Oh, and with respect to your comment about the original intent of the Charter - the Chief Justice of Ontario, who was one of the judges in the marriage case in Ontario, was the Attorney General of Ontario back in 1982. He helped broker the deal that led to patriation of the Constitution, so at least one of the drafters thinks that the Charter provides equality rights to gays, including marriage.
Northern Piper: In reverse order –
I’ll refrain from comment on conceptions of original intent under the Canadian Charter for the simple reason that I’m unfamiliar with it, its history and its place within the Canadian legal scheme.
I think what you’ve just described is, in effect, a finding of a “right to marry” in the Canadian Charter. Constitutional arguments in favor of gay marriage in the United States run on about the same lines: it is, in essence, an equal protection argument. I think it’s a bit silly of you to take issue with the shorthand characterization of that decision as a finding of a “right to marry.”
Finally, I think that, whatever the merits of the argument that the criminialization of sodomy led to a chilling of political activity by gays, no such argument can be plausibly made with respect to gay marriage. There is no “fear of a criminal charge” present when the state denies to gays the right to marriage; there is simply the denial of certain benefits. No one is discouraged from political activity on the basis of that denial (indeed, one would think that the denial of those benefits would actually cause more political participation on the part of gays as they seek legislation extending those benefits to them). Preventing gays from marriage may be a bad policy choice for any number of reasons, but the discouragement of political activity on the part of gays is not one of them.
But this is just incorrect. The courts haven’t found that anyone has the right to marry. What they’ve found is that the option to marry cannot be granted to some but denied to others based on the grounds of sexual orientation. To my knowledge nothing in the decisions forbids the government from saying that no one at all can get married. Hence, the courts haven’t found any “right to marry”.
This is of course different from the US, where the language in Loving appears to my non-lawyerly eyes to find a right to marry.
One of the key differences (or so I’ve read) is supposed to be that the relevant clause in the Charter guarantees not only equal protection of the law but equal benefit as well.
Note that the language strongly suggests that the list should not be thought of as exhaustive, which is how sexual orientation gets into the mix. Now, some conservatives here have argued that sexual orientation was left out intentionally and for good reason. Many of the “framers” are still alive, though, and I haven’t heard any of them back this line of interpretation (which is not to say none of them have, merely that I’m not aware of it.)
Dewey, Gorsnak has summarised why I disagree with your phrase a “right to marry.” The courts did not say that there is a constitutional right to be married under the laws of Canada; they said that if the laws create a legal right to marry, it can’t be denied to individuals who are protected by s. 15.
This point is illustrated by the fact that some commentators have reacted to the recent decisions by arguing that the government should “get out of the marriage business,” i.e. abolish the status of marriage as a legal category and create something called civil unions. “Marriage” would then be an entirely religious concept, completely outside government control. If there were a constitutional “right to marry”, this option would not be available to government, but I’ve not seen any interpretation of the two decisions which suggests that the federal government would be barred from taking this approach.
Oh, and with respect to Hamish’s original point - I took him to be referring to the equality protection of s. 15 in general as essential to free speech, with the marriage cases as just one example of how that provision works. But perhaps he will come back to elaborate.
Hmmm…The Equal Rights Amendment (making it unConstitutional to discriminate on the basis of gender) has not passed.
If the Supreme Court finds that it is unConstitutional to discriminate based on sexual preference, does that mean that I could be guaranteed equal rights if I become a lesbian?
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Pepsi Classic: Well Fox News does have the top ratings of cable news channels and these books sell lots of copies. I don’t agree with the view that the Court is destroying the Constitution, but there have to a lot of people who believe this if the views are selling so well.
I don’t believe that the loudest and most absurd of these talking heads even believe what they spout. But it is a route to money, fame and power. The bigger their reputations, the more charged their accusations seem to become.
I wish there were better and fairer ways of responding to their attacks. I certainly wouldn’t want to silence the Chicken Littles of the world. But I think they are, politically speaking, emotional terrorists. They plant these catch phrases and ideas and the less educated politically don’t question them.
Why else would Conservatives be suspicious of a Supreme Court whose members were mostly appointed by Republican Presidents? (If that is not an accurate statement, please correct me. I haven’t double checked what I remember.)
Northern Piper, Gorsnak: Oh, I understand that, as a technical matter, the Canadian government could comply with the ruling by simply abolishing all government distinctions based on marital status. Given that the likelihood of this actually happening is about the same as monkeys flying out of my butt, and given that the court is aware of that probability, it is perfectly fair to characterize the decision as embracing a right to marry. It may not be quite a right to marry in the abstract, but it certainly functions as such in the real world.
FWIW:
Free speech is supposed to be an absolute - in terms of the content, certainly.
But haven’t we long had laws that limit where and when certain forms of speech can occur? I’m thinking specifically about election booth areas. I’m not a constitutional scholar but I can’t see the SC ruling against such laws.
True Blue Jack
FWIW:
Free speech is supposed to be an absolute - in terms of the content, certainly.
But haven’t we long had laws that limit where and when certain forms of speech can occur? I’m thinking specifically about election booth areas. I’m not a constitutional scholar, but I can’t see the SC ruling against such laws.
True Blue Jack
True Black Jack: what you refer to are called “time, place and manner” restrictions, and broadly speaking, yes, they are constitutionally permissible. The government can’t prevent you from speaking, but it can prevent you from speaking through loudspeakers mounted on a van driving through my neighborhood at 3 am.
And even content-based restrictions aren’t abolutely verboten. Distributing kiddie porn is illegal, for example.
Loudspeakers a problem? Yeah, they certainly should be. Maybe you can tell that to the fundies in my downtown area, who have strated using them again. Or better yet, to the police who look the other way.
Thank you for the key general phrase, BTW. I didn’t know how to term it.
Kiddie porn? Yes, it occurred to me as I wrote it that there were what might be considered as possible “exceptions” to the generalization that “free speech” was considered to be content-blind.
With pornograhy in general, it hasn’t historically been considered that it was “speech” in itself. Hence the requirement, among others, that it be “utterly” devoid of serious artistic and scientific merit.
A long while back an activist against porn here claimed that lack of enforcement, rather than an actual rulings re the Constitution was behind freely available porn.
At this point in time I think that any massive campaign against porn would be essentially a failure. What would go significantly beyond “contemporary community standards” is more fluid than in decades past. And producers would be ever more nimble in interjecting some semblance, at least, of merit.
With child pornography the unique factor is that the production itself involves child sexual abuse. Many people of morality-enforcement stripe would maintain prosecution against even mere possession (without intent to distribute) of the stuff; most civil libertarians would be more concerned about censorship of any kind and only agree that the producers should be targeted. Of course, there was an interesting ruling recently that animation and simulation, involving no actual children, was protected. And so it goes…
True Blue Jack
Only if actual children are used. The rationale behind barring the distribution of child pornography is to protect the children used to make it. This is why, for example, virtual child pornography, though repugnant, is constitutional.
Which doesn’t change the fact that the ban on (real) kiddie porn represents a content-based restriction on free speech, which was my point – the poster had claimed that no content-based restrictions were constitutionally permissible, which isn’t true.
And there’s more – materials that meet the court’s test for obscenity can be banned on content grounds alone as well.
Well, no, actually. I didn’t say what was “constitutionally permissible” or not; I only spoke of the ideal of free speech was supposed to be. I worded that very carefully because your exception, among others, was on my mind at the time.
Quoting myself:
Free speech is supposed to be an absolute - in terms of the content, certainly.
It is interesting to note that even if obscenity counts as an ongoing exception to consistency on the ideal of free speech, it is one of a very small handful of all possible ongoing exceptions.
Generally, when it comes to the “core” of the First Amendment, the ability to agree or disagree with anyone or anything, you can point your mouth, or pen, in any direction and the government, for one, will leave you alone. Along our history there have been a few exceptions, such as when Jews were told to shut up when it came to the majority sacred cow religious views of the nation (pro-Jesus), but from what I’ve read such regressions to blatant censorship were remedied, usually very quickly.
True Blue Jack