3 min

Smart Supreme decision unleashes political firestorm

Court doesn't give Martin an easy out

Credit: Joshua Meles

The Supreme Court Of Canada ruling on same-sex marriage that was supposed to bring some clarity to the issue has fanned the flames of hell-raising politicians in the lead up to a Parliamentary vote on the issue.

The rightwing Christian group Focus On The Family has joined Alberta Premier Ralph Klein in calling for a national referendum, encouraging supporters to contact MPs and organize events to help save traditional marriage.

Klein, claiming a “moral” opposition to same-sex marriage, says he will do whatever he can to defeat the proposed legislation, including launching a national letter-writing campaign. His is the only province or territory in Canada actively opposed to equal marriage.

Meanwhile, same-sex marriage advocates are trying to get backbench Liberal MPs onside for the free vote, expected some time in 2005. With most of the NDP, the Bloc Québécois and the Liberal cabinet expected to support the bill – and the Conservatives expected to vote against it – it’s these wishy-washy Liberals that hold the balance of power.

“There is still a lot of work to be done and it’s not really a victory until we have the legislation passed,” says Canadians For Equal Marriage’s Cicely McWilliams.

Even if the legislation doesn’t pass, same-sex marriage will remain available in the seven provinces and one territory where courts have ruled it legal. Most experts agree that only a federal government willing to wield the rarely used notwithstanding clause could undo that. With Tuesday’s Newfoundland ruling, only Alberta, New Brunswick, PEI, Northwest Territories and Nunavut fail to offer same-sex marriage.

“I think it is still desirable for Parliament to act,” says Douglas Elliott, the lawyer who represented the couples from the Metropolitan Community Church Of Toronto at the Supreme Court hearings. “I think its important to the long-term social legitimacy that Parliament be seen as the last social actor to pronounce on the matter.”

With the House Of Commons in recess until Mon, Jan 31, the legislation is expected to be introduced in February. Carolyn Bennett, Minister Of State For Public Health and MP for Toronto’s St Paul’s riding, says the conversations Canadians have over the holidays will be crucial in educating people who are skeptical of queer relationships.

“We do have to figure out a way to mobilize the youth,” says Bennett. “If they have nothing else to say to their parents or their grandparents, this is a conversation I expect them to have over the Christmas holidays.”

Meanwhile, Conservative Party members are trying to find loopholes.

MP Vic Toews questioned Justice Minister Irwin Cotler about the results from the Supreme Court, claiming that they left the door open for Parliament to uphold the traditional definition of marriage. Cotler said it doesn’t. Conservative Party Leader Stephen Harper has amendments up his sleeve, which he claims would recognize “traditional

marriage without taking away from the rights of same-sex couples.”

“Harper’s comments were simply bizarre,” says Elliott. “He is clearly making statements that he considers politically attractive to his base but what he’s proposing to do is legally impossible.”

Says McWilliams: “He’s trying to make Canadians think that he would not have to use the notwithstanding clause and that somehow the Supreme Court left that open. By not responding to the fourth question the court was saying that the lower courts have already ruled on this.”

Others agree that the Supreme Court decision can only point toward equality.

“We were naturally delighted and pleased by the court’s recognition of the need to balance same-sex marriage and religious freedom,” says Joanne Cohen, coordinator of the Coalition Of Canadian Liberal Rabbis. “Families come in all shapes and sizes, and contribute equally to the social fabric of Canada, with no evidence of any harm to religious or societal interests, as claimed by opponents of same-sex marriage.”

While religious groups were recognized by the Supreme Court decision as being able to choose whether or not they would conduct same-sex weddings, the issue of whether civic officials can refuse is under debate.

“I think at this point it would be inadvisable to press secular justices of the peace and marriage commissioners to perform gay and lesbian marriages against their religious conviction. Yes, they are representatives of the state but so are doctors, and doctors have the right to choose whether or not they perform abortions,” says Cohen.

Anna Willats, a lesbian professor at George Brown, wonders where that argument will lead.

“‘I bashed her because my religion says it was okay.’ It gives a tool to homophobes,” says Willats. “Why freedom of religion gets equated with freedom of discrimination I don’t know. Your freedom of religion should stop when you sanction discrimination against any group.”

Willats says that she is opposed to the institution of marriage generally, and worries that a marriage victory will lead to complacency amongst gay and lesbian activists.

“We win some significant gain in the courts or get legislative improvement and then everyone stays at home and thinks, ‘Now we don’t have to do anything. Now we’re equal.'”