Saturday, December 09, 2006

What the Court decided

One person, in response to this post, made the rather incorrect comment that

In other words, the court refused to find a right to marriage for gay couples in the Charter. So stop claiming otherwise.

Such wonderful semantic nonsense. First, the court no more "refused to find a right to marriage for gay couples" than it "refused to find a right to make ill-informed comments based on a complete failure to understand the issues," or than it "refused to find a right to eat cabbage in the comfort of one's own home."

The Court declined to answer the question. To wit:

The government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this question. The parties to previous litigation have relied upon the finality of their judgments and have acquired rights which in our view are entitled to protection. Finally, an answer to Question 4 would not only fail to ensure uniformity of the law, but might undermine it. These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, convince the Court that it should exercise its discretion not to answer Question 4.

Read the opinion. Courts refuse to answer questions all the time. When the Supreme Court of Canada or of the US doesn't take a case for review, it's not denying it or however you want to phrase it. It's not answering the question one way or the other.

But let's put it this way: As the law stands, the Courts of Appeal for Ontario, BC, and Quebec--the highest courts in those provinces--have declared that gay marriage is required by the Charter. The trial courts in every province and territory but NWT, Nunavut, PEI, and Alberta have said the same, and the Government did not appeal. Until the Government appeals those to the Supreme Court, the law is crystal clear and those decisions stand. Many, many provincial Courts of Appeal decide cases that set precedent that never get appealed; just b/c the Supreme Court hasn't spoken on the issue doesn't make it any less binding.

And please, does anyone who's not smoking tar sands in Red Deer actually think that the Supreme Court, if faced with the question, would not affirm Ontario, BC, and Quebec?


Anonymous said...

You know, I'm at a point where I don't care what the Courts have said. It's all about mindset. I am 59 years old, nearly 60. 10 Years ago I may not have accepted the SSM because that was the way my age group was brought up (brainwashed). It was the norm for us - one-man-one-woman. I've looked into myself (not the Charter or the Courts) to find out why I would think I had the right to decide how two adults lived - I have no right.

If this came up 10 years from now it wouldn't even be such an issue because the youth today have learned to think out of the box. It's a generational issue.

SSM is here and hopefully here to stay. Let's get on with more important issues. Where are all these right-winged conservative clergy when it comes to say, Darfur.

I'm glad I soul searched and I wish others would without the influence of the narrow-minded clergy who are getting filthy rich in the business of control and religion.


Dean P said...

Sandi--Bravo. I agree and it's nice to hear people say that SSM is good because it's the right thing to do. I always hated Paul Martin's "The Charter Made Me Do It" approach.

Some days I think you're right that it's a generational thing; and then I run into young people who think it's wrong and evil. Maybe the numbers are getting smaller, but some days, I have doubts.