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In the time it’s taken for this country to plumb the dark recesses of its constitutional soul on the issue of gay marriage — to pass Defense of Marriage acts in most states and the federal government; to decriminalize gay sodomy; to legalize gay marriage in Massachusetts; to hand out meaningless licenses in San Francisco; to debate and derail constitutional amendments; and, in short, to tear the populace apart to achieve little net change — Canada has pretty much decided the issue. Last December, Canada’s Supreme Court handed down an advisory opinion (known in Canada as a “reference” — a mechanism whereby the legislature can get the court’s opinion on major legal or factual questions before enacting law) giving its Parliament the green light to pass legislation legalizing gay marriage nationwide. While seven provinces and one territory have already deemed gay marriage constitutional, and gay couples have been marrying in Canada since the Ontario courts first allowed them in 2001, this federal law, introduced last February and fairly likely to be passed by Parliament this spring, will ensure that Canada joins only Belgium and the Netherlands in declaring gay marriage legal nationwide. To be sure, Canada is experiencing its share of angst over this issue. Conservative provinces, such as Alberta (that’s Canadian for “Texas”), have vowed to deploy every legal means available to keep gay marriage from becoming law there, and religious Canadians, particularly Roman Catholics, have fought to keep the federal legislation from passing. With vast amounts of financial and other assistance from the American religious right pouring in, it’s no longer certain the new law will pass Parliament. But since most provinces already consider gay marriage a right, and most of those who have yet to rule on the issue will likely line up behind them, in some senses this federal law is an afterthought: Canada has effectively legalized gay marriage in what seems, as measured in constitutional units, a mere blink of an eye. What’s the difference between what happened in Canada and what’s happening here? Is the sea-change in Canadian policy attributable to a difference in its national constitution or character? Is there a different balance there between provincial and federal powers and between courts and legislatures? Is it the difference between how Canadians feel about religion or about their judges? The short answer, to all of the above, is yes. One of the biggest differences between the gay marriage debat e playing out in Canada and the debate here is that the Canadian courts have largely taken the lead on this issue, regardless of popular preferences. This has a lot to do with expansive legal protections for individual rights under the Canadian Constitution (outlined below) but a lot more to do with the fact that under the Canadian legal regime, the legislatures, not the courts, have the last word on the law. The Canadian Supreme Court didn’t order the Parliament to legalize gay marriage; it merely opined that doing so would not violate their constitution. That such changes ultimately come from a legislature and not the courts gives them a legitimacy lacking in the judicial proclamations from American courts. In any event, Canadians are also far less advanced players of the “Flame the Judicial Activists” game. For whatever reason, as the provincial court decisions came down legalizing gay marriage, there was little national outcry about the evil infesting the bench. The words penned by the Canadian Supreme Court last December would have led to an impeachment if not a lynch mob down here, yet were accepted as basically valid up north: “Our constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” The main reason that Canada was able to achieve what so far only the state of Massachusetts has achieved here is that under Canadian law, the federal government — not the provinces — has “exclusive authority” to define marriage. Provinces may determine how marriages are solemnized, but only the feds define what a marriage actually is. In the United States, all marriage matters are the presumptive domain of the states. While the federal government can define marriage for purposes of enforcing federal statutes, it cannot tell any state what a marriage is for state purposes. Since most domestic relations law comes under state purview — divorce, custody, trusts, wills, etc. — the state maintains exclusive control over these areas, and, as we’ve seen post-Massachusetts, the states will not relinquish those prerogatives anytime soon. Since all of these powers reside in Canada’s federal government, it was a simple matter to decide the entire issue in one fell swoop. And while the province of Alberta claims that it will do what it can to prevent gay marriage from taking hold there, the truth is that there isn’t much that can be done once federal legislation is passed. The “patchwork” scenario playing out here, wherein the law differs from state to state, will not become a reality in Canada. For a very long time, Canadians were far more socially conservative than their American counterparts. The big cultural shift in Canada came in the 1970s with the only truly charismatic Canadian prime minister in recorded history — Pierre Eliott Trudeau — who launched his own pocket version of the Warren Court’s “rights revolution” by seizing upon the Canadian Charter of Rights and Freedoms as the key to curbing provincial powers and promoting social equality. The Charter, not adopted as part of the Canadian Constitution until 1982, is Canada’s answer to the Bill of Rights, and it was deliberately crafted with broad language offering “equal benefit of the law without discrimination.” Expressly protected groups include women, aboriginals, and minority language groups. This language has been seized upon by fairly liberal Supreme Courts to prohibit discrimination on the basis of sexual orientation as well, even though that classification is not explicitly spelled out in the Charter. The revolution thus really began in Canada in 1999, when the Supreme Court ruled that gay couples had the same rights at heterosexual common-law couples, forcing the federal government to amend dozens of federal statutes to include them. The protection of gay marriage was an inevitable short hop from there. Needless to say, and as evidenced from Justice Anthony Kennedy’s opinion in the Texas sodomy case, the Bill of Rights is nowhere near as expansive, either in its delineation of protected groups, or in its sense of the penumbras under which consensual sexual activity may fall. The Canadian version of the gay marriage debate has largely been framed as a civil rights issue about excluding minorities from state-sanctioned privileges on one hand, with religious groups clamoring that these equal protections impinge on their own religious freedoms. Sound familiar? The version of the gay marriage bill before Parliament claims to reconcile those interests, as did the Canadian Supreme Court, by ensuring that religious clergymen cannot be forced to perform marriage ceremonies over their personal moral objections. But there is also an important trapdoor in the Canadian Charter that might still allow religious majorities to frustrate the will of the courts: One of the fundamental differences between the Canadian and American constitutions is Canada’s “notwithstanding clause,” allowing provinces and the federal government to opt out of the Charter under certain circumstances. (Since provinces may only use the notwithstanding clause on legislation purely provincial in nature, it is not yet clear whether Alberta or others will be able to deploy it to preserve their opposite-sex definition of marriage.) There can be no disputing that Canadians now make a national hobby of tweaking what they see as the increasingly judgmental, puritanical, and xenophobic character manifesting itself to their south. Embracing an increasingly European model of tolerance and pluralism has become attractive to Canadians, who view themselves as more evolved, compassionate, and welcoming of strangers (almost 20 percent of Canadians were born elsewhere, as compared to 10 percent of Americans). Part of this sense of self includes a fierce need to police the wall between church and state, whereas the trend in this country goes in the other direction. Thus, while polls show that the Canadian public is about evenly split in their support of gay marriage, other surveys show that Canadians are very nervous about injecting solely religious objections into civil law. What has happened in Canada has not entirely been a creation of so-called elitist, out-of-touch courts, but it may well be a compromise between those courts and an elitist, out-of-touch legislature. Canadians will not have the opportunities for direct citizen referenda, either in drives to amend the constitution, or to lobby state government. Your position on whether direct citizen involvement in questions of fundamental civil rights is the best alternative will largely determine which approach appeals to you more. Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate. E-mail: [email protected]. This article was originally published in The American Lawyer, aRecorder affiliate based in New York City.

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