Emerging Consensus on Gay Marriage

Marriage Equality USA

Assuming that the world survives this coming December 21, the United States Supreme Court is expected to rule on two cases in June which could result in the nation-wide legalization of gay marriage.

I cannot forecast with certainty how the court will decide, but supposing for a moment that it rules in favour of marriage equality, the short-term results are easy to predict: conservative commentators across the country will complain of judicial activism, despite having in many cases urged precisely such an overreach one short year before when Obamacare hung in the balance. Right on cue, public support for same-sex marriage rights — steadily on the rise for years — will drop by approximately ten points.

But despite this frothy chorus of apocalyptic whining (maybe that’s what the Mayans were referring to!), the homophobic naysayers will not succeed in preventing a single same-sex couple from exchanging vows. The US Constitution is the law of the land, and the Supreme Court has final say over its interpretation. Gay marriage, assuming a favourable ruling, will be here to stay.

A more interesting topic for consideration, however, is how American attitudes to marriage equality will evolve over the long-term. Will the coming Supreme Court decision be more Brown v. Board of Education or Roe v. Wade? The former ruling from the 1950s, which desegregated public schools and marked a major victory for the civil rights movement, was incredibly controversial at the time, but is now almost unanimously recalled as a just and necessary decision. Roe v. Wade, by contrast, the 1970s ruling that legalized abortion across the country, has done nothing to settle the debate over a woman’s right to choose. So is gay marriage more like desegregation or abortion?

I believe it is more like desegregation. Marriage equality can very easily be framed as a civil rights issue, since after all it is about guaranteeing equal rights for a persecuted minority. On the subject of abortion, however, the applicability of equality is muddied by the fact that some people demand rights for women while others demand them for fetuses. Although I personally count myself in the former category, and believe that any depiction of the pro-life community as a modern-day civil rights movement for the unborn rests on a fundamental confusion, I can at least understand how such a confusion could come about and how much work it will take to clear it up. Gay marriage is far more clear-cut, and I see something approaching a consensus emerging over time.

But might it actually be something else that determines the public’s attitudes on social issues? Might it instead be the powerful influence of religious conservatives? If so, gay marriage could be doomed to share the stage with abortion as a highly symbolic subject of perpetual debate whose status is never secured.

Fortunately, I do not think this is likely. Take a look at Canada. We have had same-sex marriage for nearly a decade now and unrestricted abortion rights for a quarter century. While the latter is not nearly as much of a hot issue here as in the United States (perhaps owing to the reduced influence of evangelical Christianity), occasional attempts to chip away at a woman’s right to choose still make their way into Parliament. But marriage equality has not been up for serious contention in years, and that appears to be just how the public likes it.

This does not mean that homophobia has completely disappeared from Canada any more than racism disappeared from America within a decade of Brown v. Board of Education. But after a little time passed and the Canadian public saw that the institution of heterosexual marriage was not under threat after all (at least not from homosexuals), gay marriage quickly lost its status as boogeyman to be exploited by reactionary politicians.

If the United States Supreme Court comes to a similarly enlightened conclusion a few months down the road, I think the American public will look back on the present day ten years from now and wonder what all the fuss was about.

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An Open Letter to Stephen Harper Regarding Senate Reform

Senate Foyer Ceiling

Dear Prime Minister Stephen Harper:

I am writing today in response to reports that you will seek a Supreme Court reference on the constitutionality of your proposals for Senate reform. In a way, I can understand this. You would like clarity on a politically tricky issue, one that would otherwise almost inevitably face judicial challenge.

Personally, I do not believe the court will fully endorse all features of your plan, as the Constitution Act, 1982 is quite clear regarding the constitutional amendment requirements for such fundamental changes to the upper house. But either way, both you and I know that pursuing Senate reform by statute is not a long-term solution. Any future government will be able to repeal your legislation without difficulty.

What Canada really needs, to settle the decades-long debate once and for all, is a national referendum. Not one in which the issue of Senate reform is muddied by other matters, as in the Charlottetown Accord, but a single stand-alone nationwide vote on the future of the Red Chamber. Voters should be given a choice between three possibilities: 1) an appointed Senate, 2) an elected Senate, and — my personal favourite (see here and here for my reasoning) — 3) abolition of the Senate. The ballot would also need to be preferential to make sure the winner has majority support.

Once the dust from the referendum has settled and one of these three options has become legitimized by popular endorsement, it should then become easier to get seven provincial governments representing half the country’s population (as required by the Constitution Act, 1982) to, if necessary, back a constitutional amendment. Will the provinces inevitably put aside their differences and come to an agreement after such an exercise? There is no guarantee. But this at least represents a better shot at a permanent resolution to the Senate reform debate than your Supreme Court reference case.

And what if voters settle on something other than your preferred route of an elected Senate? Am I being naive in asking you to put your own preferred outcome at risk? Only you can answer that question, Mr. Harper. All I can do is urge you to recognize that what unites all proposals for Senate reform is the desire to deepen democracy in our country. So please, respect the people — theĀ demos — in their right to decide for themselves what institutions are most appropriate for the expression of their will. This is the only way of dealing with the Senate that truly embraces democracy.

Sincerely,

David Taub Bancroft