Gay marriage legislation will probably be introduced in Canada today, a final culmination of a debate that has been marked along the way by a remarkable disdain for democratic opinion. Gay marriage has not triumphed in Canada because Canadians are more liberal on the issue than Americans, although they are, slightly. Gay marriage has triumphed because Canadian politics is much less subject to popular control than US politics.
All Canadian judges above the level of police magistrate, including judges on the mis-named provincial courts, are appointed by the prime minister at his sole whim: there are no judicial hearings, no opportunities for representatives of the people to block out-in-left-field nominations. Canada’s constitution was negotiated in 1982 without any kind of reference to the public: It is now effectively unamendable. Open debate is restricted: The federal government regulates radio and television to keep unwelcome opinions off the air. American programs that take a traditionalist view of marriage – Dr. Laura Schlessinger’s for example – were forced off the airwaves by government power. Individuals who express traditionalist views on the gay marriage question can (and have been) harshly punished. (One Saskatchewan man was fined $5,000 for buying an ad in his local paper made up of verses from the bible.) Even today, it’s doubtful that same-sex marriage would pass Parliament on a free vote: But, as the Globe and Mail observes today in the story linked above, “Several cabinet ministers have voted against same-sex marriage on previous occasions in the House, but will have to change positions if they want to remain in cabinet.”
From an American point of view, however, what may be most remarkable about the Canadian debate has been its disingenuousness. I’ve been participating in this argument since the late 1980s. At every step along the way, it was obvious what the next step was – and what the ultimate destination would be. At every step along the way, proponents of same-sex marriage passionately denied that the next step was coming – or was even contemplated.
That same spirit of disingenuousness has now crossed the border. Take a look at Andrew Sullivan’s blog this morning. He has an item affirming his support for a “federal” approach to same-sex marriage. He even links to a story about two Massachusetts women who were married in Massachusetts and then moved to North Carolina where their marriage was not recognized. Andrew describes this as an example of the system working. But either he’s kidding himself or he’s kidding his readers.
Here’s how “federalism” on the marriage question really “works”: Two Vermont women, Lisa and Janet, entered a civil union. One became pregnant. The relationship ended. The mother and child moved out of state to Virginia – a state that does not recognize civil unions. The non-custodial women sued for visitation rights in Virginia and lost. So she sued in Vermont and on November 20 won a custody order from a Vermont court. If the birth mother ignores the order, Vermont will hold her in contempt - and will then demand that Virginia enforce the contempt ruling.
Result: Either Virginia must accept the validity of a marriage that flagrantly violates the public policy of the Commonwealth – or else it ignores a facially valid custody order and violates the public policy of the United States in favor of comity between state courts. To put it more bluntly: the “federalist” approach to marriage will destroy either federalism (as states ignore each other’s judicial orders) or else it will destroy marriage (as individuals using their freedom of movement carry same-sex marriages with them into states that do not wish to recognize them).
And just as a footnote: I did a quick Google search this morning and discovered that none of the self-described proponents of federalism have taken Virginia’s side in the custody matter. No surprise there: For the advocates of same-sex marriage, federalism is a tactic, not a principle. It will be discarded as soon as it ceases to serve its purposes.
The only happy result of the Canadian tragedy is that it dramatically demonstrates the true trajectory of the marriage debate: Like Canada, the US will go all one way or the other. You can see why the people on the losing side of the current debate would want to kick the problem down the road and settle it later, when they hope that something might alter public opinion in their favor. For the same reason, people who believe in marriage as it has always been understood in the United States should insist on settling the issue now, with a federal constitutional amendment.