Has Canada legalized gay marriage? Maybe. Maybe not. In any case, if Canada hasn’t already legalized same-sex marriage, it will almost certainly do so soon. This week’s events north of the border tell us a lot about the coming battle over gay marriage in the United States. But to understand the lessons of Canada, we’ve first got to figure out what’s actually happening there. The answer isn’t obvious.
Let’s begin by reviewing the situation as it stood prior to this week’s Ontario court ruling.
The Canadian federal government is responsible for defining marriage for the country as a whole. The provincial governments issue marriage licenses and tend to the specifics of marriage law, within the framework of the federal definitions. Prior to this week, several provincial courts had already ruled that, under the Canadian Charter of Rights and Freedoms, the federal government is obligated to permit same-sex marriage. The federal government had until June 30 to appeal those rulings to Canada’s supreme court. If the federal government had decided not to appeal, gay marriage would have become official and legal in Canada by the end of this month. If the government had decided to appeal, the decision on gay marriage would have had to await an eventual supreme-court ruling.
This week’s Ontario court ruling differs from the other provincial court rulings in that it authorizes immediate marriage for same-sex couples in the province. Yet, if the federal government decides to appeal the Ontario court ruling, along with all the other provincial rulings, to the supreme court, the official status of the same-sex marriages now being celebrated in Ontario could be thrown into doubt. Canadian federal Justice Minister Martin Cauchon has acknowledged that the same-sex marriages now taking place are effectively legal. But Cauchon has declined to say whether those marriages would eventually be voided if the Canadian supreme court accepted the government’s appeal.
So, technically, the gay marriages now being celebrated in Ontario might later be invalidated. But in fact, that outcome is extremely unlikely. That’s because the Canadian supreme court is very liberal on questions of gay rights. Even if the federal government appeals the various provincial rulings later this month, the government will almost surely lose before the supreme court. So if gay marriage isn’t legal in Canada now, it will almost certainly will be legal soon.
At the moment, the federal government seems to be leaning against an appeal. Instead, the federal government is now considering passing a law permitting gay marriage, and then asking the supreme court to quickly rule on the law’s constitutionality. This is a rare legal move, called a “reference.” But by seeking a supreme court “reference” for a law establishing gay marriage, the federal government would simply be hoping to share some of the political blame for having changed the definition of marriage. It is a forgone conclusion that the supreme court would uphold the constitutionality of a federal gay-marriage law.
There is one other route by which gay marriage in Canada could be avoided. Either the federal government, or possibly one or several of the provinces, could invoke the Canadian constitution’s “notwithstanding clause.” The notwithstanding clause allows the federal government or the provinces to exempt themselves from the provisions of the Canadian Charter of Rights. The notwithstanding clause is almost never invoked. And given the federal government’s talk of passing a gay-marriage law, it seems exceedingly unlikely that the federal government will invoke the notwithstanding clause to hold off gay marriage.
On the other hand, Alberta premier, Ralph Klein, has already pledged to invoke the notwithstanding clause to prevent gay marriage from being recognized in Alberta. In fact, some legal experts argue that this invocation is unnecessary, since the notwithstanding clause has already been invoked by Alberta for a 2000 amendment to the Alberta Marriage Act that defined marriage as a contract between a man and a woman.
The notwithstanding clause, and Alberta’s determination to use it, might seem to create the possibility of a patchwork solution, in which some Canadian provinces have gay marriage, while others do not. But that outcome is also very unlikely. That’s because, as I’ve already noted, the definition of marriage in Canada falls to the federal government. Provinces can only invoke the notwithstanding clause to protect provincial laws. So chances are that the Canadian supreme court will eventually overrule Alberta’s attempt to invoke the notwithstanding clause.
We have now arrived at the reason why the federal government is thinking of quickly passing a law legalizing same-sex marriage. Just last week, the government was fighting the provincial court decisions legalizing gay marriage, and was very probably going to appeal them to the Canadian Supreme Court — however unlikely that appeal was to succeed. But now the federal government is facing the prospect of a province-by-province patchwork of marriage laws. And as I’ve argued repeatedly (see, for example, “>The Right Balance“), in a modern society, with frequent travel across state borders, a patchwork solution for marriage laws will be impossible to sustain. Seeing this, Canada’s federal government officials are now saying, “We recognize that there has to be a national solution.”
In sum, the dim prospects for supreme-court appeals of provincial gay-marriage decisions, combined with likely reversals of provincial invocations of the notwithstanding clause, will almost certainly lead to eventual nationalized gay marriage in Canada. In the meantime, the prospect of a chaotic, if temporary, province-by-province patchwork solution has spurred the federal government to consider immediate legislative action to nationalize gay marriage.
There are many implications in all this for the approaching wrangle over gay marriage in the United States. First, it needs to be said that gay marriage in Canada definitely does not mean that gay marriage is inevitable here in the United States. Same-sex marriages performed in Canada will have weak claims to recognition here. Holland has already had legal gay marriage for some time, and those marriages have not been recognized in the United States. And it’s important to remember that much of Canada has for some time treated same-sex couples as married in all but name. In other words, something close to Vermont’s civil-unions law already applies to same-sex couples in Canada. America does not share European or Canadian pacifism, and we needn’t share their marriage customs either.
Yet gay marriage in Canada sends a clear warning. Although the Canadian public is almost evenly split on the issue, gay marriage has been imposed on the country by the courts. For some time, the making of social laws has effectively been removed from the hands of the Canadian public and taken over by judges, feminist bureaucrats, and rights panels. Although Canada’s parliament repeatedly rejected the inclusion of gay rights in Canada’s Charter of Rights, the courts have manufactured such rights nonetheless. Remarkably, one of Canada’s provincial courts reversed a judge who had barred same-sex marriage by saying that he had failed “to give adequate weight to the evolution of societal views with respect to homosexuality.” This was both an admission that new views were being read into the original Charter of Rights, and also a bold usurpation of legislative prerogative. Surely if “the evolution of societal views” is the determining factor, then the people ought to be allowed to express their “evolving” sentiments through their elected representatives. But in Canada, as in much of Europe, the concept of democracy is slowly being eroded by elite judges and bureaucrats.
As a Massachusetts court prepares to circumvent the state legislature and impose gay marriage on the state — and quite possibly the country — it will pay to keep the Canadian example in mind. As in Canada, American judges are usurping the role of legislators and imposing their views on the public. And as in Canada, once a single American state legalizes gay marriage, the complexities of travel and interdependence in modern society will create enormous pressure for a national solution to the gay-marriage issue. In a crisis atmosphere (thousands of gay couples flooding into Massachusetts to marry and returning to their home states to sue for recognition), the U.S. Supreme Court could easily legalize gay marriage — on equal-protection grounds and/or on several other grounds as well. Of course, Canadian courts are already forcing gay marriage on the country through the Canadian equivalent of equal-protection grounds right now.
There is, in short, only one way to prevent national gay marriage from being imposed on the United States — as it is about to be imposed on Canada — by the undemocratic decision of a state court. Passage of the proposed Federal Marriage Amendment to the U.S. Constitution — which defines marriage as the union of one man and one woman — is the only way to take marriage out of the hands of the courts and put it back into the hands of the people.
It’s also worth noting that the intense political-cultural battle I’ve predicted will soon hit the United States is already breaking out in Canada. Sharp fissures have opened up, not simply between, but also within the various political parties over this issue. Politicians are fighting bitterly with each other behind closed doors, and are being forced to take a public stand on an issue they do not wish to pronounce upon. Couples from all over Canada and the United States are soon going to flood into Ontario (although, as noted, American law will almost surely not recognize Canadian gay marriage). The ensuing controversy over the status of Ontario marriages will be sharp. Already, the hubbub over provincial invocations of the controversial and rarely used notwithstanding clause is substantial. Again, all of this is what is stampeding the federal government (which had been fighting gay marriage until now) to pass a federal law overcoming even a temporary patchwork situation.
If, as expected, Massachusetts legalizes gay marriage sometime in the next month, the controversy may well hit at the same time that one, or even two, Supreme Court vacancies arise. That will raise the stakes on the court appointments, and will also illustrate for all to see the dangers of activist judges. Already, Massachusetts has been convulsed by gay protesters rising during Catholic Church services to hold hands, embrace, and walk out, as priests read letters opposed to gay marriage. Look for these sorts of cultural battles to spread across the entire country after Massachusetts acts. If the campaign for the Federal Marriage Amendment kicks into high gear, national gay marriage in the United States may not be in the cards. But the battle over gay marriage will be sharp and drawn out. Keep your eyes on Canada. The fight up there won’t be as dramatic or intense as the one down here, yet it is surely a harbinger of things to come.