Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

By Jason Pierceson | Go to book overview

10

Canada: Rethinking Courts, Rights,
and Liberalism

THE PAST HALF DECADE has seen remarkable developments in Canada concerning gay rights claims, particularly with same-sex marriage. Same-sex marriages have been legalized in a majority of provinces and the government will likely make this national policy. This chapter examines these developments and contrasts them to the United States. Most notably, I argue that the differences stem primarily from the combination of a richer liberalism in Canadian political culture and a judiciary emboldened by a relatively recent constitutional change that elevated its rights consciousness, as well as that of the citizenry. These developments also illustrate the ability of courts to achieve social change.

In a few short years, Canada has gone from a typically gay rights hesitant country to one in which it is increasingly clear that same-sex marriage, or a similar policy, may become a political and legal reality. Even some conservatives increasingly support this, like former Conservative Party leader Joe Clark, or at least see it as inevitable.1 Carl Stychin attributes this kind of rapid change to the fact that Canada is a postmodern nation, in that it understands and values marginalized groups. These groups are not placed outside the polity but are incorporated. They are part of the national political dialogue and often change the parameters of political practice and discourse in fundamental ways. Therefore, according to this argument, the rapid change on same-sex marriage in Canada stems from the fact that queer “others” have transformed the society and legitimated same-sex marriage. According to Stychin, “there may be found in the fabric of Canadian life a greater willingness to incorporate new social movements and identities in terms of national citizenship.… The Canadian national imaginary displays an instability which leaves it particularly open to contestation.”2 In this view, change takes place outside of the formal legal and political processes; indeed, it is the authority of the state that preserves the status quo against which the outsiders rebel. However, this explanation falls into the “everything that changes is queer” category, often put forth by postmodern theorists. Since liberalism is their great foil, they cannot admit that fundamental change can be facilitated by liberalism. Liberalism is always an agent of oppression, never liberation. Recall Bakan's description of Canadian courts as conservative entities as cited in Chapter 1. This position also has trouble explaining the rapid about-face from Canada's political hostility to gay rights claims as recently as the mid-1990s. The actual explanation for Canada's rapid change, as mentioned above, is thoroughly liberal and rights based. The dynamic reflects not Foucault, but Mill and Hart. Canada certainly has a different, and often more progressive, political culture than the United States, but this stems from

-165-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • 1: Introduction 1
  • 2: U.S. Federal Courts and Gay Rights a History of Hesitancy 21
  • 3: Liberalism and Gay Politics 33
  • 4: Toward a Better Liberalism 49
  • 5: Sodomy Laws, Courts, and Liberalism 62
  • 6: Lessons from Continued Sodomy Adjudication 77
  • 7: Courts and Same-Sex Marriage in the United States 104
  • 8: Courts and Same-Sex Marriage in the United States 130
  • 9: Developments After Vermont 144
  • 10: Canada 165
  • 11: Courts, Social Change, and the Power of Legal Liberalism 187
  • 12: Conclusion 195
  • Notes 199
  • Index 247
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 256

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.