Here is the same-sex marriage ruling from the Supreme Court of Canada released this very morning. I am just going to post it and invite you to:
- read it and
- post comments about it.
Later...Here is a dandy passage:
Several interveners say that the Constitution Act, 1867 effectively entrenches the common law definition of "marriage" as it stood in 1867. That definition was most notably articulated in Hyde v. Hyde (1866), L.R. 1 P. & D. 130, at p. 133:What, then, is the nature of this institution as understood in Christendom? Its incidents may vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must need (however varied in different countries in its minor incidents) have some pervading identity in a universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.The reference to "Christendom" is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. 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. In the 1920s, for example, a controversy arose as to whether women as well as men were capable of being considered "qualified persons" eligible for appointment to the Senate of Canada. Legal precedent stretching back to Roman Law was cited for the proposition that women had always been considered "unqualified" for public office, and it was argued that this common understanding in 1867 was incorporated in s. 24 of the Constitution Act, 1867 and should continue to govern Canadians in succeeding ages. Speaking for the Privy Council in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.) (the "Persons" case), Lord Sankey L.C. said at p. 136:Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the [B.N.A.] Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. [Emphasis added.]This approach applies to the construction of the powers enumerated in ss. 91 and 92 of the Constitution Act, 1867.
Comments
alfons - December 9, 2004 1:16 pm
Using Holland as an example - one of the first countries allowing for same-sex marriages - just shrug and say "Big deal". There were legal reasons to justify same-sex marriages (like inequality wrt. financial compensation with insurances if one of the partners passed away).
Bkb - December 9, 2004 2:16 pm
Kudos. I could perhaps understand where opponents are coming from if it was just a matter of them trying to protect the word "marriage" and its supposed sanctity.
However, those who are opposed to giving same-sex couples equal rights afforded to hetero couples appauls me. To think that a same-sex couple who've grown old together would be denied seeing each other while one is on his/her death bed in a hospital because they aren't "family" is horrible. I wish these opponents would imagine what it would be like to be in that situation. And that's just one example of what hetero couples have that we take for granted and just assume that everyone has.
Moreover, I believe that marriage ceased to have this claimed 'sanctity' when hetero couples began treating it so cavalierly to the point where now, what, 60% of marriages end up in divorce?
If these people (referring to those married multiple times) would put as much work into their marriage, thereby honouring their commitment made to their family, friends and God as they did into opposing same-sex marriage and all of its "woes" I think that they might (though not with me) have some more credibility... and possibly a lower divorce rate.
I see them largely as a group of people throwing stones from within their glass houses.
Good for Canada. Good for Canadians. I'm very proud, today.
Alan - December 9, 2004 5:13 pm
Here is another great sentence:<blockquote class="smalltext">The mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.</blockquote>
Nils Ling - December 9, 2004 5:20 pm
For the sake of stretching our wings, discussion-wise, let me throw in a bit of opinion from a gay friend of mine:
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Has it occurred to anyone that there are gay people who aren't necessarily for gay marriage?
Take me and my partner of 9 years, for example.
We don't believe marriage should be redefined. We'd be damned happy just to have our relationship recognized as a civil union so that we could have the same legal protection and benefits heterosexual partners enjoy, such as insurance coverage if one of us were ill and lost our job, etc.
It seems pretty clear to me that marriage is defined legally and religiously as between a man and a woman, and the cultural impact of redefining it is, I think, asking too much. Being granted the right of marriage certainly won't end discrimination against us and may further aggravate it as heterosexuals who might have been open to the idea of civil unions become put off by the encroachment on their own rights and traditions.
Equal rights shouldn't mean emulation rights. We can't measure the extent of our equality by how closely our relationships mimic those of heterosexuals. Our equality comes when we are recognized as human beings - loving, intelligent, productive members of society who are entitled to live a life free of violence with the same legal rights of partnership that heterosexual human beings possess. It seems to me that homosexuals should be as sensitive to the rights and ceremonies of heterosexuals as we are asking them to be of ours.
If you really want to do your part for equal rights, it won't be marriage that seals the deal - it's coming out of the closet. There are very good reasons for NOT coming out, and I'm sensitive to those reasons, but if you can come out to even one trusted member of your family or a friend, it does wonders. Coming out forces those who love us to come to terms with some facts of life - there are gay people in this world, they're closer than we thought, and holy shit, they aren't so bad!
You can do more for gay rights by being honest with those you love, carrying yourself with respect, being a good friend, partner, employee, son or daughter, than you can writing your legislators every day of the week. You represent "gay" every single time you interact with other people, like it or not, and as such you represent me. So get your finger out of your nose...
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I think what Tess posits is backlash ... and that perhaps victories come at a cost ...
Alan - December 9, 2004 6:58 pm
But that decision to not marry is no different, Nils, than opposite-sex couple except that the same-sex couple has a choice and is therefore making a decision when they do not marry. I'd think it makes that more meaningful when then is actual choice involved.
David - December 10, 2004 7:33 am
I'm curious Bkb -- have you actually made an effort to understand what the opponents of same sex marriage are saying? Or do you just write-off anyone who disagrees with your snap judgements ignorant bigots?
I say "snap judgement" because this issue is remarkably young. When I was in university, the big gay rights issue was whether they should be using the word "shit" or "feces" in safe-sex instruction manuals. In 1994, almost no body hard even heard of gay marriage as being some sort of issue that people were concerned about; in 2004 the issue is likened to the slave trade; opponents to lynch mobs and religious zealots.
Alan - December 10, 2004 8:02 am
That is an interesting point, David. One of the remarks in the ruling which I think is problematic is the statement: "Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples." This could be factually correct it stated "several decades" or also maybe "several years".<p>This issue have moved faster than anyone would have thought ten years ago - but that is one of the beauties of the Charter. It allows for an analysis and remedy that leads society or at least does not necessarily hang around and wait for permission. If that is the case, we should expect and even sympathize with those who have not moved with it.
alfons - December 10, 2004 9:38 am
Isn't this about repairing inequality issues, in short a "technical" issue? Remember that women voting rights is also not that old.
(I also think that David's point is a bit flawed: Just that we didn't realize problems about inequality "issues" doesn't mean that they weren't there.)
Alan - December 10, 2004 9:51 am
But, Alfons, we are not each able to be perfectly equal in our personal estimations. We should expect that where these legal lines are drawn there will be persons with beliefs which range to each side. It is true that the pursuit of equality law is a process of discovery rather than invention but the community is too organic to immediately be in accordance with each new discovery.
alfons - December 10, 2004 11:24 am
I perfectly see what you mean; tssk, quite a predicament - maybe I should confine myself to really technical issues. :-)
Let me say it this way: The old slave keepers did nothing unlawful in their times. So at what time did keeping slaves become unlawful?
Alan - December 10, 2004 11:28 am
It was immoral before it was unlawful. Canada only gave up slavery in the 1830s, just a generation before the USA, so we have nothing to brag about. But that was a time of many civil rights being established in the English common law world and many immoral and unjust aspects of the law were being swept away - religious inequality, voting rights, etc., we all brought in in much the same time. We may be living through another era of such rapid change.
john - December 12, 2004 2:15 pm
the SCC can answer question #4. The Charter of Rights s.15 ss.2 allows parliament to make laws for those disadvantaged because of sexual discrimination. Leave the heteros alone and make new laws for the homos.