LHMark
Posts: 7048
Joined: Fri Jan 21, 2000 2:18 am

Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 2:34 pm

http://edition.cnn.com/2006/WORLD/am...1/can.gay.marriage.reut/index.html

Sorry, Canucks. Now it's your turn in the barrel.
"Sympathy is something that shouldn't be bestowed on the Yankees. Apparently it angers them." - Bob Feller
 
Arrow
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 2:37 pm

It isn't going to happen. Harper wants to govern for a couple of years. He's hoping the motion to change back will lose in the free vote, and he'll do what he can to make sure of it.
Never let the facts get in the way of a good story.
 
CanadianNorth
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 2:38 pm

See what happens when Canadians vote for these people? Gays won, nobody is getting hurt by it, so leave the damn thing alone please Mr. Harper.



CanadianNorth
Way to go, nice and slow, never late, 748!
 
Jean Leloup
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 2:51 pm

Quote from the article:
Harper stresses he is committed to same-sex rights and promises to ensure the 3,000 gay marriages that have taken place would not be annulled.

Some observers speculate Harper secretly wants to lose the vote and thereby ensure the issue does not dominate headlines, thereby alienating centrist or soft-left voters whose support he will need at the next election to win a majority.


I think this is about where it's at. Harper has to talk as though he wants this re-examined, to satisfy hardcore social conservatives. But he knows the law is unlikely to be changed. If it were, his government's days would be numbered. He knows, they all know, that a majority of Candadians want to keep the law the way it is.

JL
Next flight.... who knows.
 
AerospaceFan
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 3:04 pm

Seems to me that Harper is wasting his time. He should tackle the tougher issues first. Gay marriage, relatively speaking, is a fluff issue, and it's bad enough that it's taking over certain venues in America.
What's fair is fair.
 
skyservice_330
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 3:34 pm

Quoting Jean Leloup (Reply 3):
I think this is about where it's at. Harper has to talk as though he wants this re-examined, to satisfy hardcore social conservatives. But he knows the law is unlikely to be changed. If it were, his government's days would be numbered. He knows, they all know, that a majority of Candadians want to keep the law the way it is.

Agree 100%.
 
Lutenist
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RE: Canada Could Do A 180 On Gay Marriage

Wed Feb 01, 2006 11:55 pm

The vote is a waste of time. It's mere posturing done so that Harper and the Conservatives can appear to be doing something for their constituents.

Even if the vote were to strike down gay marriage, such legislation would be challenged in court, and rather soon. The courts have made it quite clear that future decisions will be in favor of same-sex marriage. The Supreme Court of Canada will uphold the constitutional right to same-sex marriage. Gays and lesbians will go right back to marrying.

The only way the Conservatives can block same-sex marriage is to invoke the Notwithstanding clause, which allows a government to override constitutional rights. Harper will either honor his election pledge not to use this clause, or he will break this promise and risk a huge backlash from voters who fear he has hidden socially conservative agenda.

In Canada, same-sex marriage is here to stay.
 
jaysit
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 12:53 am

This is nuts.

So each time a new government comes into play, they can call a vote on the status of gay marriage? This puts gay citizens in a schizophrenic state of what their rights really are. Once granted by legislative fiat, isn't this right irrevocable?
Atheism is Myth Understood.
 
Lutenist
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 2:01 am

Quoting Jaysit (Reply 7):
Once granted by legislative fiat, isn't this right irrevocable?

Problem: it hasn't been granted by federal legislation. The Liberal government under Paul Martin referred same-sex marriage to the Supreme Court for an opinion on whether same-sex marriage is a constitutional right. The Court said it is, but the government, regrettably, didn't subsequently pass any federal legislation explicitly legalizing it. Therefore, Harper wouldn't be revoking anything.

In any case, it would have only been a law, and like any law it could have been simply repealed. Of course, the repeal would have been challenged--most likely successfully--in court.
 
Lutenist
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 6:31 am

My last post contains an error (a major one): on July 20, 2005, a bill became law in which same-sex marriage is recognized.  embarrassed 

I understand that repeal is still possible, but successful legal challenge would make repeal a waste of time.
 
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yowza
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 6:38 am

Gay marriage is not at all under threat in this country. I am not gay but I, like most Canadian, fully support their rights to marriage.

YOWza
 
yooyoo
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 6:40 am

Mark, why are you bringing this up?  Wink

*yawn* lets move on people of Canada...please.
I am so smart, i am so smart... S-M-R-T... i mean S-M-A-R-T
 
AerospaceFan
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 6:49 am

I've always distrusted Harper. He isn't even in office yet, and already he's wasting our time.
What's fair is fair.
 
jaysit
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 7:11 am

Quoting Lutenist (Reply 8):
The Court said it is, but the government, regrettably, didn't subsequently pass any federal legislation explicitly legalizing it. Therefore, Harper wouldn't be revoking anything.

But if the Supreme Court stated that it was a Constitutional right, I suspect that any attempt at legislating against it would create a judicial challenge. Once presented to the Court again, the Court would/could strike down the legislation, right? Thus, in essence, Harper's clucking about it is just a lame attempt at throwing red meat to his followers. I'm afraid I don't know much about Canadian jurisprudence, so please feel free to correct me.
Atheism is Myth Understood.
 
AerospaceFan
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 7:53 am

Quoting Jaysit (Reply 13):
But if the Supreme Court stated that it was a Constitutional right, I suspect that any attempt at legislating against it would create a judicial challenge. Once presented to the Court again, the Court would/could strike down the legislation, right?

Unlike the U.S. system, the Canadian system recognizes legislative (Parliamentary) supremacy via use of the "notwithstanding" clause, which essentially gives Parliament the power to over-ride decisions of the Canadian Supreme Court.

Harper would have to deal with the Canadian upper house, the Liberal-dominated Senate, in any such proposed legislation, and it seems likely the legislation would fail.

I'm not an expert on Canadian law; this is just from reading news accounts.

Harper apparently has said he will never use that powerful clause, but who the heck knows what he'll really do.

Martin said the same thing. AFAIK, he's never used it, and that was a problem for social conservatives who opposed gay marriage.

Harper would be wasting time and political capital.

[Edited 2006-02-01 23:55:48]
What's fair is fair.
 
AC320
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 8:18 am

Quoting AerospaceFan (Reply 14):
Unlike the U.S. system, the Canadian system recognizes legislative (Parliamentary) supremacy via use of the "notwithstanding" clause, which essentially gives Parliament the power to over-ride decisions of the Canadian Supreme Court.

Harper would have to deal with the Canadian upper house, the Liberal-dominated Senate, in any such proposed legislation, and it seems likely the legislation would fail.

Use of the clause does expire after 5 years. Since the most parliament can sit is 5 years, this does act as somewhat of a safeguard against the clause being renewed indefinately as each 5 year period expires.
fuddle duddle
 
AerospaceFan
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 8:22 am

Quoting AC320 (Reply 15):
Use of the clause does expire after 5 years. Since the most parliament can sit is 5 years, this does act as somewhat of a safeguard against the clause being renewed indefinately as each 5 year period expires

Thank you for the interesting input. So does this mean that each use of the clause expires after five years? Does this effectively mean that each piece of legislation that over-rules the Supreme Court of Canada has a five-year sunset (expiration) clause? And does this also mean that subsequent Parliaments could use the clause to pass identical legislation?

Thanks again.

[Edited 2006-02-02 00:23:38]
What's fair is fair.
 
skyservice_330
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 9:18 am

Quoting AerospaceFan (Reply 14):
Unlike the U.S. system, the Canadian system recognizes legislative (Parliamentary) supremacy via use of the "notwithstanding" clause, which essentially gives Parliament the power to over-ride decisions of the Canadian Supreme Court.

The notwithstanding claus, technically, does not override the SCC but is a section (s.33) of the Charter of Rights and Freedoms (CRF) that allows provincial or federal legislatures to enact legislation that violates, limit, or override specific sections of the CRF: fundamental freedoms (s.2), legal rights (ss.7-14), and equality rights (s.15). The claus does not apply to democratic rights (ss.3-5), mobility rights (s.6), or linguistic rights, including minority-language educational rights (ss.16-23.)

When expressly invoked, a law operates notwithstanding the circumvented sections of the CRF for 5 years, or for a shorter period if specified, subject to legislative debate and reenactment which is also limited to 5 years.

If my understanding is correct, if the free vote passed in the House of Commons and the law was reversed (without Harper invoking s.33) then it would only be a matter of time before someone challenged the law and it was deemed unconstitutional and then Harper would either have to change the law back or invoke s.33 on the marriage law. The SCC, in the same-sex reference, refused to say whether the definition of one man and one women was unconstitutional however if I am not mistaken many of the provincial supreme courts in their rulings ruled it unconstitutional.

Bottom line: If he wants to change it back he is facing an up hill battle that will cost him politically IMO. The notwithstanding claus can be a very controversial issue and the fact that it has never been used by the federal government (only provincial governments have used it) makes it even more of a political hot potatoe that Harper would be wise not to touch.
 
skyservice_330
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 9:23 am

Quoting AerospaceFan (Reply 16):
Thank you for the interesting input. So does this mean that each use of the clause expires after five years? Does this effectively mean that each piece of legislation that over-rules the Supreme Court of Canada has a five-year sunset (expiration) clause? And does this also mean that subsequent Parliaments could use the clause to pass identical legislation?

From: http://laws.justice.gc.ca/en/charter

Section 33 of the CRF, the notwithstanding claus:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of re-enactment made under subsection (4).
 
AerospaceFan
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RE: Canada Could Do A 180 On Gay Marriage

Thu Feb 02, 2006 1:49 pm

^^^ Most interesting -- thank you kindly for the messages and references, SKYSERVICE_330!
What's fair is fair.

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