Supreme Court on same-sex marriage

Apologies to regular readers of my Supreme Court RSS feed; there were some teething troubles when I moved it to the new connection and I didn't notice until I realised that this high-profile item hadn't come through the feed yet.  Anyway, here it is:  the opinion on the Government's proposed same-sex marriage bill.

Unfortunately, I wasn't able to quickly find a good link to the proposed legislation itself, but as the opinion says, "The operative sections of the proposed legislation read as follows:  1.  Marriage, for civil purposes, is the lawful union of two persons [note, no specification of sex] to the exclusion of all others.  2.  Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs." Then the Government asked four questions about those sections, in paraphrase:  1.  Does Parliament have the authority to pass that?  2.  Is section 1 Constitutional?  3.  Does freedom of religion guarantee that religious officials don't have to marry same-sex couples if they don't want to?  and 4.  Would it be Constitutional not to allow same-sex marriage?  The Supreme Court's opinions on those four questions are respectively "yes and no", "yes", "yes", and "we refuse to answer".

Before answering those questions, the opinion first goes into some detail on the meta-question of whether the Supreme Court can rule on this stuff at all.  Apparently one of the arguments that had come up boiled down to "Oh, it's not us who say that marriage has to be opposite-sex, God says it has to be opposite-sex, and He outranks the Supreme Court, so nyeah!" In more formal terms, the claim was that "marriage is a pre-legal institution and thus cannot be fundamentally modified by law".  On that point the Court quotes Lord Sankey writing for the Privy Council in Edwards v.  Attorney-General, which was the case in which it was decided that women count as "persons" for the purpose of holding office:

The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested.

Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.

The appeal to history therefore in this particular matter is not conclusive.

I like that quote a lot.  It reminds me of the monkey story, which because I haven't posted much here in a long time, I think I'll relate now.  The idea is, you take a bunch of monkeys and you put them in a room where there's a clearly visible bunch of bananas.  But you set up the floor in such a way that if any monkey goes for the bananas, then the other monkeys receive an electric shock.  Very quickly the monkeys figure out what's going on, and it'll soon become the case that if any monkey makes a move towards the bananas, the other monkeys will beat him or her up; they don't want to be shocked.  The monkeys will pass a law:  those bananas are off-limits.

Now you put some fresh monkeys in the room with the others.  What happens?  They will quickly be taught the law, because if they start to move towards the bananas, they'll be beaten.  Soon they'll willingly participate in beating other monkeys, even though they themselves have never received a shock and can be assumed not to know why it's a law that the bananas are off limits.

Then you start removing the original monkeys and swapping in new monkeys, and eventually you also turn off the electric floor.  So now you have a situation where nobody in the room has ever been shocked, the original reason for the "stay away from the bananas" law is obsolete, they could go eat the bananas any time and nothing bad would happen, but nonetheless, the crowd of monkeys in the room is still enforcing its banana prohibition and indoctrinating newcomers.  That's what Lord Sankey was talking about.

One other random thought - this one's silly but it's worth mentioning.  In the few minutes I spent skimming the Net I couldn't find good references as to who, if anyone, intervened in Edwards circa 1930, but it seems reasonable to supposed that if the people who are intervening against same-sex marriage now had been around in that era, they would have been intervening against "any change to the traditional definition of persons".  What if the Supreme Court, now, said to the Right, "Okay, boys, the Constitution says we have to define marriage as the union of two 'persons,' but don't worry, we'll give you this compromise:  we'll distinguish Edwards.  Women are no longer 'persons.' Have fun!"

Do the math.

Of course, there probably are activist groups out there actually promoting the idea that the only valid marriage is a marriage between two men.  It doesn't even take much thought to put together half-baked arguments in favour of such a view.  For instance, you could steal an idea from the radical feminists and claim that since our patriarchal society exploits female sexuality in such horrible ways, women can't give real consent.  The idea that all heterosexual activity is "rape" regardless of apparent consent is hardly new nor even considered particularly radical by some people; it's not a stretch, especially if you look at typical mainstream pornography, to say that male exploitation has ruined female homosexuality too.  Then only men have the necessary freedom to be able to make a real, uncoerced commitment involving sex, and so in the current social context only a marriage between two men can be non-exploitive, and so only those should be allowed.  Right?

Well, that was fun.  Moving right along, on Question 1 they say that it's legal for Parliament to pass section 1 (that is, recognizing same-sex marriage) but not section 2 (saying that religious officials don't have to participate), or at least, if Parliament does pass section 2 that won't really solve the purported issue, because that's a Provincial issue.  Theoretically, a province could require religious officials to perform same-sex marriages even if it's against their religion.  It's a sticky question because recognition of marriage itself is Federal (it has to be, because it's a zoo if different provinces can freely recognize or not marriages performed in other provinces) but deciding who can perform marriages is under Provincial authority.  The section 2 issue really seems mostly technical to me, though.  The Court makes clear in paragraph 39 that they're saying "no" only because they were asked whether it was within Parliament's exclusive power, and it isn't - the Provinces also have a say.  I don't think that's a problem.

I think this whole thing of "Oh, woe, religious officials might be required to perform same-sex marriages against their religion!" is a red herring, and evidence that the anti-same-sex-marriage lobby has run out of sensible things to say and is grasping at straws.  Nobody really believes that scenario would ever occur, least of all the people who claim to be terribly afraid of it.  It's a fictional situation created for the purpose of stirring up controversy and they ought to be ashamed of themselves.  Just look at the Catholics, who have always refused to recognize divorce and, therefore, refused to perform marriages for divorced persons.  Has any Catholic priest in Canada ever been legally required to perform a marriage involving a divorced person, just because the Federal government recognized the divorce as legal?  Why should same-sex be any different?  Now, maybe a church might decide to recognize same-sex marriages, and demand that its functionaries perform such marriages even if they don't want to - indeed, I'm sure that has already happened - but that is not a problem the Federal Government has any business trying to solve.

Question 2 is more interesting:  that comes down to "Is it consistent with the Charter to recognize same-sex marriage?" The answer is "yes".  It's hard to imagine how it could fail to be, since the Charter doesn't really contain any provisions taking away or denying individual rights, short of the NOTWITHSTANDNG CLAUSE which wasn't invoked in this proposal.  There was apparently an argument made that recognizing same-sex couples was somehow an infringement of the rights of the opposite-sex couples already recognized, but A. get a life, and B. even if that were true, it wouldn't make it unconstitutional.  The Charter acknowledges that sometimes people's rights can conflict with each other , but that doesn't mean the rights don't exist; on the contrary, the Charter provides a framework for resolving the conflicts.  There's also the point made that a complicated question like that would have to be solved when it occurred instead of in the hypothetical; as the Court writes in paragraph 51, "The Proposed Act has not been passed, much less implemented.  Therefore, the alleged collision of rights is purely abstract." That kind of logic seems like it could lead to throwing out this entire referral instead of just that one point on one question, but whatever.

Question 3 also isn't difficult.  The Charter says religious freedom is protected.  Does that mean that religious officials are protected from being required to perform marriages they don't approve of?  Yes, it does.  One caveat on that is the one I mentioned above:  the Charter refers to actions of the state.  There could still be fun within a church if the church decides to recognize same-sex marriage and the individual official doesn't; that's not something the Federal Government has any business intervening in.

"A unique set of circumstances is raised by Question 4," the Court writes.  Question 4 is, in paraphrase, okay, could we get away with banning same-sex marriage?  Reading between the lines of the Court's non-answer, I think the message comes down to, "Sorry, we won't play 'bad cop' for you.  If you want to tell the Right that you attempted to ban same-sex marriage and we wouldn't let you, then you have to actually make the attempt for real, and face the consequent loss of goodwill from the 'not fucking insane' lobby." The Court points out that the Government has already declared its intention to pass the proposed act or something very much like it, so they shouldn't have any legitimate reason to want to know about some other hypothetical act that they've declared they wouldn't attempt to pass.

The Court also points out that the question of recognizing same-sex marriages is not actually so hypothetical anymore.  As a result of previous decisions, there have been a bunch of same-sex marriages already performed.  What would happen to those people?  They've already structured their lives around their marriages and the assumption their marriages will continue to be recognized; saying "Sorry, you're no longer married" imposes an unreasonable hardship on already-existing married couples and saying "Okay, you're subject to a grandfather clause, but we won't recognize any new same-sex marriages" isn't really a whole lot better.  So, to a certain extent you have to recognize same-sex marriages because you already have.

I don't actually have much sympathy with that argument, because it seems like a general principle that was made up for this specific situation and wouldn't in fact be applied to other situations where it seems like it should be equally applicable.  Let's say they raise the age of consent - what would that do to already-existing intergenerational couples?  Would the hardship imposed on those couples be a dispositive argument against raising the age of consent?  Let's say they introduce a DMCA de Canada - what would that do to already-existing computer scientists?  I've made major life decisions (in particular, not pursuing graduate work in the USA) around Canada's copyright laws and the assumption that they'll remain sane; if my profession is outlawed, that'll be a really serious issue for me.  I've got megabyte upon megabyte of security-related work products that I'll have to destroy or something if the law decides that "hacking tools" are illegal to possess.  Would the hardship on me be a dispositive argument against "new media" copyright extensions?  Well, I'm trying, but it sure doesn't look like I'm convincing a lot of people with that argument alone.  It seems like if you believe this kind of argument, you can never outlaw anything that people are already doing, because that'll be an unreasonable hardship on the people who thought that what they were doing would remain legal.

Anyway, I think the Supreme Court's opinion is the right one overall.  Now it remains to be seen just what the Government will do - they're promising to introduce legislation early in the new year.

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