amendment (FMA) promise: no legal protections whatsoever. In the week before the election, the president himself came out in favor of civil unions.
When you look at the context, what is striking is how weak the backlash was, not how strong. Marriage rights for gays were unheard of two decades ago. Only an eleven-year span marks the length of time since the first court decision for marriage equality came down in Hawaii. That effort failed, of course. Actual marriage equality in America has been around for a mere six months. Six months. Backlash is not a rarity in civil rights movements. It is the norm. If the backlash against equal marriage rights extends to only eleven state bans a mere six months after the critical breakthrough, then the real story is how quickly those rights have become a part of the landscape, not the reverse. In Congress, the FMA fizzled. In Massachusetts, the epicenter of the struggle, the legislature tilted on November 2 toward those who favored marriage equality, rather than toward those who voted against it. In California, the civil unions that will come into effect next year as a result of legislation will carry with them almost all the rights that the state can apply to same-sex relationships, and the Republican governor has endorsed them.
Not only is the movement for marriage equality not on the brink of reversal, it is poised to grow stronger. The younger generation supports gay unions in far higher numbers than any other age group–and is more likely to vote Democratic. Gay rights, in other words, (as opposed to, say, Social Security) is one issue on which Democrats actually have a position that will become more popular in the years ahead. Bush understands this. And that is why the ugly appeal to homophobia was conducted at the grassroots level and under the national radar and why Bush’s own rhetoric rarely diverged from positive comments about marriage to negative ones about gays or gay couples.