15 June, 2004Issue 3.3EssaysNorth AmericaPolitics & Society

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Gay Marriage in Canada

Thom Ringer

Unless the ruling Federal Liberal government is swept from office this summer, or capriciously changes its position – and neither occurrence is by any means impossible, unprecedented, or even unlikely – Canada will soon be among the few nations in the world to legalise gay and lesbian marriage. It’s an outcome Canada has slowly been approaching, one small legal step at a time. Indeed, ever since the Supreme Court of Canada interpreted the Canadian Charter of Rights and Freedoms as prohibiting discrimination on the grounds of sexual orientation in 1995, the extension of full equality to gays and lesbians, including partnership rights, has seemed to many observers a foregone conclusion.

The next year, the Federal government, taking its cue in part from the Supreme Court, amended the Canadian Human Rights Act to explicitly prohibit orientation-based discrimination. Equal partnership benefits for Federal employees followed soon after. The coup de gr√¢ce was the 2000 omnibus Act to Modernize Benefits and Obligations, which provided common law relationships, both opposite- and same-sex, with virtually all the same rights and responsibilities as heterosexual married couples.

Whether they remain partnerships, or acquire some other title, the legal difference between same-sex partnerships and heterosexual marriages is now largely a question of semantics.

But, in Canada as anywhere else, it is a question that in most countries, the question of gay marriage elicits strong opinions. A great many LGBT1 persons are concerned about the social, cultural and moral message implicit in calling their partnerships something less than marriages. What is being sought through the politico -legal quest for semantic equivalence, and what makes it so objectionable to its opponents, is a clear message from the powers that be, affirming that LGBT partnerships can be just as legitimate and just as deserving of full legal and social recognition as heterosexual marriages and official affirmation of the soci al, legal, and moral equivalence of LGBT and heterosexual marrirages. And with Courts in the provinces of British Columbia and Ontario refusing to uphold the heterosexual definition of marriage on constitutional grounds, and the Supreme Court of Canada now poised to strike down once and for all the Federal law defining marriage as the union of a man and a woman as early as 2005, this long-awaited and hard-won affirmation seems just within reach.2

For socially liberal, queer-positive Canadians, this achievement is, by and large, a cause for both pride and smugness to feel both proud and smug: pr oud ide that Canada is taking a stand on the liberal democratic principle of equality, and smug ness that we’ve outdone the World’s Greatest Democracy ‚Ñ¢ down south, or at least the overwhelming majority of its states.3 For socially conservative Canadians, who see it as yet another example of a liberal-dominated judiciary running roughshod over the democratic process and ignoring the voice of social conservatism, it’s a cause for concern. What it hasn’t been, though, to everyone’s surprise, is a cause over which Canada’s two major political parties (the Conservatives and the Liberals) have lined up and faced off made into a central election issue. Much like the anti-abortion lobby, the anti-gay marriage lobby in Canada is homeless, with neither major political party willing to give it open support. Why is gay marriage not an election issue of any priority in Canada, the way it seems likely to be in the United States this November? Why has Canada opted for this different way forward?

In order to give even tentative answers this question, it’s important to consider what’s distinctive, and what’s disappointing, about the conflict over gay marriage as it has played out in Canada. A comparison with the US is productive here because it shows the extent to which equality for gays and lesbians, with gay marriage as that project’s latest objective, has been pursued in Canada through legal rather than overtly political avenues.

The re are no question is hardly susceptible to simple answers to any questions in this debate. However, recent work by an Oxford University graduate student , Andrew Park , has demonstrated that the most significant difference between the Canadian and American situations is the absence of an organised, politically salient Christian conservative bloc in Canada. In the United States, the opposition to gay marriage is led largely by Christian conservative groups which routinely outspend the proponents of gay marriage by huge margins in their efforts to make their messages heard. But the comparatively limited prominence of faith-based opposition to gay marriage in Canada can only be part of the explanation. After all, Canada’s largest LGBT rights advocacy group, EGALE (Equality for Gays and Lesbians Everywhere), has a budget of less than C$400,000, and correspondingly limited access to political decision-makers. It is not as though a well-financed, highly organised and politically connected pro-gay lobby on the left is simply out-manoeuvering its disorganised rivals on the socially conservative right. So what else might account for the difference?

Disputes about gay marriage in Canada are often more apparent in the courts and the media than parliament. Since its inception, the gay rights movement in Canada has been intensely dependent on constitutional litigation, a strategy encouraged by a spate of late 1980s Supreme Court jurisprudence establishing sexual orientation as an actionable ground for discrimination under the Charter of Rights and Freedoms, Canada’s manifesto of its supreme principles of political equality and justice. By carefully grooming a pattern of Charter-based protections against discrimination, gay partnership activists have managed to pre-empt legislative initiative, establishing a clear directive from the Supreme Court that discriminatory legislation will not survive.

As a result, major advancements for gay partnership rights have come, by and large, not from the legislature, but from the courts. This highly successful litigation-based strategy has forced gay marriage’s opponents to frame their arguments in Charter language, a discourse already highly favourable towards individual freedoms, including those concerning intimate relations, and in which discrimination on the basis of sexual orientation is already anathema. And, since marriage is largely a Federal responsibility in Canada, individual local legislatures, no matter how opposed to gay marriage, cannot create customised local statu tes to protect the heterosexual definition of marriage within their own borders.

By contrast, in the United States, where jurisprudence on discrimination on the basis of sexual orientation is more equivocal , and where marriage is the responsibility of individual states, such a strategy would have been comparatively fruitless. But in Canada, litigation concerning gay marriage constantly pre-empts legislation on the same issue.

This phenomenon has worried many Canadians, not all of them opponents of gay marriage. As social conservatives and others in Canada emphatically point out, there’s something deeply unsatisfying about contentious moral debates, such as the one over gay marriage , being , mere fodder for Charter litigation initiated by special interest groups with a hold on the courts. Something seems lost when such issues are taken out of the purview of the elected legislature, and placed before unelected judges. This is what makes Canada’s litigious lumbering towards equality not only distinctive, but a little disappointing as well. As embarrassed as we are about our low voter turnout (fewer than six out of ten eligible Canadians tend to vote in national elections), it seems unfortunate, and even indicative of a democratic deficit, that an issue which excites and provokes so many Canadians is beyond even their indirect control through their elected members of parliament.4

But with so many Canadians outraged about judicial activism vis à a vis issues such as gay marriage, it seems baffling that neither the incumbent Liberal Party nor the rival Conservatives are eager to score political points and win over these disenchanted voters by promising boldly and consistently making election promises to resolve the issue central to their campaigns , once and for all, in an open vote in Parliament. For its part, the Conservative Party’s refusal to address make gay marriage a decisive election issue may be part of an effort to court social liberals who are attracted by the p Party’s fiscal policies. It may also be an effort to define the Conservatives as a more moderate party and thus, as one pollster put it, to “move into the same ideological space” as the incumbent Liberals. But it is intriguing that the Liberals, whose present leader, Prime Minister Paul Martin, not that long ago proudly and loudly declared that his government would not oppose gay marriage, are generally keeping quiet on the topic.

Or at least its leadership is. For a a number of Liberal MPs have made no bones about attempt to hide their opposition to gay marriage. Those representing socially conservative ridings, for instance, know that open support for gay marriage may cost them their seats in the upcoming election, and many of them resent the previous Liberal leader Jean Chrétien, who retired in 2003, for jeopardising their positions in an effort to promote his own moral agenda in the “legacy-making” days at the end of his tenure as Prime Minister. So it may be that the Liberal leadership is setting the tone in this election by keeping quiet on gay marriage not just to appeal to the Canadian voter, but to prevent a divisive and devastating revolt from within its own ranks. It will be interesting to see whether or not the Conservative Party is able to use this simmering conflict within its rival party to its own advantage in the upcoming election, and whether Martin will be able to keep a lid on his dissident candidates.

What is distinctive about the conflict over gay marriage in Canada? The progressive role that the courts have played; the way the pro-gay marriage lobby has, in the process, shaped the way anti-discrimination litigation can be used by minority groups to assert their interests; and the fact that so divisive a moral issue has failed to materialise as an election issue, at least in early June as this article was written. And what’s disappointing about the conflict? According to some observers, the answers to the second question are the same as those to the first: the meddling of the courts; the way special interests have pre-empted legislative debate by going through the courts; and the fact that neither of the two major rival parties is taking a clear stand on making a decisive election issue out of a subject an issue that matters to a great many Canadians. Ultimately, one thing is clear: the fact that gay marriage is a foregone conclusion in Canada is hardly proof of its widespread acceptance or, indeed, its permanence. Which means that, as proud as we socially liberal, queer-positive Canadians are about it, we may have more, and different, struggles ahead – struggles that may not become apparent until well after this election. the national election in late June.

Thom Ringer graduated from Trinity College in Toronto, Canada in 2003, and is now an MPhil candidate in politics at Balliol College, Oxford. His current research considers the responsibilities corporations owe to the communities they inhabit, particularly in politically unstable nations.

    Notes

  1. Lesbian/Gay/Bisexual/Transgendered. Unless the context indicates a specific meaning, I will use the terms LGBT, queer and gay interchangeably hereafter.
  2. In Canada, Federal law defines who can marry, while provincial law governs various technical aspects of marriage, e.g. who can perform marriage celebrations. The B.C. and Ontario Superior Court decisions create a confusing, but temporary, jurisdictional mess. They effectively invalidate as unconstitutional the opposite-sex requirement for marriage across Canada. However, these court decisions cannot force other provinces to actually provide marriage licenses to same-sex couples, as the directives contained in these decisions don’t apply to provinces which weren’t named in the litigation. Thus, only a spate of individual lawsuits in the remaining provinces or a decision from the Supreme Court striking down the Federal marriage law will provide for uniform access to marriage rights by gays and lesbians across the country.
  3. In the United States, as of 2004, same-sex marriage is recognised only in the S State of Massachusetts. Vermont grants civil unions to same-sex couples as well. A number of localities, notably San Francisco, have started issuing marriage licences, but these actions clearly run counter to state law.
  4. Social conservatives – or, perhaps, many others who find their views for the moment unrepresented by unelected judges – tend to see this as cause for belly-aching about judicial activism. But this emphasis on the wrongness of courts “making law” misses a crucial point: courts only make law where legislatures have either failed to make law, or failed to make it clear. The corollary of a hyperactive judiciary is often an indolent legislature, one which too eagerly abdicates from taking a stand on morally contentious issues by allowing courts to assume responsibility for them. Thus, castigating the courts for interfering in what seems rightfully the job of the legislature only makes sense when one is also castigating the legislature for not doing its job in the very first place.