Guy Wilson-Roberts: Canadian PM dead set on gay marriage

Opinion

This week, the Canadian Government introduced into the House of Commons legislation to legalise same-sex marriage for Canadians.

If passed, it will change the legal definition of marriage from the "lawful union of one man and one woman" to the "lawful union of two persons to the exclusion of all others".

By proposing to change the definition of marriage in this way, the Canadian Government is going much further than New Zealand has done with its civil union law. Prime Minister and Liberal Party leader Paul Martin has explicitly rejected civil union as a compromise.

Martin has threatened to take his Liberal minority Government into an election on this issue, and is arguing that it is about upholding Canada's Charter of Rights and Freedoms, which is Canada's constitution.

Conservative Party and Opposition leader Stephen Harper is promising a fight over the legislation, and Martin is finding dissent in his own party. A "free" vote, like New Zealand's conscience vote, will be held on the legislation.

The issue of same-sex marriage arose in Canada after decisions by provincial courts in British Columbia and Ontario to allow same-sex marriages.

Hundreds of same-sex couples have been married on this basis. In June 2003, after an Ontario Court of Appeal ruling upholding same-sex marriage, then Prime Minister Jean Chretien drafted legislation to take the change to the federal level.

First, though, he asked the Canadian Supreme Court for guidance so the legislation would withstand legal challenge.

The court was asked to rule whether Parliament had the power to redefine marriage, whether same-sex marriage was consistent with the Charter of Rights and Freedoms, and whether religious freedom allowed churches that did not support the change to be excluded from having to perform such ceremonies.

When he became Prime Minister in late 2003, Paul Martin also asked the court to rule whether limiting marriage to just a man and a woman was unconstitutional.

Last December, the Supreme Court gave the go-ahead to Parliament to change the definition of marriage, ruled that same-sex marriage was consistent with the charter, and argued that religious freedom allows for churches to exempt themselves from performing services.

The court was cautious in the language it used in its judgment to support same-sex marriage. Also, it did not give an opinion on Martin's fourth question. The court argued that by not appealing against decisions in provincial courts (with four more provinces subsequently allowing same-sex marriage), the Government had, in effect, accepted that the law had changed and it was not in the purview of the court to comment on this.

The court's decision essentially affirmed parliamentary sovereignty on this issue. By not declaring the requirement for opposite sexes in marriage to be unconstitutional, opponents of the change have ammunition to argue against the rights and freedoms approach being taken by Martin.

Because of the court's lack of opinion on his fourth question, Martin has also had to concede to a free vote. The legislation is not so much defending the charter, which would have allowed him to force his MPs into line; rather, it is only consistent with the charter, as the Supreme Court ruled.

Because of Canada's federal system, the legal battles may not be over. Alberta's provincial Government has refused to allow same-sex marriages.

A decision by Alberta's Appeal Court supporting a traditional definition of marriage could take the issue back to the Supreme Court.

With the legislation introduced, many of the arguments used by opponents and proponents of New Zealand's civil union law are being repeated in the Canadian debate.

But with Canadians considering the actual definition of marriage, not just the legal recognition given to same-sex partners, the arguments seem much more pertinent and intense.

Proponents have been buoyed by court decisions, and are arguing for equality and fairness - a human rights issue. Opponents are making the usual appeals to notions of family, sanctity of marriage, interests of children, and higher morality.

In a 2003 poll, about 37 per cent of Canadians were in favour of a change to the definition of marriage and 37 per cent supported a civil union-type proposal. Only 19 per cent were opposed to any legal recognition at all.

Polls, with the question simply "yes" or "no" for the legislation, show a slim majority in favour. Dividing lines are age, gender, place of residence and religious affiliation.

Opposition leader Harper is arguing for a civil union proposal, similar to that of New Zealand. Supporters of the Government's legislation have responded that, given successive court rulings at provincial and federal level to constitutionally allow same-sex marriage, civil union is not the same, it is less.

Comparisons have also been made between civil union proposals and racial segregation that "equal but not the same" is not a sufficient level of recognition for same-sex couples and is a form of discrimination.

The concept of civil union - New Zealand's liberal answer to the question of recognition for same-sex partnerships - is in Canada the compromise offered by the conservative opposition.

The legislation seems likely to pass. The Globe and Mail national newspaper polled MPs in the House of Commons and found that 139 were in favour of the legislation, 118 against, with 154 votes needed to pass it. The undecided number 49, so it is from this group that the Government expects to get its additional 15 supporters.

For residents in Canada's provinces who have legally sanctioned same-sex marriage, legislative change will simply give federal recognition to the provincial status quo.

In British Columbia, the main local issue in the next few months will be the referendum on proportional representation for provincial government elections. As one columnist in the Vancouver Sun wrote: "Forget concerns that same-sex marriages will destroy traditional marriage and the traditional family. Heterosexuals have already taken care of that."

Prime Minister Martin's threat to call an election on this issue is seen by many commentators as a means to pull his backbench MPs into line to support the legislation. Clever politics or grandstanding aside, though, it was a gutsy position to take.

One cannot help but wonder if a New Zealand Prime Minister will ever be prepared to do the same in support of a new definition of marriage.

* Guy Wilson-Roberts is a former public servant now writing and researching in Canada.