Wednesday, July 13, 2005

Compromise and be wise

This is closer to what I wanted to see from the federal Tories on same-sex marriage legislation: Tolerate, but ameliorate the obvious and immediate flaws. CALGARY -- The Alberta government has backed off its plan to fight tooth and nail against federal same-sex marriage legislation, announcing yesterday that it has no choice but to issue marriage licences to gays and lesbians. [...] The Alberta government had previously mused about getting out of the marriage business altogether, by pledging to only issue marriage licences to those unions sanctioned by religious organizations. During the province's election campaign last November, Mr. Klein, who has called same-sex marriage "morally wrong," vowed that his government would use "whatever legal means are at our disposal" to make sure marriage remains between a man and a woman. "We will proceed to issue marriage licences to same-sex couples much to our chagrin following the proclamation of the federal Civil Marriage Act, which was passed by the Parliament of Canada," Mr. Klein said. In the meantime, Alberta's cabinet approved moving forward with its own legislation that would ensure that religious organizations and others will be able to express their opposition to the change in the definition of marriage based on their "social or cultural beliefs," and that they will not be forced to "advocate, promote or teach about marriage in a way that conflicts with their beliefs." I appreciate that, while I don't see it as a threat to society, moral danger, or indeed any other kind of hazard commensurate with some of the slightly less temperate rhetoric, that others will. The best solution, then, is to give serious protection for differences in individual conscience, with as much legal force as possible shielding those with honest and considered beliefs from frivolous attention-seeking lawsuits or sheer punitive revenge-fantasy tactics from the militant on the Pro side. Provincial legislation bolstering the half-hearted provisions for freedom of conscience in the federal bill is a start, anyway, though I have to admit challenges on the basis of constitutionality do seem inevitable. Angry in the Great White North, conversely, thinks this approach is doomed: This is significant. A basic legal principle is that a law that is not enforced is no law at all. By essentially making the enforcement of the civil marriage legislation optional, the province is saying it is not really a law. What does the future hold? Well, expect some law suits directly challenging the law protecting marriage commissioners. Boring! No TV coverage for that. Here's what I think is going to happen. Never satisfied until everyone agrees with them, and unhappy that those who are going unpunished for having doubleplusungood thoughts and opinions, gay activists will identify a small community in Alberta with only one marriage commissioner who is known to refuse to officiate over a same sex marriage (based on statements, not that anyone has ever asked him to), and who is supported by the community's tiny rural population of traditionalists. Expect a busload of gay couples, licenses in hand, to descend on the community, demanding to have the commissioner to perform the marriages, arguing that requiring them to find another commissioner somewhere else in Alberta, or in another province, is unconstitutional. I think it is possible to enforce the law without requiring adherence on the part of every single marriage commissioner - if, indeed, only by the device of maintaining universal access to "neutral" commissioners. If it's the case that there's what could be deemed reasonable access throughout the province to marriage - i.e., if it's not a particularly different experience, requiring any more extensive preparation for a couple to be married whether straight or gay - then the law is honoured, and no inequality before the state is suffered by any. This could mean that, for instance, small towns with resident marriage commissioners strongly in favour of the traditional definition might have to share an itinerant "neutral" commissioner. Yes, it'd be an inconvenience - but it could be done. I believe it is possible to have one's cake and eat it too, in this case - and, furthermore, that the majority can be satisfied with compromise, notwithstanding the immovable positions of sign-waving protestors on either side.

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