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Renewed Attacks on Same-Sex Marriage

Will They Work?

Queer Quest by Kevin Alderson, Ph.D., R. Psych. (From GayCalgary® Magazine, April 2006, page 46)
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“The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. . . . Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society”(George W. Bush, 2004).

There is a resurgence of interest in same-sex marriage (SSM) in both Canada and the United States. Within the past two weeks, I have been interviewed by a reporter with The Advocate magazine, and both me and co-author for our book, Same-Sex Marriage: The Personal and the Political, were asked this week to provide information to a Page working for the United States House of Representatives in Washington, DC. In response, I am pleased to again be co-authoring with Prof. Kathleen Lahey, this time for Queer Quest.

Why the resurgence? As you can imagine, not everyone was pleased with the parliamentary decision made under our former liberal government that legalized same-sex marriage throughout Canada, effective July 20th, 2005. I remember the former Pope warning Jean Chretien not to do it, and I remember some leaders of other countries warning Paul Martin not to do it. Nonetheless, they did it. You have to give our former Canadian leaders a thumbs-up for having the nerve to pass legislation that protects equal rights to our queer community, despite opposition from elsewhere. The opposition – by the way – is not always far away.

George W. Bush called for a ban on same-sex marriage in 1994 [1], and many states have subsequently adopted Defence of Marriage Acts (DoMAs) that define marriage as only between a man and a woman. You don’t have to look as far as the U.S. to find opposition to SSM, however – simply turn your head to Ottawa. Prime Minister Stephen Harper has made his views and the views of his party clear from the start – they are conservative on many layers.

Okay, so what does the future hold for same-sex marriage in both Canada and the United States? Let’s begin with the U.S. In the U.S., marriage is controlled by both federal and state jurisdictions. In effect, their federal government does not have the power to change the laws regarding “capacity to marry” – in other words, they cannot decide for their country whether same-sex couples should be allowed to marry or not. The federal government can only affect how same-sex couples are treated when it comes to federal issues, such as for purposes of federal income taxation. Every U.S. state maintains the power over who can and cannot marry, so for same-sex marriage to become legal throughout the U.S., it would require something like a domino effect to occur.

A domino effect in the U.S. is currently unlikely. At this point in time, Massachusetts is the only state that currently permits same-sex marriage. Although there are same-sex marriage cases working their way through the courts in five other states, it may still be several years before any final decisions are produced. In the meantime, the number of DoMA laws promoted by panicky politicians grew to over 40 after the 2004 U.S. elections. Although these laws exist for the sole purpose of trying to prohibit same-sex marriage, they all try to do it without actually using words like “lesbian,” “gay,” or even “same-sex.” Some state courts have ruled that some DoMAs do not have the desired legal effect, but again, it will take a good 5 to 10 more years to clear the road to same-sex marriage even when they can be litigated.

The picture in Canada is very different. It is true that Stephen Harper has attempted to take political advantage of the conservative and religious backlash to Canadian same-sex marriage. He actively sought out support from those groups on the promise that he would reopen the discussion of SSM in the House of Commons, and would seek repeal of the new federal civil marriage law that extended SSM to the whole country just last year. Can he and his government, however, change what has already been written into national law?

Now it gets interesting. Of course governments can change laws, and they do all the time. But this law providing SSM was enacted because of court challenges to the Canadian Charter of Rights and Freedoms. Long before the federal government decided to enact the new civil marriage bill in 2005, queers in a total of nine provinces and territories had already won the right to marry through court decisions, because Charter challenges brought in each of those jurisdictions resulted in court orders that permitted them to marry beginning in 2003.

These court orders opening up marriage to same-sex couples were not just whimsical court decisions that appeared out of nowhere – they were squarely based on the equality provisions in section 15 of the Charter of Rights, which, since 1995, the Supreme Court of Canada has ruled protect queers from discrimination just like they protect other minority groups. In addition, in December 2004, the Supreme Court of Canada added its weight to all these court cases in a strongly-worded judgment that advised the federal government that its proposed new civil marriage bill – extending same-sex marriage to all the other parts of Canada - was constitutionally valid. The Supreme Court concluded that same-sex marriage was unquestionably “consistent” with the equality guarantees of the Charter, and spoke in affirming language of the many provincial and territorial decisions that had already been reported. Indeed, in its advisory decision, the Court even refused to consider whether marriage could still be validly limited to just opposite-sex couples, because the Court said that it did not want to issue an opinion on the many rulings on that point (all of which said no) that had already been issued by those provincial and territorial courts.

Given the strength of the many court rulings that have already repeatedly established that the old prohibition on same-sex marriage violates the Canadian Charter, Harper is not likely to be able to actually change the law. There are two basic reasons for this:

First, the only constitutionally valid way to abolish same-sex marriage would be to get enough parliamentary votes to invoke the notwithstanding clause of the Charter (section 33). This clause lets Parliament pass constitutionally invalid legislation ‘notwithstanding’ the fact that it is constitutionally invalid – but only for a period of no more than five years. This is not likely to happen: Throughout the last election campaign, Harper repeatedly insisted that he would not use the notwithstanding clause, but would change the marriage laws with a bare majority vote. Even if he were to change his position on this, and were to try to invoke the notwithstanding clause, it is extremely unlikely that his minority government could collect enough votes to do so.

Second, if the Harper government were to try to repeal the new civil marriage law with a bare majority vote in Parliament, there is no doubt that the many people who are either already married or who want to have the right to marry would immediately turn to the courts to challenge the new law – and these would still be the same courts that had already ruled that denying queers the right to marry violates the Charter in the first place. Furthermore, these court challenges would have an additional target – the failure to validly invoke the notwithstanding clause to protect the repealing law from Charter challenge for a period of five years. This would simply mean that the federal government would become embroiled in protracted litigation all over again, and at another huge price. Whichever way the issue might play out, the Charter has been set up to prevent disgruntled politicians playing on backlash sentiments from doing what Mr. Harper apparently thinks he should try to do.

As we wrote in 2004, “Queer marriage has come to Canada to stay.” [2] We live in a country that is now the world leader in the protection of queers from violations of their human rights. Indeed, Canada is the only country where same-sex couples from around the world can come to visit us, marry, and return to their homelands, possibly to seek legal recognition of their Canadian marriages in their home countries. If anything, then, Canada’s policies on same-sex marriage will no doubt reinforce and perhaps even speed up the domino effect worldwide as same-sex couples eventually come to be able to marry in many more places. As psychological research has shown for many years, queers are loving people, and are as capable of showing committed love when compared to heterosexual couples. We are counting on other Canadians to be loving as well, and to refuse to be taken in by the backlash politics of the Harper government.

Dr. Alderson is an assistant professor of counselling psychology at the University of Calgary who specializes in gay and lesbian studies. He also maintains a private practice. He can be contacted by confidential email at alderson@ucalgary.ca, or by confidential voice mail at 605-5234.

Kathleen Lahey is Professor and Queen’s National Scholar at the Faculty of Law, Queen’s University. She can be contacted at kal2@post.queensu.ca.

References:

1) Bush calls for ban on same-sex marriages. (2004, February 25). Retrieved March 30, 2006 from http://www.cnn.com/2004/ALLPOLITICS/02/24/elec04.prez.bush.marriage/
2) Lahey, K. A., & Alderson, K. (2004). Same-sex marriage: The personal and the political. Toronto: Insomniac Press, p. 99.

(GC)



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