Just how much of a chartered right is gay marriage anyway?

Jan 26th, 2005 | By | Category: Ottawa Scene

“You shall love your crooked neighbour/With your crooked heart.” That is what the dead poet W.H. Auden wrote in “As I walked out one Evening.” And whatever exact private moments inspired these two especially memorable lines, they also seem to be describing something about how democracy works in Canada today.

That at least is what the latest blip in the Canadian gay marriage debate might suggest. Whether Auden himself would have actually wanted to be legally and properly married to his long-time partner Chester Kallman remains doubtful. But if he does have some inklings about what is currently going on in Canada, wherever he is now, he might be a little amused.

Conservative Party leader Stephen Harper has apparently been inspired by the recent reservations about the Martin government’s proposed legislation, from eminent officials of the Catholic church in Canada and the Sikh community in India (which community in Canada also has four members in the current Liberal caucus in Ottawa, including the minister of health). In the unfolding gay marriage debate, Harper has now quite firmly put his money on extending rights to some form of legal civil union to gay couples, while stopping short of revising the traditional definition of marriage between men and women.

Harper argues that this is in fact where the democratic majority of the Canadian people falls on the issue. And in the pure world of principle and political theory he is probably right. But in the real world of political practice in Ottawa, the good advice about loving our crooked neighbours with our crooked hearts probably also means that the essential thrust of the Martin minority government’s current gay marriage legislation (which does effectively revise the traditional definition of marriage) will finally become the new law of the land.

Even if you are not W.H. Auden, all this can be amusing and ironic, and so forth – and most likely harmless enough in the end, especially considering that the very vast majority of the population is not and is never likely to be gay. But in the final phases of the legislative process, it may be worth taking a certain degree of inspiration from some Canadian Catholics and Sikhs, and looking briefly at the deeper, more principled dimensions of the real issue.

The prime minister and his government have increasingly staked their case on a fundamental argument about “rights.” Canadian courts, that is to say, have now effectively decided that to deny the blessings of the legal institution of marriage to gay Canadian citizens violates the Charter of Rights and Freedoms in the Constitution Act 1982.

As opponents of gay marriage will rightly protest, that is not exactly what the Supreme Court of Canada said in its recent ruling on the issue. It said that this ultimately does remain a matter for Canada’s democratically elected Parliament to decide (and thus in the very last instance for the people of Canada who elected the Parliament, one might also deduce).

Paul Martin, however, can point to decisions by lower-court judges in seven Canadian provinces and one territory that do effectively link gay marriages and the 1982 Charter. He has now made clear in front of the TV cameras that in his view this is a straightforward matter of minority rights in the modern Canadian constitution. And he is prepared to go to the people of Canada in a fresh election, if Parliament chooses to bring his minority government down on this fundamental issue.

All this may sound high-minded, and on the side of all the angels of the “free and democratic society” that the Constitution Act 1982 also quietly says is what we have in Canada today. Yet as the Supreme Court has made clear enough, Martin’s minority government is skating on thin constitutional ice at best. And that may help explain why the prime minister also seems to be saying well maybe about the fresh election – if necessary but not necessarily, and all that.

The Canadian Charter of Rights and Freedoms is a comparatively recent and youthful descendant of a noble line of such fundamental statements of free and democratic human rights, whose modern history stretches back to the late 18th century. The classic points of departure are the Bill of Rights attached to the American constitution of 1789, and the declaration of the Rights of Man and of the Citizen from the first optimistic stages of the French Revolution in 1789.

You can of course exhaustively search both documents without finding anything that suggests any particular right to gay marriage. But that was then and this is now. Humanity has made some further progress since the late 18th century. Citizens of democracies have or ought to have more rights nowadays than they used to. That is one part of what “progress” and “freedom” and “liberty” (to say nothing of “equality” and “fraternity” – and certainly “evolution”) are all about.

Even so, it is almost equally hard to find any particular right to gay marriage in the much more recent Universal Declaration of Human Rights, that accompanied the establishment of the United Nations in San Francisco in 1945. Article 16 of the Universal Declaration does say that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” But the assumption is that the men will be marrying the women, and vice-versa. (The article does not say “without any limitation due to sexual orientation,” and it does say “Men and women,” not just “persons.”)

It is similarly not all that easy to find language that can be unambiguously extended to include a right to gay marriage in the still more recent Canadian Charter of Rights and Freedoms of 1982. Just look at the most relevant part of the Charter, section 15, on so-called equality rights: “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.”

A judge, or a politician, or even you or I, might read this to imply a particular right to gay marriage. Or not. Just on the face of the language itself, you could argue for this kind of reading. But there does not seem anything to suggest you absolutely have to – legally and constitutionally. And in its December 9, 2004 ruling the Supreme Court of Canada, in all its wisdom, quite deliberately and explicitly abstained from taking any position on this issue.

One might argue about the exact meanings of the Court’s reasons for abstaining. And it does allow that the Martin government’s proposed gay marriage legislation “flows from” section 15 of the 1982 Charter of Rights and Freedoms. But it also seems clear enough that the Court’s own ultimate position flows from the kind of prudent and pragmatic traditions of Canadian legal statecraft it shrewdly drew on in the political hi-jinks that preceded the Constitution Act 1982 itself. And the most significant point the Court does seem to be making is that the question of gay marriage in Canada today is not so much a matter of rights, as a matter of public policy.

As the judges put it in a somewhat different but related context, mid-way through their December ruling, “it is not for the Court to determine, in the abstract, what the natural limits of marriage must be.” And the decisive legal point about the Martin government’s legislation, with respect to the Charter of Rights and Freedoms, is that it “embodies the government’s policy stance in relation to the section 15 (1) equality concerns of same-sex couples.”

So the question of gay marriage in Canada is not finally going to be decided in the courts – as it would be, if it were strictly and unambiguously a matter of rights, “in the abstract.” It is going to be decided by what is supposed to be a “free vote” (i.e. a vote in which members do not have to vote as their party tells them, but can consult their own consciences and readings of their local constituents’ wishes), in the democratically elected Parliament of Canada.

If the current institutions of Canadian parliamentary democracy bore a more exact resemblance to some simple sum of the many different voices of the people of Canada, from coast to coast to coast, Stephen Harper’s policy of extending rights to some form of legal civil union to gay couples, while stopping short of revising the traditional definition of marriage between men and women, probably would be the most likely prospect for winning any comfortable majority vote.

(It is also true that 100 Canadian law professors have just written an open letter to Mr. Harper, saying that he is wrong to suggest Canada can now retain the traditional definition of marriage, without invoking the mysterious “Notwithstanding Clause”in section 33 of the Charter of Rights and Freedoms. Because, the law professors say, the lower courts in seven provinces and one territory have already decided that the traditional definition of marriage does violate the Charter. Yet if this really is the deepest truth, why didn’t the Supreme Court just say so in December – instead of declining to get into the issue at all? What this learned intervention finally makes some people of Canada think, no doubt, is just that any Rule of the Law Professors would be not much different from the Rule of the Ayatollahs in Iran. And mercifully it is still the Supreme Court and not the law professors who do constitutionally get to decide such things in Canada.)

In any case, as matters stand (and setting all the law professors aside, end to end), a considerable assortment of crooked neighbours and crooked hearts looms between the real world of Canadian democracy, and the still another particular abstract ideal to which the leader of the Conservative Party of Canada now seems to be pointing.

It would be rash to make any too-firm predictions as yet. The truest conclusion of the story must still await the results of the free vote in Parliament. It seems likely enough that a majority of the people of Canada today do have some sympathy for the Catholic Archbishop of Toronto’s argument that none of us can “say with certainty what the social outcome of a redefinition of marriage would be.” Many no doubt agree with his urging that it would be best to move very gradually and carefully on this issue, and prudently take more time to figure out just what it is our free and democratic society wants to do with the institution of marriage in the 21st century.

Yet as an altogether practical, and even pragmatically prudent matter, the time for the free vote in Ottawa on the Martin minority government’s same-sex marriage legislation is going to come soon enough. The prime minister seems quite clear about that. At the height of democratic principle all of us ought to be deciding which side of the vote we’re on. (So we can advise our members of parliament about how we feel, and give them the guidance they currently need, etc.)

And just in the abstract again, the big trouble with standing on Stephen Harper’s side is going to be that you will also be standing on the side of those who do feel that any extension of any kind of gay rights is just “unnatural,” and all that. The way the vote will most likely work at least, there won’t be any nicely nuanced positions in between. And it is probably true as well that the majority of all the people of Canada does want to reassure the minority gay people of Canada that they do have just as much legal and constitutional right to exist and live in peace, under all due protection of the rule of law, as the majority straight people.

That finally seems to be what the gay marriage debate comes down to, in the real world where we are all too busy to pay too much attention to anything. Straight people who have lived through painful divorces, in a time when the traditional institution of marriage has already morphed into something considerably different than it used to be – even in the more conservative United States of America next door – may wonder just how many same-sex couples really do want to get married, just like everyone else. But that somehow does seem to be what the question of principle has become. And nowadays no doubt Canada everywhere is a somewhat more liberal country than the United States, and not altogether averse to making the point clear.

There was a time when a fervent and overwhelming Catholic majority in Quebec could have been counted on to make anything like the present Martin government’s gay marriage legislation altogether politically impossible in Canada. But here as elsewhere times have changed. The prime minister himself, as he has pointed out, is a practising Catholic. But his minority government in Ottawa is now asking Canadians to change with the times.

It still seems a pretty good bet that the majority of the elected members of parliament will finally want to change with the times too. They will want to show that the free and democratic society continues to progress. And, when all is said and done, that they do love their crooked neighbours with their crooked hearts. Maybe you have to develop such understandings in a diverse cold country of vast distances, just to survive. (And, as all our local television sets have lately made clear, it is the middle of winter in Canada right now, everywhere.)

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