the daily snivel
Three Canadian provinces now legally recognize the freedom of gays and lesbians to celebrate same-sex marriages: Ontario, British Columbia, and Quebec. Today, the Quebec Court of Appeal upheld a 2002 Superior Court decision to recognize same-sex marriages, holding that the traditional definition of marriage is discriminatory and unjustified. The Quebec Court of Appeal is the highest court in that province -- only the Supreme Court of Canada can overturn it. Three provincial courts of appeal have now ruled that traditional definitions of marriage are discriminatory.
Despite the ridiculous attempts in the United States to enact a constitutional amendment prohibiting same sex-marriage (and even conferring marriage-like rights to same sex couples as in a civil union), same-sex marriage is alive and well in Canada. The Supreme Court will decide later in 2004 as to whether draft federal legislation recognizing same-sex marriage nationwide is constitutional (as well as an added question of whether civil marriages are constitutional), but even if the bill died or was ruled unconstitutional (for example, if it limited freedom of religion by forcing churches to celebrate -- 'celebrate' in the legal sense -- marriages, which it doesn't), the marriages will continue. Only a successful appeal to the Supreme Court of Canada by a province affected by the above rulings could change the state of the law, or a provincial or federal statute that invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
There are those of us who will say the courts are engaged in "judicial activism" in reaching such decisions. But what is judicial activism other than a code word for "The court made a decision that I don't like." Democratic nations rely on courts to be the arbiters of controversial disputes each and every day, and we acknowledge the authority to do so even if we don't like the results. It does no good to lament that the bench is too activist when one is, for example, convicted of a crime, or forced to pay damages in tort, if the court relies on legal authority and persuasive evidence in reaching that decision. All cases have winners, and all cases have losers. It is as "activist" to uphold a law that is discriminatory as it is to strike one down. The courts derive their power from the democratically enacted and entrenched Constitution Act, 1982 which states "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." We enacted this constitution as a country. We gave judges the power to determine if a law is inconsistent with the Constitution of Canada and, if it is, to strike that law down. The Crown has the burden of proving that a law that violates the constitution can be justified, and if it fails to make that justification then the part of the law that infringes on Canadian rights cannot be saved.
It would take enormous political will to pass a law that banned same-sex marriage in Canada -- moreso to enact a constitutional amendment here. I seriously doubt that will exists because I seriously doubt most Canadians are as strongly opposed to the protection and enforcement of equal rights as a vocal but wrong-headed minority would insist.
Despite the ridiculous attempts in the United States to enact a constitutional amendment prohibiting same sex-marriage (and even conferring marriage-like rights to same sex couples as in a civil union), same-sex marriage is alive and well in Canada. The Supreme Court will decide later in 2004 as to whether draft federal legislation recognizing same-sex marriage nationwide is constitutional (as well as an added question of whether civil marriages are constitutional), but even if the bill died or was ruled unconstitutional (for example, if it limited freedom of religion by forcing churches to celebrate -- 'celebrate' in the legal sense -- marriages, which it doesn't), the marriages will continue. Only a successful appeal to the Supreme Court of Canada by a province affected by the above rulings could change the state of the law, or a provincial or federal statute that invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
There are those of us who will say the courts are engaged in "judicial activism" in reaching such decisions. But what is judicial activism other than a code word for "The court made a decision that I don't like." Democratic nations rely on courts to be the arbiters of controversial disputes each and every day, and we acknowledge the authority to do so even if we don't like the results. It does no good to lament that the bench is too activist when one is, for example, convicted of a crime, or forced to pay damages in tort, if the court relies on legal authority and persuasive evidence in reaching that decision. All cases have winners, and all cases have losers. It is as "activist" to uphold a law that is discriminatory as it is to strike one down. The courts derive their power from the democratically enacted and entrenched Constitution Act, 1982 which states "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." We enacted this constitution as a country. We gave judges the power to determine if a law is inconsistent with the Constitution of Canada and, if it is, to strike that law down. The Crown has the burden of proving that a law that violates the constitution can be justified, and if it fails to make that justification then the part of the law that infringes on Canadian rights cannot be saved.
It would take enormous political will to pass a law that banned same-sex marriage in Canada -- moreso to enact a constitutional amendment here. I seriously doubt that will exists because I seriously doubt most Canadians are as strongly opposed to the protection and enforcement of equal rights as a vocal but wrong-headed minority would insist.
