Image courtesy of Slap Upside the Head, 2008.
Lori Beaman | Canada Research Chair in the Contextualization of Religion in a Diverse Canada and Professor in the Department of Classics and Religious Studies at the University of Ottawa
Dear Barack (if I may):
It has come to our attention that you are having a little difficulty south of the border with the notion of equality, particularly as it relates to a cluster of issues roughly framed as “same-sex relations.” While I know that it is sometimes difficult to take advice from your younger and smaller (and some would say pinko commie) neighbour (and no, this is not a spelling error), in this instance we may be able to offer you some insights. We are still a little burned from the gross misrepresentation of our medicare system that occurred during your own health care coverage debates, but forgive and forget is a good neighbourly motto, don’t you think?
Our attention was grabbed on the sexual equality issue when our national radio, CBC, ran a story about the difficult time you’ve been having in Iowa. Especially riveting was the testimony given by Zach Wahls, a 19 year old 6th generation Iowan who has been raised by two lesbians. Engineering student, Eagle Scout, scoring in the 99th percentile of his college aptitude test, Mr. Wahls defended same-sex marriage in a respectful and articulate presentation before the state legislature and argued that the sexual orientation of his parents had had zero effect on the content of his character (he perhaps underestimates his mothers). Nonetheless, despite his and other compelling presentations, the Iowa legislature voted 67-32 to amend the constitution to ban same-sex marriage. To make matters worse, when the Supreme Court of Iowa found the ban to be unconstitutional, in a 2009 ruling, a recall campaign effectively resulted in the firing of those judges in the 2010 elections. The election of judges is a puzzling mystery to those of us north of the border, but we’ll leave that for another time.
So, as we understand it, the present state of affairs regarding same-sex marriage in the United States is a patch work of a few states that allow same-sex marriage, a few others who don’t allow same-sex marriages themselves but will recognize same-sex couples if they were legally married in one of the gay marriage states, and a whole lot more that will not extend legal recognition to same-sex marriages. Frankly, it’s difficult to keep up with the constant to-ing and fro-ing on this issue. We don’t pretend to understand all of the intricacies of jurisdiction in your country, but what the heck are you people doing down there?
On the issue of marriage in Canada, we suggest you take a look at the Reference re Same-Sex Marriage [2004] 3 S.C.R. 698 and the Civil Marriage Act (passed in 2005). The complete history of how that case and the subsequent act came about is too long to recount here, but I’ll pull out a few highlights. First, though, the punch line is that Reference paved the way for the Civil Marriage Act, which allows, across Canada, same-sex marriage. To be clear, not only does it allow same-sex marriage, but the decision in the Reference clearly states that it is unconstitutional and a violation of the Canadian Charter of Rights and Freedoms to prohibit same-sex marriage. If you look at the equality guarantees in the Charter (s. 15) you’ll notice that sexual orientation isn’t among the prohibited grounds of discrimination. That’s because our courts have actually read it in the spirit of a “living tree” interpretation of the Charter, which is part of our Constitution.
I don’t want to pretend for a minute that the path to the Civil Marriage Act was a smooth process. Our constitutional division of powers gives jurisdiction for marriage and divorce to the federal government, but jurisdiction over the solemnization of marriages to the provinces. So, for a time we had a similar situation to yours, with the provinces of Ontario and British Columbia being the first to legalize same-sex marriage and a bit of confusion over how solemnization of marriage related to marriage. But that was sorted out and same-sex marriage is now performed in all provinces in Canada.
One famous moment in Canadian history which might be noted as the beginning of the shift toward equality for gays and lesbians in Canadian society is the statement by former Prime Minister Pierre Elliot Trudeau, specifically on the issue of “homosexuality,” that “there’s no place for the state in the bedrooms of the nation.” There were many important moments between then (1967) and where we are now; but, it might interest you to know that a key role in bringing the issue of same-sex marriage to the fore of public debate was played by the Metropolitan Community Church of Toronto (MCC was founded in the United States in 1968, by the Reverend Troy D. Perry; it is a Protestant denomination with a specific outreach to the LGBTQ community). Through some innovative strategies MCC Toronto married two same-sex couples in 2001. The province of Ontario refused to recognize the marriages, court cases ensued, and in 2003 in the Halpern case, the Ontario Court of Appeal held in favour of the same-sex applicants. The Reference case followed shortly after that, in 2004, and then the Civil Marriage Act was enacted a year later.
In Reference you’ll see a list of interveners at the very beginning of the case—about 25 of them—with about a third of those being “religious.” Some groups, including some faith-based groups, were in favour of same-sex marriage; but, we also heard from other groups who were worried about the future nature of Canadian society should gays and lesbians be allowed to marry. Miraculously, and despite the warnings, the sky has not fallen since the Reference case, and while it is impossible to know the precise number of same-sex marriages in Canada (and I will shortly explain why – and it is not because Canadians cannot count), same-sex marriage has become somewhat commonplace.
Nonetheless, the “nays” continue to maintain that the full impact of allowing gays and lesbians to marry will not be known for years to come. And, they claim, the lack of evidence of immediate moral decay is because we are still riding on our moral surplus, accumulated by the good behaviour of previous generations of Canadians (who were not, evidently, gay or lesbian). Although our current Conservative government has made rumblings about reversing the Civil Marriage Act, they are a minority government and well, quite frankly, the more time that passes it will become a bit like closing the barn door after the horse has escaped.
Of course, if we take the approach that such unions are morally wrong, and use the registry of marriage as a way to track down same-sex couples to tell them to forget about the legality of their marriage, it might be possible to reverse course. This would, perhaps, be one of the things that those gays and lesbians who were opposed to bringing themselves under the state regime of marriage might have been worried about—that they would be brought under the realm of state surveillance or governance, as it were. They also didn’t want the state to equate same-sex relationships with heterosexual marriage. This possibility of governance may be subverted to some extent by the fact that not all provinces document whether a marriage is a same-sex marriage. In other words, a marriage is a marriage, no matter who the members of the couple are. So, as each day passes and another same-sex couple marries, the possibility of the civil servants sorting through all of the Dawn and Dons and Dawn and Deborahs seems more and more remote, short of asking them to out themselves. Again.
So, let’s be clear. For the moment, we’ve allowed same-sex marriage here in Canada. And it’s marriage. Not some reasonable facsimile, but the real deal. Not civil unions, not partnerships, but marriage. The kind you can be divorced from, not just dissolve like a business relationship. And those marriage ceremonies are performed both by religious people and by marriage commissioners or so-called secular officials. That needs a bit more explanation though.
Not everyone has bought in to the new order, and in fact the Supreme Court of Canada in Reference was pretty clear that religious groups, or at least clergy called upon to perform and sanctify a marriage ceremony, should be allowed to have an exemption from having to treat gays and lesbians like everyone else. So, Christian denominations here have taken what we might call a mixed approach. Despite considerable religious diversity in Canada, the religious voices that have been most amplified in debates over same-sex marriage in Canada have been Christian. The Anglican Church, which is like your Episcopalians, has been torn over the issue of gay ordination and gay marriage. Congregations have split over the issue, and there are currently court battles over division of church assets that are up for grabs as a result of the aforementioned schisms. The United Church of Canada, ever the pragmatic liberal denomination that they are, has decided to allow individual congregations to decide whether they will affirm same-sex unions or not. And the Roman Catholics, despite being officially opposed to same-sex marriage, have had a number of rather high-ranking clergy, never mind lay people, speak out in favour of same-sex marriage. The more conservative religious groups are still worried about women in leadership positions and so the gay and lesbian issue hasn’t made the agenda, except in the “love the sinner, hate the sin” kind of way. In short, we have churches that are wildly in favour of and those that are vehemently opposed to same-sex marriage.
Now, on the secular side of things it’s just about as interesting. We recently had a little upset in the province of Saskatchewan over this religion v. sexual orientation issue (framed this way, it kind of seems like there are no religious people who are gay, doesn’t it?). A question arose, which was eventually settled by the Saskatchewan Court of Appeal, about whether the civil servants who perform secular marriages could be exempt from performing same-sex marriages if it was contrary to their own religious beliefs. To put it another way, could the people who were charged by the state with responsibility for conducting marriages for people who didn’t want to have a religious marriage then claim a religious exemption, thus, in effect, imposing their religious beliefs on others? The Court of Appeal said no.
To be honest, the whole same-sex marriage issue lays bare some of the big questions that arise from living in a liberal democracy. Like, what exactly does “liberal democracy” mean? Embedded in this are ideas about “the secular.” So, if a state is secular, how can it then enforce a particular religious view that sees marriage as its own territory and within its domain to define? This is thorny territory, and if you don’t navigate through it carefully the mirage that is the wall between church and state will disappear. We are a little less clear on this wall business here in Canada: we don’t have a constitutional separation of church and state (in fact, the preamble of our Charter of Rights puts “the rule of law” and the “supremacy of God” side by side as founding principles). This allows us to hedge our bets a bit, but, interestingly, we are also not very tolerant of “God talk” from our politicians. This has also meant that although religious voices were present in public debates about same-sex marriage, the weight of the equality guarantees in our Charter of Rights and Freedoms carried the day.
We don’t claim to have solved the problem of discrimination against gays and lesbians, and we have plenty of examples of continuing struggle, like the recent controversy in Halton, Ontario, involving the Catholic School Board and its decision to ban gay-straight student alliances. Like another one of our wonderful exports currently under attack (multiculturalism), you may find our version of equality incompatible with your political goals or, to be fair, with the different political climate in the United States. And, with the Canadian dollar at par with yours (and the 2012 Presidential election cycle already in gear), it may not seem like a good time to buy in. Still, and not to play politics, but, in closing, might I draw your attention to an alternative model for public leadership on controversial moral issues? Despite the possible jeopardy to his spiritual health, never mind to his political career, Paul Martin, the Liberal Party Prime Minister who shepherded through the Civil Marriage Act in 2005, both insisted that his cabinet ministers vote for the Act and noted that his own obligations to human rights came before his political career or risking his soul. So, perhaps a look to your neighbour up north—where the sky has still not collapsed under the weight of same-sex wedding cakes—will show that it is safe to get off the fence. There is less to worry over than you think. Frankly, the weight of the snow up here right now is far more daunting than anything else.
From Your Caring, Concerned and Slightly Smug Neighbour to the North,
Canada
Lori G. Beaman, Ph.D. is Canada Research Chair in the Contextualization of Religion in a Diverse Canada and Professor in the Department of Classics and Religious Studies at the University of Ottawa. Her publications include Defining Harm: Religious Freedom and the Limits of the Law (UBC Press, 2008); “Is Religious Freedom Impossible in Canada?” Law, Culture, and the Humanities 7(2) 2011, in press; and “‘It was all slightly unreal’: What’s Wrong with Tolerance and Accommodation in the Adjudication of Religious Freedom?” Canadian Journal of Women and Law 23(1) 2011, in press. She is co-editor, with Peter Beyer, of Religion and Diversity in Canada (Leiden: Brill Academic Press, 2008). She is principal investigator of a 36 member international research team whose focus is religion and diversity (religionanddiversity.ca).
Image courtesy of Canadian blog, Slap Upside the Head. For more cartoons and commentary, visit www.slapupsidethehead.com.