Some time this summer Canada will almost certainly become the fourth
country in the world — after Belgium, the Netherlands and Spain — to
make same-sex marriage the law of the land.
Last week the federal House of Commons passed Bill C38 — the Civil
Marriages Act — which not only changed the traditional definition of
marriage, but outlawed it as discriminatory. Civil marriage, the bill
says, is no longer the union of a man and a woman, but simply the union
of two persons. The bill still has to pass the Senate, Canada’s
unelected upper house, but that’s hardly more than a formality. The
last time senators rebelled against tradition and threw out a bill
passed by the elected Commons was in 1991, when they killed the
Conservative government’s bill to regulate abortion, leaving Canada one
of the few jurisdictions on Earth with absolutely no law governing the
That’s not a hopeful precedent for the supporters of traditional
marriage, who — depending on who’s polling and how you interpret the
responses — make up about half the adult population.
Those numbers are certainly respectable, and while they include
elements of the God-hates-faggots religious fringe, the spokesmen who
appeared before parliamentary commissions and wrote opinion pieces in
the newspapers and participated in the radio and television discussions
were generally thoughtful and intellectually rigorous
The traditionalists also had some muscular support from the Canadian
Conference of Catholic Bishops, as well as from some individual members
of the hierarchy, notably the outspoken Bishop Fred Henry of Calgary
and Cardinal Marc Ouellet, the archbishop of Quebec and Canada’s
primate. They didn’t lack for political support, either. Nearly all 98
Conservative MPs and about a quarter of the ruling Liberals in the
Commons opposed changing the definition of marriage and ultimately
voted against Bill C38, some at great political cost.
But in the end, the traditionalists simply failed to persuade the
other, generally younger and hipper half of the population that
legalising same-sex marriage would make much difference to their lives,
one way or the other. "If you’re opposed to same-sex marriage," one of
Canada’s more fatuous newspaper columnists wrote, "just don’t have one."
That ho-hum attitude was reflected in the nation’s response to last
Tuesday’s 155-138 vote in the Commons. There was some quiet rejoicing
from supporters, like openly gay MP Réal Ménard, who tearfully told
reporters after the vote that at last he felt like a full citizen (an
odd comment from someone who belongs to the separatist Bloc Québécois
and presumably aspires to be the citizen of quite another country). And
there was some defiant talk from opponents like Charles McVetty of the
Defend Marriage Coalition, who promised the fight would continue.
But many if not most Canadians reacted to one of the most stunning
re-weavings of the nation’s social fabric since Confederation with a
mixture of relief and complacency. "Thank Heavens that’s over,"
Montrealer Tylor Rochford wrote to his local newspaper. "What a
complete waste of time." By the end of the week, even the news media
had pretty much dropped the story, and Canadians went back to worrying
about rising gasoline prices and the impact they’ll have on their
traditional summer trek to the beach or the mountains.
How did Canada get here from there?
It’s hard to believe that just a decade ago, same-sex marriage would
have been unthinkable. In fact, as recently as 1999, the House of
Commons voted 216 to 55 to uphold the traditional definition.
How Canada got here from there brings to mind the old story about the
two ways to cook a live frog: Chuck it into a pot of boiling water,
they say, and it’ll be smart enough to leap right out again, or at
least try to, but put the same frog into a pot of tepid water and
slowly crank the heat up, and it’ll sit there cheerfully until it boils
The drive to same-sex marriage has been a little like that, relentless
but gradual — the heat rising steadily but comfortably. Tolerance of
homosexuality led to equal pension and health-insurance benefits for
same-sex partner, which in turn led to the regularising of such unions
which finally led, almost inevitably, to the push for marriage. In
retrospect at least, that 1999 vote looks more like a last stand for
the supporters of traditional marriage than a triumph. In fact,
traditional marriage in Canada has been in retreat for some time. Fewer
and fewer people choose it — especially in Quebec, where more than
half the annual crop of babies are born to unwed couples. And no
wonder: in the eyes of the law, marriage really has no more status than
long-term shacking up It’s also absurdly easy to get out of, as well.
Canada’s divorce laws make dissolving a marriage only marginally more
difficult than dissolving an apartment lease.
There’s little doubt that the deliberate emptying of marriage of any
status or content played a role in last week’s vote. But two other
distinct but related trends powered the drive to same-sex marriage: the
growing legal acceptance of homosexuality and the rise of the judiciary
as a political force to be reckoned with.
The influence of Pierre Trudeau
Both can trace their origins to Pierre Elliot Trudeau, the magnetic
French Canadian who ruled as Canada’s prime minister for most of the
1970s and 80s.
Trudeau was still justice minister when he decriminalised homosexual
acts in 1969, not, mind you, because he condoned such behaviour but
because, as he famously said: "the state has no place in the bedrooms
of the nation." More important, however, was Trudeau’s campaign to
rewrite the Canadian constitution in the 1970s. After a seemingly
endless series of interminable meetings, he and the premiers of the 10
provinces came up with a document that included an American-style
Charter of Rights and Freedoms. The charter was an instant hit with
Canadians in general, but especially with interest groups of all
stripes — including the gay-rights lobby. And judges, of course, loved
it. Suddenly all they had to do to promote their favourite social
causes was to find a creative way to apply the charter. For example,
Trudeau and the premiers deliberately left homosexuals out of the
charter’s list of protected "individuals or groups who are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age, or mental and physical disability."
But in the 1990s, the unelected justices of the Supreme Court ignored
the stated intent of the men who wrote the constitution, and simply
"read in" sexual orientation.
That opened the floodgates. Judges were soon instructing governments
and companies across the country on their obligations to provide
benefits to same-sex couples equal to those of heterosexual couples. In
April 2000, at the urging of the courts, Parliament gave same-sex
couples the same social and tax benefits as heterosexuals in common-law
relationships The judgments weren’t all financial, either. One Ontario
court ruled that the principal of a Catholic high school and the local
bishop could not forbid a homosexual graduate to bring his lover to the
school prom. More notoriously, Justice Rosie Abella of the Ontario
Court of Appeal reduced the age of consent for anal intercourse from 18
to 14 because, she argued, the higher age violated the charter right of
a 14-year-old homosexual to a basic form of sexual expression.
Given all that, it was almost anticlimactic when the British Columbia
Court of Appeal unanimously declared in May 2003 that limiting marriage
to heterosexuals violated equality rights. The court magnanimously gave
Canadians’ elected representatives two years to recognise same-sex
marriage before the judgment took effect.
But just a month later, the Ontario Court of Appeal short-circuited all
that by simply ruling that same-sex marriages were legal. Because
provincial governments actually administer marriages, same-sex couples
in Ontario could then wed without having to wait for a change of
definition. Like tumbling dominoes, courts in all the other provinces
except Prince Edward Island and Alberta quickly followed suit.
Finally in July 2003, then prime minister Jean Chrétien went cap in
hand to the nine justices of the Supreme Court to ask if Parliament had
the authority to pass a law allowing same-sex marriage. He also asked
if his government’s draft law respected the charter and protected
churches from having to perform marriages against their beliefs.
The only surprise about the outcome was how long it took the Supreme
Court to reach a decision. It wasn’t until last December — long after
Paul Martin had replaced Jean Chrétien at the head of the Liberal Party
and the government — that it enthusiastically upheld Ottawa’s
authority and applauded its efforts to promote sexual equality. By this
time, it’s worth noting, Rosie Abella was sitting on the court.
Even with such Supreme support, however, same-sex marriage wasn’t a
done deal. Paul Martin headed a minority government, and his caucus was
badly split on the issue. The fact that he had to deal with a number of
spending scandals left over from his predecessor’s reign didn’t help.
But Martin has pursued the issue with dogged determination. Without his
efforts, it’s unlikely that same-sex marriage would have come to a
vote. Given his weakness and his problems getting a budget passed, he
could easily have let Bill C38 die on the order paper.
Instead he persevered. The prime minister so infamous for prevaricating
that The Economist nicknamed him Mr Dithers was, on this issue,
unyielding. Why is something of a mystery. Mr. Martin is, to all
appearances, a serious and self-described old-fashioned Catholic. He
seldom misses Sunday mass, no matter how demanding his schedule.
His only explanation is that in a nation of minorities, you can’t pick
and choose what rights you defend. As a Catholic he might never attend
a gay marriage, but as a prime minister he can’t deny others the right
to do so. And that, of course, is the trap. The proponents of same-sex
marriage have managed to frame their cause in terms of civil rights.
Giving homosexuals access to marriage, they argue, is akin to giving
American blacks access to equal schooling and the front of the bus.
It’s an unfair and intellectually dishonest comparison, but it sure
Keeping the Quebecers happy
The struggle over marriage isn’t entirely over. Alberta Premier Ralph
Klein has vowed to do what he can – admittedly not much – to resist the
law, and Conservative leader Stephen Harper has vowed to repeal Bill
C38 should his party ever be elected to power. But three factors are
going to make it extremely difficult for anyone to reverse last week’s
decision. The first is Canadian deference to authority. The country was
founded on the principles of "peace, order and good government," not
"give me liberty or give me death." Canadians have always been better
than their American cousins at accepting authority, and they will, in
all probability, do it this time. To paraphrase Augustine: "Ottawa
locuta est; causa finita est." The second stumbling block is the
Canadian cultural and political elite. The defining characteristic of
its members — apart from an unrelenting liberalism — is a deep-seated
phobia of being mistaken for Americans. Legalising Ted and Fred’s
nuptials is certainly one way to distance the country from President
George W. Bush’s America.
The third is Quebec, the heart of French Canada. Just a generation ago,
it was among the most devoutly Catholic jurisdictions on Earth.
Families were huge, convents and seminaries full, and Mass attendance
virtually universal. But at some point in the 1960s or ’70s, Quebecers
deserted the church and embraced consumerism, statism and the sexual
revolution with the ardour of converts. The province now has Canada’s
lowest birth rate, lowest marriage rate, lowest church-attendance rate
and highest abortion rate. Quebecers are also far more enthusiastic
about same-sex marriage than other Canadians — which is odd given how
few Quebec heterosexuals actually get married. Keeping Quebec happy has
been the unspoken sine qua non of Canada’s national political parties
ever since the province started seriously flirting with secession in
the 1970s. Threatening to make Quebecers unhappy by changing a social
measure they like won’t make the Conservatives popular either in the
province or outside it.
Paul Waters is an editorial writer for the Montreal Gazette.