The Supreme Court of Canada has determined that gay mariage is legal in all of Canada! http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc079.wpd.html This is a tremendous victory for equality!
It’s been a while since legalese made me tear up like that!!! Hooray for Canada, send some of them good vibes south of your border too!!
wistful sigh. Yay y’all!
Ahem. On this momentous and solemn occasion I feel that a few appropriate words are necessary:
WOOHOO!
Go, Canada!
envious sigh
No no no wait, stop the music.
The ruling isn’t binding. The SCOC didn’t rule that same-sex marriage is legal in all of Canada. In fact, it declined to rule on whether it’s required by the constitution, saying the gummint already has that as its position by failing to appeal lower court decisions.
What the ruling does do is verify that the government’s draft bill to legalize same-sex marriage is constitutional. So the government now has official permission to go ahead and vote on it now, a move that Justice Minister Irwin Cotler says should happen quickly. Of course, this will require a vote in the sharply divided House of Commons. We’re not out of the woods yet, kids.
Yay! I wonder what King Ralphy in Alberta will say? He’ll probably decide to ignore this ruling and keep Alberta in the dark ages like he does with the health act.
That, sir, is a needed corrective – but nonetheless, my congratulations to Our Lady of the Snows (Kipling metaphor) for behaving like a civilized nation. That this is a procedural step and not the final victory it appeared to be at first sight is cold water – but allow us from Bushsylvania the privilege of rejoicing that you all are making progress towards human decency – since we’re not.
Was going to post this in the ahem thread I started on the topic this morning but since this is here I’ll deign to frequent it.
Canadopers, as I understand it, now that the legislation has been cleared through the court if/when it passes it is immune from further challenge. Is that correct?
From the story I read my understanding was that the question before the court, and which it declared moot, was whether the traditional common law definition of the word “marriage” meaning male-female couples only was constitutional. I didn’t think the court had before it the question of whether SSM was required by the Charter.
Well, the idea is that if the opposite sex definition of marriage is against the Charter, then the Charter requires same-sex marriage. That was the argument used by the provincial courts in requiring SSM.
Also, as a matter of interest, I believe it’s 72% of Canadians polled support same-sex marriage. Which suggests to me that it better pass a vote in the House, divided or not, particularly when the Conservative Alliance (is that what they’re called now?) claims to vote as their constituents wish, and not according to their own opinion.
From a friend of mine on the hill helping the whip with potential vote numbers…
10-15 Libs saying no, Conservatives split with Harper making it a free vote.
So the Lib/NDP/Bloc trio -~175 Votes, Opposed ~110 with a few abstentions and a bunch of people not there.
What it comes down to is that despite not answering no. 4 (whether or not the old common law holding that marriage is between a man and a woman is unconstitutional), the Charter has consistently trumped common law, and the Charter does not permit discrimination against gay marriage. In other words, gay marriage is now legal across Canada, and the onus in any further challenges to gay marriage will now be on the government to prove otherwise, rather than for the couple to prove that it is legal.
If the government does a 180 and expressly prohibits gay marriage, then this decision will be used to strike out such legislation. Although the government could ultimately use the Charter’s notwithstanding clause for a time limited basis, and could renew such a time limited exception, the fact remains that gay marriage is now legal in Canada until such legislation might be effected, and in all probability, no such legislation would be passed.
If the federal government backs away from legislating either for or against gay marriage, this decision will be used to shut down any further attempts to prevent gays from marrying in provinces where the issue has not already been decided in favour of gays.
If the federal government does pass legislation expressly permitting gay marriage, this decision will be used to shut down legal attacks against such legislation.
This decision is a watershed decision, for it is no longer necessary for gays to prove that they have a right to marry anywhere in Canada. Everything else that will follow, most probably including a debate in the House and a vote that will probably but not necessarily pass, is of importance, but the mountain has now been climbed.
Here are some telling points made by the Court:
Well, it’s a little bit misleading to say that gay marriage is now legal across Canada, in the same way that the provincial court decisions immediately made marriage legal all across the provinces and territory where they happened.
That is to say, I doubt a gay couple could just sashay into their local clerk’s office in Prince Edward Island, demand a marriage licence, and have it all ready to go.
As I see it, it does two things:
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make all further provincial court cases (such as the one that’s now underway in Newfoundland and Labrador) much easier;
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give the gummint the excuse it needed to pass SSM.
Immune? Not necessarily, but challenging it would be like going up against an elephant with a pop-gun. It would be extremely difficult to successfully challenge.
Beyond that, having such a powerful decision will make it far easier for the government to justify passing gay marriage legislation, and for the Members of Parliament to vote for gay marriage. Rather than have to stand up and be the prime mover behind gay marriage, the politicians can hide behind the SCC’s decision if they are pressed by anti-gay constitutents. They can claim that the are simply following through with what the Court has set out – for it is one thing for a politician to go out on a limb and make gay marriage legal where it was not previouisly legal, and quite another to simply enact a procedural mechanism by which already legal gay marriage will occur.
Sort of. The Court looked at four things. First, who has control over marriage and divorce; second, is gay marriage consistent with the Charter; third, does gay marriage impinge on religious freedom; and fourth, is the old common law view against gay marriage consistent with the Charter.
On the first issue, the federal government, not the provinces, has jurisdiction over marriage and divorce.
On the second issue, gay marriage “flows from” the Constitution’s Charter of Rights and Freedoms.
On the third issue, gay marriage does not impinge on religious freedom because religious organizations are not compelled to perform gay marriages.
On the fourth issue, with respect to the mid-19th century’s common law view that that marriage is between a man and a woman, the Court noted that “The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life,” that more recently in five provinces and one territory the common law no longer holds that a marriage must be between a man and a woman, that these decisions were not appealed to the SCC, that the federal government has accepted these decisions, and that the federal government is committed to passing legislation permitting gay marriage regardless of what decision the Court makes, so the Court has declined to decide if the common law is consistent with the Charter in favour of letting the government pass its own legislation.
Just spun off an e-mail to my useless Liberal MP, requesting that she support it.
Anyone know how I can find out how she’s planning on voting?
I plan on the doing the same for my MP, cowgirl, but the useless bugger will probably vote against it. 308 ridings in the country and I get it the most useless MP in the country. Not just for this but countless other things. I will never vote Liberal so long as he is running.
Good Luck! Here’s hoping!
Can American’s get marriend in Canada? How’s that work?
I don’t think there’s anything from stopping Americans from marrying in Canada. It’s having your marriage recognized in the US that might be the hard part.