Marriage Scenarios

[theWatcher]

Marriage Scenarios

The same sex marriage issue is one of the most divisive issues our country has ever faced. Putting aside the emotional side and just thinking logically, what possible sequences of events could happen?

Scenario #1 Same sex marriage bill is passed.

The Liberals force the bill to pass by threatening their own members with expulsion or enough MP's vote for it of their own choice. It might be presented as an open vote, with hidden threats or reprisal.

This results in the courts determining that individuals are free to marry. The courts uphold the rights of churches to refuse same sex marriages. The rationale here is that an individuals rights can not be used to infringe upon a groups rights (can’t force a church to marry gays), but also that the group cannot infringe upon an individual’s rights (gays can still get married outside the church).

Scenario #2 Same sex marriage bill fails or the PM withdraws it

The Liberals declare a free vote and the motion fails. They withdraw the bill. The courts decide the same thing as Scenario #1.

This is where it starts to get nasty. It becomes a major issue in the forthcoming election, or an election is immediately called to resolve the issue. If the Liberals are returned to power the country is left with the status quo. But if an opposing party comes to power….

Scenario #3 New party is given a mandate to squash the same sex marriage bill

How would the new party go about doing this? If they draft new legislation the Supreme Court can declare it unconstitutional. Are the courts lords and masters of us all? Is there any recourse if the majority of Canadians decide that they don’t want this?

I see this as a very tough issue unprecedented in Canada’s history. Does anyone have any views about the mechanics of what could happen? I’m trying to discuss the procedural sequence of events as opposed to the partisan/religious angle of things.

[dnsfurlan]

According to columnist Jeffrey Simpson of the Globe and Mail (in an article I provided a link to in another forum), the Supreme Court is ultimately going to decide this because:

- Since we adopted the Charter in '82 we became a constitutional democracy and left it to the Supreme Court to be the ultimate arbiter of what passes as law in this country (something to that effect)

- Yes, there is the notwithstanding clause, which allows the federal or any provincial government to withdraw from any court decision for a period of five years. But Simpson thinks that there is no government that would do this, mostly because the courts are seen as more popular than the legislatures.

So, if you believe Simson, the Supreme Court is going to decide this and no one is going to stop it.

I don't quite agree with this defeatist perception of the system. Such a state of affairs cannot remain indefinitely. At some point, I think Canadians will want to take some power away from the courts. The question is whether the issue of gay marriage is it.

Could Ralph Klein possibly use the clause in order to avoid having to issue licenses for such marriages? He has talked about it. Doing it is quite different.

[dnsfurlan]

With the Pope weighing in on this issue, does anybody have an idea of what some of the legal ramifications might be in relation to religions if the Supreme Court rules in favor of gay marriage?

I know that a part of the reference the Chretien government sent to the Court explicitly states that the ruling is not to apply to how various religions define marriage. But I wonder.

Its the position of Stephen Harper and the Alliance that if the Supreme Court of Canada approves gay marriage, which many seem to think is a certainty, then the top appeal courts of the provinces will eventually apply that standard of discrimination to religious institutions - something that has happened in other cases (I think one example was a homosexual teacher in Alberta who was not allowed to be fired by a religious school board on the basis of sexuality). Does that argument actually hold any water? Are there any legal minds out there who might have a clue. I think this is one of the more important points in this argument, since many might relent if assured that gay marriage will only be civil - and not religious?

[Hugo]

The Supreme Court already ruled on this issue less than a decade ago, and found in favour of the traditional definition of marriage. I believe this is why it's going to be put to a vote in Parliament, since the politicians know that the Supreme Court isn't stupid or forgetful enough to overturn that which they themselves decided just a short time ago. I could be wrong, but I think the Supreme Court is against the liberals on this one, and they know it.

[Ronda]

I apologise, I don't remember who wrote the following column but I copied and saved it a while ago.

My conspiracy theory is rooted in a court case I've written about a few times over the years, the 1995 Egan vs. Canada judgment in which the Supreme Court of Canada drew a line in the sand regarding same-sex marriage, essentially saying that the government could legalize it, but it really wouldn't be marriage.

The case involved James Egan and John Nesbit, a gay couple who claimed to have lived together since 1948. They claimed they were discriminated against because the Old Age Security Act didn't let Nesbit claim a spousal allowance under Egan's old age security benefits.

The Supreme Court ruled in the case that gays and lesbians were protected from discrimination under the Charter of Rights and Freedoms. But the court also said that Parliament was justified in refusing spousal-pension allowances because marriage is an institution for men and women only.

Indeed, the Supreme Court wrote that "marriage is by nature heterosexual. It would be legally possible to define marriage to include homosexual couples, but this would not change the biological and social realities that underlie traditional marriage."

Ironically, in retrospect, the Supreme Court also said that "marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions.

"But its ultimate raison d'etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship."

Well, as we all saw over the last little while, those legal traditions apparently weren't so firmly rooted after all, because all it took to uproot them were a few lower-court decisions in B.C., Quebec and Ontario and the government caved without even going to the Supreme Court.

But to do so, those courts had to essentially ignore the Egan ruling.

I've always found that more than a bit bizarre. After all, the 1995 Supreme Court ruling was firmly in the post-charter era and while the case wasn't on gay marriage per se (it was more about gay common-law marriage, if you can see that distinction) the highest court in the land did make a very strong statement on the nature of marriage.

Yet a series of lower courts have basically decided to ignore what the Supreme Court had to say about marriage and forge their own path - one that the Liberals are more than happy to accept, as they get to get their nice progressive definition of marriage while deflecting the flak back on the courts who did the heavy lifting for them.

So let's connect all the dots: In the one court case in which the Supreme Court of Canada had every opportunity to expand the definition of marriage, it steadfastly refused to do so. But for lower courts to expand marriage to include homosexual couples, those courts had to either pretend that the Egan case didn't exist or acknowledge the case but then ignore what the Supreme Court said to instead rely on the all-mighty Charter of Rights and Freedoms.

And the federal government, faced with a handful of appeal court rulings changing the definition of marriage, decides that the issue is not worth taking to the Supreme Court of Canada for a final declarative ruling on what constitutes marriage - the same Supreme Court that eight years ago in the post-Charter era ruled that marriage was exclusively a heterosexual institution. And the Supreme Court can't very well recant its own ruling from just eight years ago, could it?

All the government lawyers would have had to do to win this case is read back the appropriate portions from the Egan ruling and ask the court to uphold that. It would have been the simplest case in the world to win. The Grits decided not to.

Funny, isn't it? I don't really know what's going on with the politics of all this. I think the legislature will pass it, even though only 3 yrs ago they voted to uphold the traditional definition of marriage. I don't know what's happened in the last 3 - 8 yrs that's been so drastic. It seems that the Supreme Court could easily rely on the Egan case as precedent and uphold the definition or the legislature could hold up their overwhelming support of traditional marriage from 3 short years ago. It's odd.

[Lost in Manitoba]

Wether you are for or against same sex marriage, I was wondering how people feel about religious officials, such as the pope or that bishop in Alberta, publicly trying to influence the decision of our elected officials. I would say the Bishop is a citizen and has a vote, but the Pope threatening eternal damnation somehow irritates me. We criticize other nations and try to exert pressure, mostly for trade reasons or human rights abuses, and it is acceptable for them to criticize us fo the same. Is critisism of our public laws open to religious pressure, and should they be? Would you vote for a MP that chooses his stance on issues, by the dictates of a religious leader?

[Ronda]

I don't see why bishops or the Pope would aggravate you when numerous well-funded lobby groups do a much more efficient job. What's so wrong with a religious person?? They are hardly dictating policy. They are making their positions known and stating what their religion's position is. The Pope's no fan of abortion either but we're doing that anyway and I have yet to hear an MP or ANYONE say they are against something because "the Pope says so". They may agree with the religious reasons and agree with what the Pope says, that's a different story. Besides, just because a religion holds a position, that doesn't necessarily make it "wrong". They are against lots of things that you would likely be against too.

Would Muslim or Jewish leaders making statements aggravate you as much?

[Littlefinger]

I think the legislature will pass it, even though only 3 yrs ago they voted to uphold the traditional definition of marriage. I don't know what's happened in the last 3 - 8 yrs that's been so drastic.

Don't forget, that judgement was a 5-4 ruling. It was not a clear cut judgement, not by a long shot.

since the politicians know that the Supreme Court isn't stupid or forgetful enough to overturn that which they themselves decided just a short time ago.

As I say, there are different justices on the Supreme Court now. Courts are free to change their minds, and they often do when old justices retire and replacements are appointed.

In answer to Ronda's last question, I have difficulty with any religion that attempts to impose its morality on society, whether it be Catholicism, Judaism, Islam, whatever. How would you feel if an imam insinuated that Muslim politicians must vote to revoke a woman's right to vote or face eternal damnation because it is against sharia law? (I have no idea whether this is actually specified in original sharia law, but given its general views on women, I wouldn't be surprised if this is a more contemporary addition).

then the top appeal courts of the provinces will eventually apply that standard of discrimination to religious institutions

I really have no idea, but freedom of religion is a fundamental right that is protected by the Charter. I guess it would be up to the courts to determine whether permitting civil same-sex marriages sufficiently satisfies a homosexual's equality rights. My own suspicion is that the federal government's proposed legislation will mirror the guidelines set down by the Supreme Court, namely that religious institutions will retain the right to prohibit same-sex marriages.

[Neal.F.]

As for religious institutions retaining the right not to perform same sex "marriages" , I am sure that will be in the bill, however, I can guarantee you that the gay lobby is preparing RIGHT NOW, to take some evangelical or Catholic church to court on grounds of discrimination, over this, and mark my words, with the courts stacked in their favour as they are, their chances of winning are very good.

I think this wil be issue that gets people going a,d may even tople thois Liberal regime. It could well be the trump card that Jean Chretien is playing in a last ditch bid to stop Martin frombeing PM....at lease being ELECTED PM.

The CA should really start making hay on this issue, and make it THE defining issue of the next election, and set his own terms of battle, rather than let Martin fight on his own turf.

THe gay lobby has this whole thing well thought out. the goal in all of this is not to actually have marriage, but to destroy one of the most fundamental pillars of Canadian society and the Church which they see as an oppressor to their sexual liberty and they want to destroy this swoern enemy of their lifestyle so it never threatens them again. In fact, conspracy theorist that I sometimes am, I would not be surprised if most of the allegatoions of wrongdoing being made against priests are actuall being made by the gay lobby with the destruction of the church in mind. When the accusation of molestation is made, it is enough to ruin a man whether he is guilty or innocent.

[Pellaken]

gays have just as much right to marry, as churches do denying to marry them. if the "gay lobby" did sue a church for discriminaiton because they will not marry them, I will stand on the side of the church, protecting freedom of religion.

as for the pope telling the PM what to do, the answer is simple.

if you chose a religion, you must them live by it's laws (if you chose to do so). if Cretch wants to go agianst his own religion by supporting gay marriage, then he can do so.

should the pope influence our MP's?

no

should the pope influence roman catholics?

yes

should the pope influence roman catholic MP's?

weather are MP,s the PM, or a regular person, if they are roman catholic, they must listen to the pope.

[Littlefinger]

Pellaken, I disagree with your last statement. Catholic Members of Parliament are accountable to the people of Canada, not to the Church. The Pope and his bishops are free to dictate how Catholic MPs should conduct their own private lives but they should not be allowed to impose their conceptions of Catholic morality on others.

As legislators, MPs must take on a wider perspective that encompasses the views of all Canadians and the laws of the land, not simply the views of the religious and the decrees of the Vatican.

[Neal.F.]

Riddle me this, Littlefinger.

Do you think that the Pope has the right to remind these MPs of where the church to which many of them claim to bleong stands? or do people of fath have to keep their mouths shut?

How do you like the way Groups like EGALE lobby politicians to attempt to sway their votes?

How does EGALE Speak for the values of the Canadian people to whom you say MPs are accountable, while the Roman Catholic church does not?

Is participation in civic life open only to those left wing secular groups with whom you agree?

[Littlefinger]

Neal,

Certainly, the Church can preach what it believes. However, merely proclaiming that it is opposed to same-sex marriage is one thing. Asking MPs to choose between religion or country is quite another.

The Church is free to preach but not to impose.

[Lost in Manitoba]

A muslim cleric in Iraq says that the US are evil infidels and must be thown out. Public leaders, devout in their faith, wage an anti-american campaign. Can you defend this as being right? If not, how can you defend any other religious official trying to influence any other public official?

[Neal.F.]

Actually, the Vatican statement stated that the MPs would be doing their country a grave disservice by not standing up for the time tested instutution of marriage.

They are asking the MPs not to choose their church OR their country, but asking them to choose BOTH.

Conversely, to do the opposite and support gay marriage, they are betraying (Yes, betraying) both.

[Littlefinger]

Well, that is the view of the Church, certainly. However, for those who believe that homosexuals should be afforded equal protection under the law, the Church's statement is in effect tantamount to asking them to choose between Church or country. For people who feel this way, choosing both is therefore impossible. Given that MPs are elected to represent Canada as a whole, there can be no question that they should choose their country over their Church.

[Ronda]

But it doesn't bother you that politicians are overrun by lobby groups constantly?? It doesn't bother you that, for example, EGALE lobbies the gov't ferociously??? How do they represent Canada? But a Catholic leader being reminded that they count themselves Catholic and the Catholic church is against what they're doing is a problem? At least the Church is doing it publicly instead of behind closed doors or in a court room, the way lobby groups do things.

[Neal.F.]

Equal protection under the law is one thing, and homosexuals have always had that... as people. What they do in what is supposedly, the privacy of their bedrooms (which they seem to want to thrust out in the open for all to see) has nothing to do with protection under the law.. If somebody wanted to beat up a homosexual, then the same penalty would apply to someone who wanted to lbeat up anyone else. It's called the assault law.

If they want civil unions, I am not in favour of that, but it is something most people could live with....grudingly, but why do they have to have the word marriage?

The answer is simple. The radical activist are out to smash the three monotheistic "patriarchal" (as they call them) religions, which have always stood foursquare against homosexual behaviour. They don't, for the most part have any interest in marriage except to destroy it.

As as for choosing their country over their church, let me first explain that their Church represents a system of values that they believe were handed down by God Himself. So it is less loyalty to the organization of the church over the organization tehy call their country. It is applying the beliefs they believe came from the creator, for the benefit of mankind, to make the country into a half decent place, rather than the cesspool it has become since that maniac Trudeau came to power.

And as for you statement of choosing church over country, one must ultimately be loyal to one's set of beliefs which if they are of any value, will not be compromised to fit the whims of the times....

[Lost in Manitoba]

When I was in the navy, I asked the chaplain about this very question. 'Where does your loyalty lie?' He said something to the affect that he would obey the orders given him, any orders, by his CO, even if it was against his beliefs, but he would expect to account for it when he stood before God.

[Neal.F.]

And the MPs will have to answer to God for theoir actions as well....

More to the point, whose marching orders would they be following should they vote for this motion?

That of the "country" or the political party to which they belong?

I think it;s a question of loyalty to a political party (and those forces behind it) , or to the values taught by one's church.

[Pellaken]

Pellaken, I disagree with your last statement. Catholic Members of Parliament are accountable to the people of Canada, not to the Church. The Pope and his bishops are free to dictate how Catholic MPs should conduct their own private lives but they should not be allowed to impose their conceptions of Catholic morality on others.

As legislators, MPs must take on a wider perspective that encompasses the views of all Canadians and the laws of the land, not simply the views of the religious and the decrees of the Vatican.

I disagree

if your religion says the pope can tell you what to do, and if you follow your religion, then the pope CAN tell you what to do.

[Pellaken]

And the MPs will have to answer to God for theoir actions as well....

which is why I hope they vote for the bill.

it's my religion's belif that anyone who causes anyone else pain, by telling 2 people they cannot marry for example, will go to hell.

well

there is no hell in my religion

but you'll be re-incarnated as a crazy person, like me

[Hugo]

it's my religion's belif that anyone who causes anyone else pain, by telling 2 people they cannot marry for example, will go to hell.

Hmmm. Will the judge who sentenced Jeffrey Dahmer go to hell, for causing him "pain" by forcing him to desist from killing and eating people, from which he derived pleasure? Or you do actually have a concept of the greater good - in which case, is it not better to sacrifice the feelings of 3% of the population in order to preserve those of the other 97%?

[Scotchneat]

Marriage is a legal construct. You might as well say that homosexuals can't incorporate a limited liability company, because such company wouldn't be "creative" or "positive".

Those arguing against "homosexual marriage" can only fall back on the "thin edge" or "slippery slope" arguments ie "Once gays are allowed to marry, all hell will break loose." It's ridiculous. Gays will marry and after all the hand wringing, we'll be wondering why it didn't happen sooner.

[dnsfurlan]

Marriage is a legal construct? Thats all it is to you?

And those arguing against "homosexual marriage" don't just rely on the slippery slope argument. Have you been actually reading these forums?

You may want to advocate something simply by characterizing the other side as "ridiculous" and suggesting that because it will be a fait accompli it shouldn't be bothered with anyway. Accrding to that logic, why should homosexuals bother bringing this to the courts? If its going to happen anyway, lets just let it happen. Why argue it in front of the courts? Doesn't that adhere to your happy-go-lucky philosophy?

I thought we lived in a democracy, where people can have a say if they disagree with something. Don't you like hearing what the other side has to say on issues affecting our society? Or do you think that everyone should just let things happen, regardless of whether it might be right or wrong?