Friday, January 27, 2006

Congratulations Everyone

We're "too hedonistic" for the Conservatives to get their wishes:
TORONTO (CP) - Canadians are far too "liberal and hedonistic" to change their politics overnight despite their election of Stephen Harper's Tory government, says a far-right-wing American commentator.

Paul Weyrich examines the result of Monday's election in an essay posted to the website of the Free Congress Foundation, the Washinton-based think tank that he heads. "The people of Canada have become so liberal and hedonistic that the public ethic in the country immediately could not reversed," Weyrich writes....

He says Harper may have a chance of repealing legal same-sex marriage in Canada's current political climate, but he would have to bide his time to build support to ban abortion.

Weyrich says one route to a small-c conservative victory on such issues would be to slowly appoint more conservative members to Canada's courts.

"As has been the case in the United States, cultural Marxism largely has been foisted upon Canada by the courts," he writes. "If judges who respect the Constitution were to be appointed, they would confirm that such rights are not to be found in that document."
I've talked about this before - conservatives claim to want to protect the Constitution, but they don't actually seem to have read the thing. For example, the court decision which allowed gay marriage is part of a long precedent in Canada of slowly expanding gay rights through the Charter. These decisions go back to the 1980s, and they're all based around a commonsense interpretation of the Charter.

Sec. 15 (1) guarantees all Canadians equal protection and "equal benefit" from the law, regardless of a number of factors (race, religion, etc.) Marriage is an obvious example of citizens benefiting from the law, and the Charter says all Canadians are entitled to it. Sexual orientation is not mentioned in 15 (1), but the Supreme Court has wisely decided that sexual orientation is "analogous" to the grounds protected by the Charter. Conservatives argue that this makes the decision invalid - because sexual orientation isn't explicitly protected by the Charter, protecting gay rights through the courts is unconstitutional.

(For a surprisingly readable summary of the legal and constitutional questions surrounding same sex marriage in Canada, read the Ontario Appeals Court's decision in Halpern v. Canada.)

Not only have Conservatives argued that the court decisions backing gay rights are illegitimate, but they've gone so far as to argue that the word "marriage" is a constitutionally entrenched word, meaning that changing the definition of marriage would require ammending the constitution. Obviously, the courts have rejected this frankly idiotic notion.

Guess what else the Charter doesn't protect? That's right, Property Rights. How many Conservatives think that the court's repeated decisions protecting implicit property rights are invalid? How about the court's anti-union decisions throughout the past twenty years - which obviously run counter to the freedom of assembly portions of the charter?

Jurisprudence in Canada has always been rooted in a progressive interpretation of the constitution and the law. For conservatives to argue that these decisions are illegitimate isn't just them being loony - it's a radical attack on the whole balance of Canadian government.

So far, Harper and the Conservative leadership have rejected this kind of extremism. I hope they don't spend too much time listening to loonies like Weyrich.

Final Note: Even if the Supreme Court had never touched the issue of SSM in Canada, we'd still have married gays and lesbians. The Metropolitan Community Church of Toronto began marrying couples in January 2001, using an ancient Christian tradition called publishing Banns. The Harris government petulantly instructed bureaucrats to refuse these applications, but there is literally no way this would have been upheld by the court. The MCCT would have won their lawsuit, and they'd have been backed by... the Catholic Church. No question about it - the Church protects it's traditions and privileges. It wouldn't have been nationwide, but they would have been unquestionably legal marriages in Ontario.


McGuire said...

Actually the Supreme Court never did rule on the constitutionality of SSM. Sorry to burst your bubble

john said...

I never said the SC did. I said they'd backed gay rights, not same sex marriage. When the SC was asked specifically about gay marriage, they basically gave it back to Parliament.

I wrote "the court decision which "allowed" SSM", not that they forced it. That's what the court did in Dec, 2004. The court said that Parliament could change the definition if they wanted.

I don't see how that's different than what I wrote.