| Remember when you were a kid and you could cry "No fair! I’m calling ‘do over’" when the game didn’t go your way? Hearing Stephen Harper revisit the same-sex marriage issue on the first day of the federal election campaign had the same ring to it.
This nation spent almost three years embroiled in one of the most controversial and emotional issues of the last decade. Average Canadians were discussing it, debating it and arguing it in coffee shops, classrooms, over "talk radio" phone lines, and in letters to the editor on a daily basis. It seemed to consume the public agenda.
Social conservatives decried the "activist judiciary" and its involvement in the process, demanding that Parliament decide. Parliament did decide, and it decided in favour of equal access to a civil institution. Equal, or same-sex, marriage became legal in Canada. The government rejected the idea of a two-tiered marriage system whereby one set of citizens have access to civil marriage, with all its rights, privileges and responsibilities, and another set of citizens would be forced to settle for "civil unions."
The government created a commission to examine the issue, which held consultations across the country. Party caucuses debated it and formed policy around it. Everyone – and some days it seemed it truly was everyone – had an opportunity to say their piece. In the end, Parliament voted overwhelmingly in favour of equal marriage. That should have been the end of it.
Harper raising the issue, apparently against the advice of his strategists and advisors, was a cynical attempt to play to the right-wing element within his party and amongst his supporters. It was an empty gesture.
The reality is, even if the Conservatives form the next government (which is by no means a guaranteed result), they will not be able to undo equal marriage. Unless he wins by a sizeable majority, his government would need the support of the House of Commons. On this issue, he would not have it. He does not even have the full support of his own MPs on the issue.
Harper has suggested that he is prepared to use the "notwithstanding clause." He cannot. Harper seems to have a particular lack of understanding when it comes to how Canada’s Constitution works. The "notwithstanding clause" is there to permit provinces and territories to "opt out" of decisions they disagree with on a jurisdictional level and gives them five years to revisit the issue. The federal government cannot use the clause to "opt out" of federal legislation. About the only thing Harper could do is repeal Bill C-38, and for that he would need a majority of votes in the House.
Harper also stated the approximately 3,000 same-sex couples already married would not have their marriages annulled. They can continue to be legally married, but the rest of the gay, lesbian, bisexual and transgendered community would be denied access to the institution. Yeah, that’d work just fine….
The original concern those supporting equal marriage had was that there would be a two-tiered approach to marriage – a sort of matrimonial apartheid where all were equal, but some were more equal than others. Those of us supporting equal marriage refused to accept anything less than full equality.
Under Harper’s suggestion, we would have, in effect, a three-tiered system including opposite-sex marriage, civil unions for same-sex, and then this unique set of 3,000-odd couples who fit into some other category of "special equal marriage." The logistics, to say nothing of the logic, would be overwhelming.
Equal marriage is a legal and political reality in Canada. The sky hasn’t fallen, and priests, rabbis, ministers and imams are not being dragged from behind their pulpits and trotted before the courts for refusing to marry any couple, be they same-sex or otherwise, that their particular faith group believes should not be married. Catholic priests are not, and will not be, forced to marry divorced couples, and they will not be forced to marry same-sex couples, either.
Right-wing religious organizations have made considerable noise about freedom of religion. The Charter of Rights and Freedoms guarantees those freedoms and they are not affected by access to the civil institution of marriage.
Harper knows that, or should. His attempts to re-open the issue are naïve at best and cynical at worst. It may well cost him the Prime Minister’s Office and the leadership of his party.
Stephen Lock is a long-time gay activist in Alberta, a broadcaster, freelance writer, and vice-president and regional co-director (Prairies/NWT/Nunavut) of the national GLBT advocacy and equality-seeking organization, Egale Canada. |
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