Gay marriage legislation introduced in Canada

[davidinalameda]

http://www.advocate.com/new_news.asp?ID=9301&sd=07/17/03

The Canadian government today unveiled a draft law rewriting the country's official definition of marriage to a "lawful union of two persons to the exclusion of all others." The one page gay marriage bill will also today be forwarded to the Canadian supreme court for review, but a judicial response is not expected until October when the justices are set to reconvene. The federal government has said it would like to tackle the legislation this fall in the House of Commons and have the new law in place by the time Prime Minister Jean Chretien retires in February.

[iverglas]

1. the questions put to the Supreme Court

In Canada, a government may submit a constitutional question to the Supreme Court of Canada without there having to be parties to a case.

In this instance, it is asking the Court for an opinion as to whether the legislation is within federal jurisdiction, before it moves to enact the legislation.

A little while ago in Civil Rights, I explained why Alberta's threat not to issue marriage licences to same-sex couples was hollow. Alberta has jurisdiction over "the celebration of marriage in the province", but the federal government has jurisdiction over "marriage", i.e. what marriage is and who may be a party to it. (The only other exercise of that jurisdiction has been to prohibit the marriage of people too closely related by blood.)

Alberta's refusal to issue a marriage licence would be just as unconstitutional -- under the division of powers, which it can't "override" as it can override equality rights -- as Alberta refusing to let people fly planes over Calgary if they didn't pay a tithe to the local Pentacostal church. No jurisdiction over aeronautics, or marriage.

The questions the feds have referred to the Court are:

http://www.globeandmail.com/servlet/story/RTGAM.20030717.wsexx0717_2/BNStory/National/

Does the act fall within the exclusive legal authority of the federal government?

Does the act respect the constitutionally guaranteed rights expressed in the Charter of Rights and Freedoms?

Do the religious-freedom guarantees in the Constitution protect religious officials who refuse to sanctify same-sex marriages that violate their beliefs?

Of course, we all know my opinion on that last one.

When the government delegates someone to perform a government function -- licenses the clergy or anyone else to marry people -- the people to whom the authority is delegated may not exercise it unconstitutionally -- in violation of constitutional equality rights.

The provincial government delegates the licensing of physicians to the provincial College of Physicians and Surgeons. If the College refused to admit someone because s/he was white, or Baptist, or heterosexual, the government would have to withdraw the delegated authority.

Ditto people who perform marriages. As long as they're performing civil marriages, recognized by the state and not just by the church, they must absolutely not be permitted to discriminate. But that one isn't within the federal government's jurisdiction anyhow -- it's the provinces who license marriage performers -- so I don't even know how the Supreme Court could answer it.

Meanwhile, in other news, David Mainse, the Pentecostal cleric who hosts 100 Huntley Street, the northern equivalent of The 700 Club, has just stepped down and been replaced by, surprise, his son. I don't doubt partly so that he can rant and rave about political matters like this without jeopardizing the outfit's charitable status. What I heard him saying on the radio yesterday was something along the lines of how we're walking on his face with all this same-sex marriage stuff. Given how I'd love to walk on his smarmy face, this made me feel all warm inside.

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