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A far-away place next door by Michael Byers, Academic Director
A far-away place next door by Michael Byers, Academic Director

December 4, 2004
Canada insists it is quite unlike its superpower neighbour. But, as President Bush visits, issues such as same-sex marriage heighten its differences with the US

The United States and Canada might have a common language, share the world's longest undefended border, and - at US$1bn of business a day - enjoy the biggest trading relationship on the planet. But when President George W. Bush arrived in Ottawa this week, on his first official visit to Canada, he was not simply visiting a country whose government disagreed with him over the war in Iraq. The social and cultural fissures between the two north American neighbours, that have always existed, are widening at an ever-increasing rate.

Before the American Civil War, these differences were most tellingly expressed by Canada's status as a haven for runaway slaves. Today, American medical care remains private and largely dependent on income, while Canada introduced universal public health care in 1967. In 1969, the then Canadian prime minister, Pierre Trudeau, declared that the state had no place in the bedrooms of the nation and rescinded legislation that criminalised sodomy. It took another 34 years for the US Supreme Court to overturn similar laws in Texas and 12 other states. During the 1950s three Canadians in five attended church regularly; today the figure is one in five. Over the same period in the US, the percentage of regular churchgoers has remained constant. Moreover, far fewer Canadians than Americans believe that the Bible should always be interpreted literally. The pollster Michael Adams explained the differences this way: "The evolution of Canadian Christianity to a more liberal, open, inclusive and less judgemental spiritual quest contrasts with the more conservative, closed and dogmatic orientation south of the border." And nowhere are the differences between the countries more starkly expressed than on the issue of same-sex marriage. Here in Vancouver, I could just as easily be married to a man as a woman. Courts in British Columbia, Manitoba, Nova Scotia, Ontario, Quebec and the Yukon Territory have all decided that the common law definition of marriage violates the equality provision in the 1982 Canadian Charter of Rights and Freedoms. In other words, the provincial and territorial courts have deemed that restricting marriage to the union of a man and a woman is unconstitutional. The federal government in Ottawa, instead of appealing the judgements, has responded by drafting legislation that would extend the legal definition of marriage to include gay and lesbian couples, while preserving the right of churches to refuse to conduct such services. Then, anticipating that opponents of the move would mount legal challenges, the government asked the Canadian Supreme Court to review the draft statute's constitutionality. The request, called a "reference", led to three days of hearings last month. The Court will issue an opinion next year; in the meantime, across the country, more than 4,000 same-sex marriages have been performed. It is unlikely that the Supreme Court will find the draft statute unconstitutional. Canada's highest court has always taken an expansive approach to the equality provision. Moreover, less than two months before the reference was heard, Prime Minister Paul Martin appointed two new judges to the Supreme Court who, as provincial court of appeal judges, had come out in favour of same-sex marriage. Still, it is inconceivable that the Court will require churches to perform same-sex marriages, since the Charter of Rights also protects freedom of religion. The legislation will be adopted as soon as the Supreme Court rules on its constitutionality. The Justice Minister Irwin Cotler has publicly affirmed that he and his Government are committed to having same-sex marriage become law. Although the Liberal Party has been governing as a minority since June 2004, this does not constitute an impediment with regard to this issue. The left-leaning New Democratic Party and the separatist but socially progressive Bloc Québécois are certain to support the initiative. The Conservative Party, which forms the official opposition, will vote against the legislation but has neither the seats nor the desire to put up a struggle. By most standards, Canada's conservatives are relatively progressive: they support universal public health care and refuse to take a position on abortion rights. Here in British Columbia - the so-called "left coast" - our economically right-wing provincial government has cheerfully tolerated marijuana cafés, brothels and safe-injection sites. Conservatives in the United States are of an altogether different stripe. After the Massachusetts Supreme Court held that gays and lesbians had the right to wed under that state's constitution, President Bush declared traditional marriage "the most fundamental institution of civilisation" and promised to amend the US Constitution to prohibit gay and lesbian marriages nationwide. This hard-line position contrasted with the more nuanced - and therefore more difficult to explain - approach taken by Senator John Kerry, who coincidentally represents Massachusetts on Capitol Hill. Kerry opposed same-sex marriage yet supported civil unions, a status that would confer most legal rights and benefits on gay and lesbian couples. He also took the view that any amendment of the US Constitution directed at same-sex marriage would unjustifiably infringe upon state powers. During the presidential campaign, the Bush team pushed hard for concurrent ballots on same-sex marriage in as many states as possible, believing, correctly, that this would improve voter turn-out among social and religious conservatives. In the 11 states that held such ballots, including the critical swing-state of Ohio, voters decided overwhelmingly to ban homosexual marriages. Today, thousands of gay and lesbian lawyers, doctors, architects and film-makers are immigrating to Canada because, among other things, they can marry here. Swimming against this tide, the Catholic Church has opposed the move to legalise same-sex marriage in Canada. During the last federal election campaign, the Bishop of Calgary posted a letter on his website describing the views of Prime Minister Martin, who is a Catholic, as "a source of scandal in the Catholic community" reflecting "fundamental moral incoherence". The official position of the Canadian Conference of Catholic Bishops is similarly clear, if more restrained: "By requiring [Canadians] to treat homosexual sexual practices as good, it will lead to intolerance of those who teach and espouse the opposite view which, in turn, will have wide-ranging negative consequences for freedom of religion and conscience." Other mainstream Churches have expressed different views. The United Church of Canada, the country's largest Protestant denomination, has said that restricting the definition of marriage to heterosexual couples "questions the capacity of gays and lesbians to develop love and intimacy, undermining their human dignity and reinforcing prejudicial attitudes and even promoting violence". Notwithstanding the doctrinal differences, the debate over same-sex marriage has neither engendered the same passion nor caused the same polarisation of society and politics in Canada as it has in the United States. There is a distance between the two countries that is rarely perceived from overseas. Canadians, with their tolerant attitudes on social issues, are closer to Amsterdam or Stockholm than to Washington DC.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.

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