Pop Quiz on Same-Sex Ruling

Let us get a few things straight about the recent Supreme Court reference on same-sex marriage. First, the reference was significant in largely a juristictional sense. The court ruled that the federal government, not the provincial governments, had the power to decide whether or not to extend marriage rights to same-sex couples. This was bad for Ralph Klein, but no one else.

Second, the court in no way ruled that denying same-sex couples marriage rights constituted a violation of their section 15 equality rights. In fact, the court refused to answer this question as it was asked. Does this mean that the court is indifferent to the question? Hardly; the court had a mountain of jurisprudence from lower courts (in BC and Ontario in particular) upon which it could have decided the question on the basis of precedent alone. Instead, the Supremes essentially snubbed their noses at multiple lower court rulings which found that denying them marriage rights infringed upon their Charter rights.

People seem to have missed that, but they did initially notice that the court had displayed a significant amount of judicial restraint. By refusing to answer the question, the court instructed Parliament to decide on its own.

So the question is: Why is everyone acting like the court has already tied the hands of Parliament and that the free vote on same-sex marriage won’t mean anything?

Paul Wells and Jeffrey Simpson have already made the case that the free vote won’t matter. And Cotler has argued that to maintain the traditional definition of marriage, the government would have to invoke the notwithstanding clause against the recent ruling. Against what aspect of the ruling would notwithstanding be invoked?

As one might expect, it suprises me less to discover that the Liberal government is full to the brim with silly dilly-dallerers than to find that some of the leading political columnists in Canada cannot cut through the suferfuge put up by the government.