On marriage equality, neither the Liberals nor the Conservatives have much to brag about

OPINION: The federal Liberals are attacking Conservative leader Andrew Scheer’s record on same-sex marriage — but their own record is far from spotless
By John Michael McGrath - Published on Aug 27, 2019
Andrew Sheer and Ralph Goodale
Liberal MP Ralph Goodale (right) has criticized federal Conservative leader Andrew Scheer for his record on marriage equality. (Justin Tang/CP, Adrian Wyld/CP)

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Last week, Liberal MP Ralph Goodale sent out an attack-tweet reminding everyone that, when the matter was before Parliament in 2005, federal Conservative leader Andrew Scheer said he was staunchly opposed to legalizing same-sex marriage.

The clip was edited slightly — for those who didn’t look it up in Hansard: when Scheer drew an analogy between marriage and the number of legs on a dog, he was quoting Abraham Lincoln — but, fundamentally, this is a fair attack. Reminding voters about past performance in the Commons chamber is entry-level politics. If the Tories didn’t have a plan ready for something like this, Scheer should fire everyone working for him.

But what’s good for the goose is good for the gander, and it’s worth noting that the Liberals may also want to avoid a trip down memory lane.

For starters, there’s the awkward fact that Goodale himself voted against marriage equality in 1995 and 1999. For context, by May 1999, the Supreme Court of Canada was already ruling that same-sex couples were entitled to spousal-support benefits under family law, even if it hadn’t yet formally legalized same-sex marriage. It was that decision that prompted Goodale and 215 other MPs to vote for an opposition motion reasserting that marriage was still exclusively for heterosexual couples. Anyone could read the writing on the wall as far as the judicial interpretation of the Charter went, but only 55 MPs voted for equal rights in 1999.

Ah, but at least the Liberals could see which way things were going a few years later, right? Well, sort of. In one of his last acts as prime minister, Jean Chrétien submitted for the Supreme Court’s review a draft bill that legalized equal marriage in federal law and included three questions about the constitutionality of the law that would become Bill C-38, the Civil Marriage Act. On its own, this is normal: the Supreme Court is periodically asked to review major changes in legislation to ensure that they comply with the Constitution and the Charter.

But then the struggle for LGBTQ rights came up against intra-party Liberal politics and a looming election. In December 2003, Paul Martin succeeded Chrétien, and one of his first acts was to punt on one of Chrétien’s last by adding a fourth question to the court reference. The first three were clear legal questions that asked the court to check the legislation in question and decide whether religious officiants would be compelled to perform marriage ceremonies against the doctrines of their faith; Martin’s addition — which essentially asked whether laws keeping marriage exclusively for heterosexuals could survive the Charter — was redundant and unnecessary, given how lower courts had already ruled on the matter.

The motivation for it was obvious to observers at the time: by adding a fourth question after the reference process had already begun, Martin was trying to delay any Supreme Court decision on marriage equality until after the 2004 spring election. Using the country’s highest court to stall legislation because you don’t want to answer questions about it during a campaign is many things — but it is absolutely not a profile in courage.

As Grant Huscroft, then a professor of law at Western University and now a justice of the Ontario Court of Appeal, wrote of Martin’s tactic: “The government’s performance was disingenuous, to say the least. It pretended that same-sex marriage was a judicial issue even as it proposed to legislate, and attempted to rely on the reference proceedings for political cover.”

Martin didn’t even get an answer from the court: it declined to answer the fourth question and reminded the government that there were real people’s lives at stake — people who had relied on the decisions of lower courts to make life-changing decisions.

“[T]he parties to previous litigation have now relied upon the finality of the judgments they obtained through the court process. In the circumstances, their vested rights outweigh any benefit accruing from an answer to Question 4,” the court said. In other words: don’t ask us questions we can’t answer without adding legal ambiguity to the lives of people who are just trying to be happy.

None of this means that there were no heroes in Canada’s battles for marriage equality. The court’s decision serves as a reminder of who they were. In court cases across the country, LGBTQ families fought their governments at both the provincial and federal levels simply to get the state to stop discriminating against them. Even as they were winning in court, they had to fight foot-dragging from governments that knew better.

The Canada we live in is the Canada they helped make, and if you feel the need to be on anyone’s side, choose theirs. Not all the fights have been won yet.

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