The Supremes Speak

[bcholmes]

While people seem to be touting this as a victory, it actually looks pretty wishy-washy. They haven't said that refusing to allow same-sex couples to marry is unconstitutional. The Globe (which may require subscription) has a pretty good summary.

Background: Chétien asked the Supreme Court three questions (which Paul Martin later amended to four) to figure out how the government should proceed with respect to same-sex marriage. The Supreme Court essentially said, "here are some lines that you can't cross (like you can't force Catholic churches to perform same-sex marriages) but Parliament should be setting policy."

The four questions are:

1. Does the federal government have the authority to define marriage?
   (Full question: Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?)
2. If so, is our proposed bill constitutional?
   (If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?)
3. Can religious groups constitutionally refuse to perform same-sex marriage?
   (Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?)
4. Is is constitutional to consider marriage a union of one man and one woman?
   (Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?)

The answers appear to be:

1. Yes and no
2. Yes
3. Yes
4. We ain't sayin'

Comments

[hobbitbabe.livejournal.com]

So Paul Martin (or his advisors, whoever added the 4th question) was hoping to make the Supreme Court force them to do the right thing (as I think the Supreme Court did with abortion, if I can remember that long ago).

And the next steps are to get the bill ready, introduce it, debate it, and have a free vote. My MP can't vote. Who else should I be writing to, then?

[bcholmes.livejournal.com]

Your MP can't vote? That's a new one on me. What's that about?

Also, why would you say that there should be a free vote?

I guess the best contact would be the Minister of Justice (The Honourable Irwin Cotler)

[hobbitbabe.livejournal.com]

1. Because he is the Speaker of the House.
2. I didn't mean to say that there should be a free vote. I understand that to be the Prime Minister's intention.

[bcholmes.livejournal.com]

D'oh! Of course. You mentioned that in your journal, recently, too.

[hobbitbabe.livejournal.com]

Maybe I should also be writing to whoever seems to have decided that for the Liberals it would be a 2-line whip and not a 3-line whip. Who are these cabinet members who might oppose it?

[bcholmes.livejournal.com]

Interesting. I wasn't aware of that. 2-line whip isn't quite free vote, but yeah.

You could start with the Chief Government Whip and go from there.

Re: The Supremes Speak

[pir-anha.livejournal.com]

i think it's a qualified victory, not a 100%, "bring on the champagne" one -- but still a victory. heck, i consider martin's attitude now to be a victory compared to where he stood not too long ago. as long as same-sex marriage becomes legal federally in the very near future, i don't really care. i am so tired of all those evil anti-gay amendments in the US that this just feels a whole lot better to me.

i find the reasoning around not answering 4 interesting, and it makes me wish i could've been a fly on the wall during the deliberations.