|
Source: (consider it)
|
Thread: Gay marriage - what was the North American approach?
|
Anglican't
Shipmate
# 15292
|
Posted
As I'm sure you all know, legislation is being prepared in the UK to put gay marriage on the statute book.
It's been said that there are a few legal obstacles as the legislative draftsmen try to graft on gay marriage to the existing marriage legislation that has been around for a while. For example, the statute book has a definition of the consummation of marriage which has obviously been designed for a heterosexual married couple and won't work when applied to two men or two women.
I wondered if similar problems had been encountered in the United States and Canada when introducing gay marriage legislation? I know that a lot of English common law has been imported into North American legal systems, but I'm interested to know whether this historical 'baggage' has caused headaches in the way that it is in the UK.
Posts: 3613 | From: London, England | Registered: Nov 2009
| IP: Logged
|
|
Crœsos
Shipmate
# 238
|
Posted
quote:
Originally posted by Anglican't:
It's been said that there are a few legal obstacles as the legislative draftsmen try to graft on gay marriage to the existing marriage legislation that has been around for a while. For example, the statute book has a definition of the consummation of marriage which has obviously been designed for a heterosexual married couple and won't work when applied to two men or two women.
To the best of my knowledge, neither Canada nor any U.S. state has legislation on marital consummation anymore. Both countries allow for no-fault divorce, so consummation isn't usually an issue of legal contention.
quote:
Originally posted by Anglican't:
I wondered if similar problems had been encountered in the United States and Canada when introducing gay marriage legislation?
Not so far as I know. Very little of marital law in either country is still gendered. The few "husband laws" or "wife laws" still on the books in Canadian or American jurisdictions are mostly unenforced (and likely unenforceable) relics of a more sexist era. As such it's fairly easy to simply state "the gender restrictions on the parties to a marriage no longer apply". For the U.S. jurisdictions that have adopted same-sex marriage to date, bureaucratically the change was about as complicated as removing racial restrictions on marriage was in the mid-twentieth century.
Of course, neither the United States nor Canada has an official state religion, as is the case in the English portion of the U.K. As such, neither had to worry about maintaining congruity between state policy and church theology on this issue.
--------------------
Humani nil a me alienum puto
Posts: 10706 | From: Sardis, Lydia | Registered: May 2001
| IP: Logged
|
|
Horseman Bree
Shipmate
# 5290
|
Posted
The case in Canada was helped by the Constitution of 1982, which specified Equality Rights: (section 15): quote:
equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
There is a rule about limitations, also constitutionally defined. quote:
The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified."
both quoted from Wikipedia
So the Canadian law has an opposite approach from the American: discriminations have to be vetted for constitutionality before they can be enforced, rather than proving a discrimination after the fact.
The arguments by the Bishops would carry little weight in a Canadian court, since they are advocating for a clear discrimination that has no discernible purpose to the state as a non-religious entity.
The religious are allowed to enforce "club rules for club members" within reason.
So, yes, you can update the various constitutional stages of British/American history, should you wish to do so.
--------------------
It's Not That Simple
Posts: 5372 | From: more herring choker than bluenose | Registered: Dec 2003
| IP: Logged
|
|
Horseman Bree
Shipmate
# 5290
|
Posted
Bumping this up to point out that the North American view, or, at least, the US view, is changing rapidly.
More than 200 large corporations have filed briefs in the Defense of Marriage case in the Supreme Court, arguing that not only does the act cause difficulties for corporations in the business sense, but also those corporations are forced to discriminate between their various employees on grounds that are actively harmful to the work those corporations do.
The issues revolve around payroll and benefit, especially if those companies operate in more than one state; around fairness issues (in that some employees are treated differently for reasons that are irrelevant to their work); and around corporate identity issues (in that some employees are discriminated against for reasons that have nothing to do with their work)
quote:
“Mars’ decision to support the amicus brief was based on our belief that all married Mars associates should be treated equally under the law,” said a statement from the candy maker.
A Johnson & Johnson statement said: “We have joined the amicus brief because, as an employer, we believe that all lawfully married employees should be treated by our company in the same way.”
John Holdredge, of Holdredge Wines in Healdsburg, Calif., said in a telephone interview, “We don’t want to have to ask employees about their orientation and we don’t want to have to discriminate.”
They also state that the views about GLBT issues, and about SSMs in particular, are changing rapidly across the US, much more wuickly than might have been expected.
A parallel case regarding the need to strike down Proposition 8 in California is being heard at the same time by the court. The firms involved have filed amicus briefs in that case, on the same grounds.
--------------------
It's Not That Simple
Posts: 5372 | From: more herring choker than bluenose | Registered: Dec 2003
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
For info, this is the Australian position . Lack of consummation is no longer a ground for declaring a marriage to be a nullity.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
Crœsos
Shipmate
# 238
|
Posted
quote:
Originally posted by Horseman Bree:
quote:
“Mars’ decision to support the amicus brief was based on our belief that all married Mars associates should be treated equally under the law,” said a statement from the candy maker.
This is something of a switch. The Mars candy company is run by the highly secretive Mars family which has (quietly) been giving money to lots of socially conservative causes, including anti-gay groups, for years. If they've flipped on this issue, that's pretty huge.
quote:
Originally posted by orfeo:
For info, this is the Australian position . Lack of consummation is no longer a ground for declaring a marriage to be a nullity.
Maybe it's just because I've got a filthy mind, but "the Australian position" sounds like a particularly kinky sex act. Not sure what it would involve, but the phrase "down under" would probably feature somewhere in a description.
--------------------
Humani nil a me alienum puto
Posts: 10706 | From: Sardis, Lydia | Registered: May 2001
| IP: Logged
|
|
Jane R
Shipmate
# 331
|
Posted
Croesus: quote:
Of course, neither the United States nor Canada has an official state religion, as is the case in the English portion of the U.K...
And yet somehow the C of E fails to exercise as much political influence in modern Britain as the Religious Right does in America.
Posts: 3958 | From: Jorvik | Registered: May 2001
| IP: Logged
|
|
Crœsos
Shipmate
# 238
|
Posted
quote:
Originally posted by Jane R:
Croesus: quote:
Of course, neither the United States nor Canada has an official state religion, as is the case in the English portion of the U.K...
And yet somehow the C of E fails to exercise as much political influence in modern Britain as the Religious Right does in America.
That's one data point which seems to illustrate that a teamup between Cæsar and the Church doesn't make Cæsar more pious, it just makes the Church Cæsar's tool.
--------------------
Humani nil a me alienum puto
Posts: 10706 | From: Sardis, Lydia | Registered: May 2001
| IP: Logged
|
|
Jane R
Shipmate
# 331
|
Posted
That's true, though it was more true in the past than it is now. I personally am in favour of disestablishment, but I don't think you can argue *from the situation as it is now in the UK* that the C of E is holding the government back from something that it wants to do. If this were possible, the legislation on SSM would not be going through Parliament.
Posts: 3958 | From: Jorvik | Registered: May 2001
| IP: Logged
|
|
Augustine the Aleut
Shipmate
# 1472
|
Posted
quote:
Originally posted by Jane R:
Croesus: quote:
Of course, neither the United States nor Canada has an official state religion, as is the case in the English portion of the U.K...
And yet somehow the C of E fails to exercise as much political influence in modern Britain as the Religious Right does in America.
Note, however, that there is no formal separation of church and state in Canada and that, in some provinces, RC and other schools receive public funding. Military and prison chaplaincies are paid by taxpayers.
In Canada, marriage law is federal, but implemented provincially, so there was a grey zone of about two years when some provinces interpreted the law to permit same-sex marriages, but others did not. In 2003, then-Prime Minister Jean Chrétien (a practising RC) presented draft legislation to the Commons and asked the Supreme Court for a reference on the law's constitutionality. By 2005, then-Prime Minister Paul Martin (another practising RC) introduced the Civil Marriages Act, which went through easily (it contained a clause recognizing the rights of churches to solemnize only those marriages which they wished to solemnize).
An incoming Conservative government allowed its backbenchers to bring in a motion to reverse the Act, but this constitutionally dubious measure was defeated in the House. They haven't tried since.
The religious right in Canada is a marginal phenomenon and Christian churches tend to lean leftward-- the RCs, while staying kosher to Rome on SSMs, are strong in supporting social and overseas development, as well as on aboriginal issues. There is interesting stuff about our left-wing party's foundation by Baptist and United Church clergy.
[ 11. March 2013, 00:04: Message edited by: Augustine the Aleut ]
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
| IP: Logged
|
|
Sober Preacher's Kid
Presbymethegationalist
# 12699
|
Posted
The Civil Marriage Act was a very Canadian law; churches wagging the government's tail. It has always been that way, though the usual battleground was primary education. In Canada it has always been the churches that tell the government what to do, not the other way around. The political virtues of Tolerance and Moderation in English Canada are deeply-rooted in the practical need to not annoy a particular church too much so that you could get votes and get things done.
The "saving" clause is a tip of the hat to the Roman Catholic Church who simply refused to be bothered by a single government's decision (they are above such things). The United Church was on the other side of the debate, actually. We had our Great Gay Debate in 1988 and had had two decades of openly gay clergy by that time, so we filed a submission supporting the Act.
With respect to Augustine, there was no legal grey area. The capacity to marry has always been a Federal jurisdiction, except there was only one Act in that area, passed a century ago, the Marriage (Prohibited Degrees) Act. A Province cannot inhibit Federal law, just as they can't inhibit the enforcement of the Criminal Code.
The grey area was actually the result that the Charter decisions were litigated in each Province's Superior Court and then Court of Appeal. These decisions are binding only in the province of the court. Since the Gay Marriage cases never reached the Supreme Court, there was no chance for the law to cross boundaries.
The Civil Marriage Act headed off the expected Supreme Court case.
In Canada there is only one unified judicial system, not two. All provincial superior and appeal court judges are appointed and paid Federally, but provinces pay for the courts and enact civil law and procedure. The Federal government determines criminal law and procedure. All decisions of any court may eventually be appealed to the Supreme Court of Canada, which may hear any appeal it wants on any law it wants, from municipal bylaws to provincial civil lawsuits to criminal appeals.
The Federal Court is confined to a specific few categories: Federal regulatory law, maritime law and Federal public administration law.
There are very, very few uniform "property & civil rights" matters that are federal heads of power in Canada, the definition of marriage is only and the definition, administration and granting of divorce is another.
--------------------
NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
| IP: Logged
|
|
Augustine the Aleut
Shipmate
# 1472
|
Posted
SPK's description of the grey zone is largely correct. I had hoped to spare shipmates the sordid details-- likely only of interest to Australians (I find that my US lawyer friends stare at me in disbelief, so that I must always give them case references to comfort them) on account of our semi-similar constitutions-- but should have used a preposition to clarify that it was not provinces as entities which were responsible, but rather the varying cadences of judicial proceedings. (My French lawyer friends lecture me that we should be more rational in our structures and procedural paradigms, but my Spanish lawyer friends always nod quietly, and then say that there are interesting comparisons with the charter Queen Esmeralda the Lame gave the pueblo of Villalcazar in 823, and then they're off for the better part of a bottle of rioja-- nobody can beat them for tangents).
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
| IP: Logged
|
|
Horseman Bree
Shipmate
# 5290
|
Posted
It would appear that the political climate in the US on this issue is changing much more rapidly than anyone expected
And, at last, we have politicians who can speak their minds rather than parroting party lines or "pledges" that are near traitorous, made to unelected vigilantes.
A truly inspiring call to decent values.
Sorry, forgot to add the link to Slacktivist's comment that led me to the video.
[ 13. March 2013, 01:30: Message edited by: Horseman Bree ]
--------------------
It's Not That Simple
Posts: 5372 | From: more herring choker than bluenose | Registered: Dec 2003
| IP: Logged
|
|
no prophet's flag is set so...
Proceed to see sea
# 15560
|
Posted
There are elements of this thread that need to be studied, reread and retained so they can be read again. I especially found informative Augustine and Sober Preacher's postings. Thanks more excellently.
The whole thing of course devolves in my less sophisticated understanding to everyone being allowed to marry anyone, but only one person at a time, and religious authorities having the choice of whom to marry, but gov't officials like justices of the peace having to follow the law by treating everyone alike.
--------------------
Out of this nettle, danger, we pluck this flower, safety.
\_(ツ)_/
Posts: 11498 | From: Treaty 6 territory in the nonexistant Province of Buffalo, Canada ↄ⃝' | Registered: Mar 2010
| IP: Logged
|
|
|
|
Crœsos
Shipmate
# 238
|
Posted
quote:
Originally posted by Horseman Bree:
And, at last, we have politicians who can speak their minds rather than parroting party lines or "pledges" that are near traitorous, made to unelected vigilantes.
And here's the counterpoint testimony, whose main point (aside from some HIV denialism) is that if same-sex marriage is legalized, gay people might start having sex!!!
--------------------
Humani nil a me alienum puto
Posts: 10706 | From: Sardis, Lydia | Registered: May 2001
| IP: Logged
|
|
Horseman Bree
Shipmate
# 5290
|
Posted
If gays haven't been having sex up to now, what have they been doing? Or does doing it in a closet not count?
--------------------
It's Not That Simple
Posts: 5372 | From: more herring choker than bluenose | Registered: Dec 2003
| IP: Logged
|
|
lilBuddha
Shipmate
# 14333
|
Posted
Well, if former President Clinton's definition is to be used, some of them haven't had sex. Some of the males and nearly all of the lesbians. Unless toys count.
[ 14. March 2013, 05:49: Message edited by: lilBuddha ]
--------------------
I put on my rockin' shoes in the morning
Hallellou, hallellou
Posts: 17627 | From: the round earth's imagined corners | Registered: Dec 2008
| IP: Logged
|
|
Anglican't
Shipmate
# 15292
|
Posted
quote:
Originally posted by Crœsos:
And here's the counterpoint testimony, whose main point (aside from some HIV denialism) is that if same-sex marriage is legalized, gay people might start having sex!!!
I'm willing to bet that within the next year we discover that this man has a profile on Grindr.
Posts: 3613 | From: London, England | Registered: Nov 2009
| IP: Logged
|
|
Spiffy
Ship's WonderSheep
# 5267
|
Posted
quote:
Originally posted by Crœsos:
quote:
Originally posted by Horseman Bree:
And, at last, we have politicians who can speak their minds rather than parroting party lines or "pledges" that are near traitorous, made to unelected vigilantes.
And here's the counterpoint testimony, whose main point (aside from some HIV denialism) is that if same-sex marriage is legalized, gay people might start having sex!!!
Oh, that'd be nice, I haven't had any in a while and clearly it's just because SSM is not legal in my jurisdiction. Has absolutely nothing to do with not dating for the last several years.
Probably good I'm not planning any trips to Washington soon, as it is legal there and I would be distracted by all the orgasms.
That guy is precious. I just want to pinch his cheeks and feed him a cookie and make sure he looks both ways before crossing the street.
--------------------
Looking for a simple solution to all life's problems? We are proud to present obstinate denial. Accept no substitute. Accept nothing.
--Night Vale Radio Twitter Account
Posts: 10281 | From: Beervana | Registered: Dec 2003
| IP: Logged
|
|
Golden Key
Shipmate
# 1468
|
Posted
Spiffy--
Surely he wouldn't allow himself to look *both* ways? ![[Biased]](wink.gif)
--------------------
Blessed Gator, pray for us!
--"Oh bat bladders, do you have to bring common sense into this?" (Dragon, "Jane & the Dragon")
--"Oh, Peace Train, save this country!" (Yusuf/Cat Stevens, "Peace Train")
Posts: 18601 | From: Chilling out in an undisclosed, sincere pumpkin patch. | Registered: Oct 2001
| IP: Logged
|
|
Sober Preacher's Kid
Presbymethegationalist
# 12699
|
Posted
quote:
The religious right in Canada is a marginal phenomenon and Christian churches tend to lean leftward-- the RCs, while staying kosher to Rome on SSMs, are strong in supporting social and overseas development, as well as on aboriginal issues. There is interesting stuff about our left-wing party's foundation by Baptist and United Church clergy.
I always say that the Christian Left has had more influence and been in power far more than the Christian Right ever has. Alberta and Quebec are the only provinces where the Christian Right ever had electoral success.
The Christian Left in Canada always worked on the assumption that the churches wag the government's tail through the electoral process, NOT the other way around. Therefore pluralism and government neutrality were excellent protections for church autonomy.
The United Church still has a close relationship with the NDP. All of the United Church ministers who sit as legislators that I can think of are NDP members. Conversely the NDP still has a close relationship with the United Church. The circle still circulates. The NDP is not ashamed of its Social Gospel roots and quietly embraces them. Rebecca Blaikie, the Party Secretary, is a PK like me; her father was a longtime NDP MP, eventually he became Dean of the House.
--------------------
NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
| IP: Logged
|
|
Alogon
Cabin boy emeritus
# 5513
|
Posted
I don't know if this is the best thread for it, but this article points to a somewhat new argument for gay marriage. It has been made, partly, by its opponents and has surfaced in Tuesday's Supreme Court oral arguments.
Most comments below the article are not impressed, but I think it's worth taking on board.
Homosexuality as Infertility
--------------------
Patriarchy (n.): A belief in original sin unaccompanied by a belief in God.
Posts: 7808 | From: West Chester PA | Registered: Feb 2004
| IP: Logged
|
|
orfeo
Ship's Musical Counterpoint
# 13878
|
Posted
quote:
Originally posted by Alogon:
I don't know if this is the best thread for it, but this article points to a somewhat new argument for gay marriage. It has been made, partly, by its opponents and has surfaced in Tuesday's Supreme Court oral arguments.
Most comments below the article are not impressed, but I think it's worth taking on board.
Homosexuality as Infertility
The line of argument has been around Dead Horses again and again, not to mention every other message board under the sun, with the recurring point that heterosexual people with no capacity to procreate are allowed to marry.
The whole reason it crops up all the time is because of rather silly individuals who, faced with a need to explain how homosexuals are 'different' from heterosexuals to justify excluding homosexual marriage, grasp for infertility as the dividing line between the two groups.
When of course it isn't.
--------------------
Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
| IP: Logged
|
|
HenryT
Canadian Anglican
# 3722
|
Posted
When government lawyers in the Canadian court cases introduced those arguments, I thought they'd been instructed to "fight to lose". Now I am less sure; however I do feel that certain arguments are introduced because they have partisans, rather than because they have merit. Or at least, the accepted practices for granting marriage licenses do not conform with those arguments (from fertility, generally but not exclusively. )
The arguerers want to tell those partisans that they brought those "knockout" points to the court, and it's the fault of the "big bad court"-even if it was always likely that the court would not be remotely convinced.
--------------------
"Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned" P. Henry, 1788
Posts: 7231 | From: Ottawa, Ontario, Canada | Registered: Dec 2002
| IP: Logged
|
|
Alogon
Cabin boy emeritus
# 5513
|
Posted
Orfeo, your reply suggests that you didn't grasp the argument.
It is not simply that homosexuals should be allowed to marry even though they cannot reproduce, because heterosexuals are allowed to do so.
It is that even infertile marriages serve the goal of reproduction by keeping sexual activity within the marriage, rather than straying into situations mischievous for other marriages. This by-product, if you will, applies equally well to same-sex marriages-- or maybe even better, given that the infertility is not in this case due to the biology of either partner.
I've been around like you, but have never seen this argument before. Where has it appeared here?
--------------------
Patriarchy (n.): A belief in original sin unaccompanied by a belief in God.
Posts: 7808 | From: West Chester PA | Registered: Feb 2004
| IP: Logged
|
|
|
Printer-friendly view
