Sunday, January 30, 2005

Why I don't think A SCC ruling on SSM is certain

I've been asked why I don't particularly buy the reasoning behind a number of law professors contention that Harper's proposed legislation would be struck down. Aside from the ideological underpinnings of the professors making this particular accusation, my reasoning is the prior ruling of the Supreme Court itself. Despite what Mr.Cotler and Mr. Martin have contended the only rulings made by the Supreme Court of Canada have been that Parliament was able to redefine marriage if it chose too, and in 1995 that the traditional definition of marriage was constitutional.

Indeed, the Court of Appeals in some cases rather deliberately choose to ignore the fact the matter had been ruled on. This was a rather disturbing flouting of the central legal principal of stare decisis. While I may have my misgivings about the impartiality of the current Supreme Court, I do not believe they've yet wholly abadoned principals central to the common law and civil society itself. Hence I believe they would have some difficulty surmounting the clear precident set in Egan v. Canada.

Quoting from the judgment of the majority Chief Justice Lamer :

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.

Neither in its purpose nor in its effect does the legislation constitute an infringement of the fundamental values sought to be protected by the Charter. None of the couples excluded from benefits under the Act are capable of meeting the fundamental social objectives thereby sought to be promoted by Parliament. While these couples undoubtedly provide mutual support for one another, and may occasionally adopt or bring up children, this is exceptional and in no way affects the general picture. Homosexual couples differ from other excluded couples in that their relationships include a sexual aspect, but this sexual aspect has nothing to do with the social objectives for which Parliament affords a measure of support to married couples and those who live in a common law relationship. The distinction adopted by Parliament is relevant here to describe a fundamental social unit to which some measure of support is given

Given that this is the last ruling by the Supreme Court on the subject and its far less inclusive than Harper's position, I have no qualms stating that Harper's position IS constitutional until the Supreme Court overturns this judgement. Furthermore, if you think the Supreme Court won't be influenced by its direct precident, that's a pretty damning indignment of the Court as having an ideological agenda and simply legislating from the bench. I tend to view the outcome as less than certain, and its certainly not dishonest to protray a proposed law as constitutional which is in line with the most recent Supreme Court judgment on the subject. As quite frankly following the caselaw properly the CAs would all have been overturned on appeal nor do I think it certain that the Supreme Court would want to tarnish itself by fueling its critics by ignoring its own precidents and overturning the will of the legislature on a matter where their was no harm but the suposed harm of a lack of "social acceptence".

I also think this particular statement in the SCC response to the Reference Case is something those who claim a "certain" judgement are willfully blind too:

71 In sum, a unique combination of factors is at play in Question 4. The government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this question. The parties to previous litigation have relied upon the finality of their judgments and have acquired rights which in our view are entitled to protection. Finally, an answer to Question 4 would not only fail to ensure uniformity of the law, but might undermine it. These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, convince the Court that it should exercise its discretion not to answer Question 4.

The court seems to be suggesting that the definition of marriage was not at all unconstitutional, which reinforces my belief that so long as the benifets attached to marriage are preserved through civil unions there is a reasonable probability that Harper's legislation would not be struck down at the Supreme Court level. Anyone suggesting a "certain" outcome is about as reliable as a tarot card dealer...


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