Canada: Rethinking Courts, Rights,
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