Friday, June 17, 2005

Same-Sex Marriage: The First Amendments

Well, the House of Commons committee studying Bill C-38, the Civil Marriage Act, just tabled its first report. And to no one's surprise, two amendments have been posted.

Here's the first amendment:

That Bill C-38, in the Preamble, be amended by adding after line 11 on page 2 the following:

“WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;”

The positioning of this paragraph would make it part of the pre-amble, following the paragraph discussing the freedom of religion clause.

It doesn't seem to say a lot, does it? However, it's probably needed as court insurance: a preacher denouncing SSM in a sermon can point to this paragraph in the pre-amble and say, "I have not committed a hate crime. I have not acted against the public interest in denouncing the notion of gay marriage."

Or at least that's the theory. No one can guarantee that some bloody-minded activist won't try to get a church shut down over gay marriage. It'll be interesting to see if this is strong enough to survive a court challenge.

The second amendment is more interesting:

That Bill C-38, be amended by adding after line 42 on page 2, the following new clause:

“3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.”

Note the language here. It looks broad enough that it can not only cover churches but other faith-based organizations which own properties that could be used for SSM ceremonies. The word "sanction" could also be applied to cover such things as termination of employment.

However, look at the limitation: "any law of the Parliament of Canada." The problem is that it excludes provincial legislatures, and since recognition of marriages falls under provincial jurisdiction, this clause won't necessarily prevent a prosecution under provincial human rights codes.

The best that this can hope to be is a directive to provincial commissions. It's still an improvement, but only a minor one, and I doubt if it's strong enough to withstand a court challenge.

Will it be enough to mollify those backbench Liberals who are uncomfortable with the bill? I'd say a few, but by no means all.