Legal versus political

When the Supreme Court Of Canada (SCOC) delivered its opinion in favour of extending the right of marriage to same-sex couples early last month, gays and lesbians across the country celebrated.

And then, on Christmas Eve, the Supreme Court Of Newfoundland and Labrador ordered that the definition of marriage in the province include same-sex couples, continuing the marriage movement’s momentum.

But Gilles Marchildon, executive director of Egale Canada, says that while the legal momentum may be on their side, the government’s same-sex marriage legislation has not yet successfully passed a vote in Parliament.

“I am not trying to be alarmist, but there is a danger here that the bill might not pass. There is a danger that people are going to be complacent,” he says. “At this moment we don’t have assurances that the majority of MPs are going to vote in favour of it – we’re close, but not there yet.”

Marchildon adds that while same-sex marriage activists will not be without legal avenues if the legislation fails to pass Parliament, the bill would serve as an important “symbolic victory” for Canada’s queers.

“If we don’t get that legislation passed, there will be all kinds of opponents to equality who will always say that this was never the will of the people. That this was always the courts shoving same-sex marriage down our throats,” he says. “So, symbolically and politically, it is extremely important that the bill be successful.”

Justice Minister Irwin Cotler says the government will table its proposed same-sex marriage legislation once Parliament reconvenes later this month.

But Prime Minister Paul Martin has said only cabinet members will be required to vote in favour of the proposed legislation, with the rest of the Liberal caucus allowed to cast a free vote.

Marchildon, therefore, is urging gays and lesbians to contact their local MP and make their voices heard in support of the proposed same-sex marriage legislation.

“People have a choice: they can either say this is a ‘done deal’ and not do anything – and there is this risk of it not happening – or, they could say we need to spend another six to eight weeks really doing everything we can, so that in the eventuality of a positive vote on the legislation, we played a positive part in ensuring the bill’s success,” he says.

And while right-wing politicians like Conservative Party leader Stephen Harper and Alberta Premier Ralph Klein have been vocal opponents of the government’s proposed legislation, Marchildon says less ideological Conservatives, such as Nepean-Carleton MP Pierre Poilevre, might be open to voting in favour of the legislation.

“[Poilevre] has said he is listening to his constituency by voting against this, so where are the constituents in favour of this legislation?” asks Marchildon. “He seems to be going with which way the wind is blowing, so we need to get some wind blowing in Nepean.”

The federal government, under the leadership of former Prime Minister Jean Chretien, originally referred its proposed same-sex marriage bill to the Supreme Court in July 2003, after announcing earlier that year it would not appeal the Ontario, BC or Quebec decisions that ruled in favour of gay marriage.

A total of four questions were referred to the SCOC by the federal government regarding the constitutionality of its proposed legislation. The justices, however, declined to answer the fourth question – tacked on last January by the incoming prime minister Paul Martin – that asked the court whether excluding same-sex couples from civil marriage is compatible with the Charter.

In addition, the SCOC ruled that religious officials opposed to same-sex marriages would be protected by the Charter “from being compelled by the state” to bless those unions.

Currently, same-sex couples can legally marry in the provinces of Ontario, British Columbia, Quebec, Nova Scotia, Manitoba, Saskatchewan and Newfoundland and Labrador, as well as the Yukon.

But Marchildon says much work is still to be done to ensure all same-sex couples throughout Canada have the equal right of civil marriage.

“I guess the dangerous waters that we are heading towards right now are that we’ve won the legal debate, we’re struggling, though, to keep the upper hand in the political one,” says Marchildon. “We’re close but we’re not out of the woods yet, and we are really asking people to make a concerted effort to see this thing through to successful completion.”