Wednesday, February 25, 2004

Constitutional Questions:

It appears as if President Bush is supportive of an amendment to the US Constitution so as to preserve marriage as between one man and one woman. Whatever one thinks of his reasoning, he is showing leadership on a hot issue of the day. How very American.

Why don't Canadians begin asking what the Canadian Government will do if the Supreme Court rules, as did the Massachusetts Court recently, that "same-sex marriage" is required by the Constitution?

We have democratic options that keep the debate alive and don't write it in stone, as does a Constitutional amendment. The Supreme Court, in Canada, unlike the US Supreme Court need not have the last word. Canadians have another option: Section 33 of the Charter of Rights and Freedoms which allows a law (or laws) to continue in effect "notwithstanding" a judicial decision to the contrary.

Such a declaration has requirements for it to be passed properly and must be renewed from time to time meaning that the "debate" remains on the political stove-top.

And, by the way, on the question of the nature of marriage, a Section 33 declaration could go in either direction.

For example, if the Supreme Court ruled that the Canadian Constitution does NOT require same-sex marriage, the Federal Government (by a narrow margin a majority of currently sitting M.P.'s, with a large number of abstentions, indicated they do not support traditional marriage) could invoke Section 33 to allow same-sex marriages anyway.

They could also, if the Supreme Court decides that the Canadian Constitution DOES require same-sex marriage, invoke Section 33 to keep same-sex marriage illegal anyway.

The last word is not the Courts. That is reassuring and allows for matters that are as fundamentally contested as the nature of marriage to be kept alive for debate and analysis. In a country as massively avoidist and apathetic as Canada that might be a good thing eh? Mind you, if we don't care then the final word will be the Courts and Canadians will just have to consider then who does run the country.

Iain T. BensonĀ©