The recent Supreme Court reference decision on same-sex marriage is interesting for only two reasons. First, it provides a good illustration of the operation of judicial review in Canada. Second, it highlights the differing positions of Canada's various political actors with regard to rights. I'd like to say a few words about these matters. Before I do so, however, I want to be clear on one point: this was a reference; not an actual case. A reference words like this: the federal government asked the Supreme Court to imagine how it would respond if a case came before it that relating to same-sex marriage. The substance of the Court's decision in this regard related not to any particular law currently in operation in Canada, but whether or not a change to the federal Marriage Act would be constitutional. The Supreme Court said "yes" and that discrimination against a defineable social group fractured the guarantees of equality under the Canadian Charter of Rights and Freedoms. This much we already knew. There are a raft of decisions at the provincial level indicating exactly the same thing and the fact that the Marriage Act is federal jurisdiction and so the federal government can change it is, well, something that anyone who has taken intro to Canadian Studies knows. The substance of this decision, then, is limited, particularly since we don't have new Marriage Act (or, more probably any changes to the existing act) to consider.
With this in mind, let me say a couple of words about judicial review because this reference indicates clearly how judicial review operates in Canada. What the Court said in this reference is that judicial review was both important to the protection of rights (again, any intro to Canadian Studies student knows this) but that it was not the court's job "to boldly go" in front of Parliament. It was Parliament's job to frame legislation; the courts job to see if it met the standards of the Charter (that is, the standard, I emphasize as I have in other blogs) that Canadians have set for themselves in terms of their higher principles. Exactly. This is the way judicial review has by-and-large operated in Canada. Those who complain about an activist court, simply have not been paying a great deal of attention to what the court has actually been doing. In Canada, judicial review operates in interaction with Parliament (the elected representatives of the people); unlike the US, which has a stricter division between orders of government and different set of constitutional principles. This reference, then, shows us the nature of Canadian judicial review and is of interest precisely in this regard.
Second, this decision highlights the views of different political actors on with regard to rights in general. The Hon. Ralph Kline, Premier of Alberta, has suggested that there might be a national referendum on this issue. Stephen Harper seems to be caught between what I take to be his own commitment to equality (I'm not fan of Mr. Harper, but I believe we should take him at his word and trust his good intentions) and the so-called "social conservatives" who oppose equality. The Liberal Party seems to be in a very similar dilemma. What we can learn from the reaction to this decision is the political nature of rights in Canada and the degree to some people support a vision of Canada as country committed to equality and those who don't. As well, the degree to which some people may find themselves, for political reasons, forced to compromise on their principles.
Personally, I would oppose the idea of a referendum on equality. I want to be clear on this. All the evidence we have is that if asked to vote on this question "Do you support equality for all Canadians, straight or gay" and then add, if one wanted, "say, with regard to marriage" it would go through with a comfortable majority. Most Canadians, I belive, take their principles seriously. The problem is this: I don't believe that a society can determine fundamental rights by vote. IOW, I don't think we as Canadians can say "OK, you group over here, you can be equal to us only if we vote and approve your right to be equal." As Canadians we either believe in equality or we don't. If we don't, let's not disguise that fact. I happen to support the ideal of equality, but if Canadians don't, then, they don't and the opponents of equality (who believe that any minority group is equal only if the majority allows it to be) should stand up an proudly declare their support for inequality. Let's have that debate.