The political year seems to have ended very well for President Obama. Because of Republican co-operation he got his (amended) tax bill through, DADT was repealed, the Smart Treaty was approved, as was the bill to assist 9/11 first responders. It is interesting to consider why all of this has happened after the Nov mid-terms and why Obama has had more success with compromise now than before. It seems that the "party of no" has become the "party of yes". Interesting.
In his year end Press Conference, Obama was, as usual, very impressive. Smart and articulate. He answered the questions very adroitly. On one answer, however, Obama, in my opinion, fared very poorly - the one dealing with same sex marriage.
Obama continues to "struggle" with this issue, but apparently, from his answer, seems to still be opposed. Or in the least he is not prepared to come out, defend it and say he is in favour.
My question is simple: What in the world is the source of this "struggle"? For a person who speaks so passionately about fundamental values, basic dignity, and human rights, in relation to topics such as immigration reform, Don't Ask Don't Tell, redistribution of wealth, and education and health care rights, you would think that the issue of gay marriage would be an absolute no brainer. For persons truly committed to human rights and dignity for all, there is no question that gays and lesbian couples who want to make a marriage commitment to one another, should be free to do so. Marriage is obviously meaningful to them and deprives no-one else of anything. Traditionalists or religious people can continue to think it is wrong, weird, sinful or whatever, but so what? Gay marriage has nothing to do with them. It is simply none of their business.
So back to Obama. What is behind his "struggle"? Political expediency? Getting re-elected? His own personal religious beliefs? His links to his community? Bigotry? Indifference to the rights of others? Is he disingenuous when he talks about basic values and dignity?
Whatever the answer is, it is not good. This is not a small point. It goes to the heart of who President Obama is and what he really believes and is prepared to put himself on the line for.
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Good points, Lewis. And I agree with you. Since state and religion are held to be separate in the West, it should be obvious that: marriage, from the point of view of the law, is a civil transaction, - not a religious one. As such, two consenting adults should be fully protected against any form of gender-based discrimination in that transaction.
ReplyDeleteGoing straight for the achilles' heel, huh?
ReplyDeleteI thought you'd be interested in Ellen Degeneres' interview with John McCain, in which she asked him where he stood on the issue: http://www.youtube.com/watch?v=A7addd1-SY8.
Happy New Year!
:-) I think you must be an American, One Red Sock... a Canadian would have said 'eh?' instead of 'huh?'
ReplyDeleteWatched the vid you gave, ORS. Here's McCain, in essence: 'I believe people should be able to enter into legal agreements, and that's something we should encourage - except for marriage, which has a unique status.'
Marriage has the status given to it in law - that's all.
I think the principal reason for Obama's struggle - and, Lewis, with respect, I think you know this - is the politics of the issue. The fact is that there are many many Americans (likely a substantial majority of reliable voters) who would agree strongly with McCain's statement that One Red Sock cited. And, for that reason were Obama to endorse same-sex marriage, he would be courting political suicide. Now, you might say that Obama is being disingenuous because he's not coming out and saying that this is the problem. Perhaps, but I expect that he is far from unique in that respect. You might as well write the same post and substitute McCain's name (or Bush's) for Obama. (Of course, that would mean that you would have to criticize your political heroes, while perhaps cutting your bete-noir some slack.)
ReplyDeleteA secondary reason for his struggle might be - and I'm just supposing here - that the issue is more complex than you suggest, and not merely because of the politics. The problem here is that marriage is not, for many earnest and well-meaning people (and their religious communities), some mere synonymn for civil union. As such, any change of meaning in law carries, they suppose, implications for them. (I suspect, by the way, that this is likely a concern of figures like Romney and perhaps Huckabee. It's probably too complex for Palin to grasp, but if it was patiently explained to her, she might well also share it.) I did not think that this concern was well-founded, until six years ago when the Canadian government, in legislating same-sex marriage, thought it necessary to expressly exempt such religious institutions from those new provisions. The presupposition was clearly that - absent such legislative exemption - those communities and their members would be obliged to make what is for them a sacrament conform to shifts in the secular winds. One might suggest that they would still be able to resort to the Charter's guarantee of freedom of conscience for protection, but cases like Hutterian Brethren seem to suggest that that particular Charter guarantee has little potency when it requires even minor accommodation. (And yes, I realize that McLachlin did not think that the suggested accommodation was "minor", but four SCC justices disagreed with her, and I think they were obviously right since the government had managed doing it for years without experiencing other than a little inconvenience.)
This does not mean that Obama is right (or wrong). The point is that the question is not, as you say, "simple".
I should add, Lewis, that I find it curious that you criticize Obama for what you see has his failing on this issue, when it is so common to the politicians that you have extolled on this blog and elsewhere. Is it because this is the one issue upon which you can criticize him while appearing "progressive"?
My own view, by the way, is that government should get out of the business of "marriage" altogether and recognize some formalized civil union. Such union can be based on whatever criteria the state deems appropriate or the law requires, and accord whatever advantages it wants to such an arrangement. "Marriage" could then be left to the religious institutions to administer in comformance with their own doctrinal norms.
Russ
"The problem here is that marriage is not, for many earnest and well-meaning people (and their religious communities), some mere synonymn for civil union."
ReplyDeleteToo bad, so sad. Marriage is governed by civil law at the present time in the West. As such, it should be governed by the same consideration for rights as any other civil law.
I do like your solution, though, Russ. Why don't you do something about that? Advocate for change? It would be a solid social contribution that goes beyond law.
Marnie, I'm merely trying to explain why Obama is - for better or for worse - hesitating on this issue. You might think that the position I ascribed to those people is weak as a matter of law, but it remains a sociological fact that translates into a political reality which Obama feels - rightly or wrongly - that he cannot ignore.
ReplyDeleteMoreover, your position that marriage "should be governed by the same consideration for rights as any other civil law" doesn't get us anywhere, since those rights you refer to are inherently limited (both as a matter of the Charter and as a matter of common law), and so we're still left with the question of where and on what bases to draw those limits. Even if we strip away the politics (which Obama evidently cannot do any more readily than his opponents - a convenient oversight in Lewis's post), it is not an easy question to answer, particularly if it interferes (as the Parliament of Canada clearly anticipated it might) with matters of conscience. That's why I think the answer lies with government getting out of the business of "marriage" altogether.
As for advocacy, I do my bit, but never in public. (This recent phenomenon of law professors ganging up to write open letters to the PM in the Globe & Mail is irritating, not to mention hopelessly naive and ineffective).
Russ
Hi Russ, sorry it's taken me so long to reply to your comments; I've been a little bit busy.
ReplyDeleteOur rights are "inherently limited?" by the Charter??
The Charter guarantees no discrimination based on gender. That's it. There's no room in that for discrimination based on gender being justified as a matter of conscience.
If marriage is governed by the Charter rights - and it is, of course, because ALL law in Canada is required to conform to rights granted in the Charter - then that's the end of the matter from a legal perspective.
I agree with your solution, as I said previously, and it would help to resolve the issue of politics - which should also be kept out of legislation.
Well maybe you could consider some form of public advocacy in the future, Russ. Your law students clearly look up to you, as do your colleagues and peers. It doesn't HAVE to be about writing letters to the Globe & Mail.
And btw, I suspect that the PM pays very close attention to his public reputation.
Marnie,
ReplyDeleteOur rights are indeed inherently limited. Our common law rights are inherently limited by common law, and our Charter rights are inherently limited by the Charter itself (see Section 1, which refers to "limits". You'll see that I'm not after all making up some outrageous suggestion). You take a black-and-white view on legal rights and obligations - I realize this from our earlier exchange on the Hutterian Brethren case - which is fine, but you should understand that it is not at all unusual for rights and obligations to be circumscribed.
To take the example you give - you say that "the Charter guarantees no discrimination based on gender" and that "that's it". But that's simply not so. There are lots of jobs (prison guards, women's shelter staff, etc) that are generally seen as gender-specific. Similarly, while the Charter guarantees freedom of speech, we have the tort of defamation. So again, there are limits. The Charter guarantees freedom of association, and yet the Parliament of Canada is able to criminalize members of certain organizations simply on the basis of their membership.
It's not enough to say that the Charter says such-and-such and therefore "that's it". It's not "it". What the Charter says - and what any common law right prescribes - is the starting point, and then the question arises as to where we locate the end point. In other words, the point of disagreement on these issues isn't whether there are inherent limits on rights and obligations or not. There are. The point of disagreement is where we draw the balance.
Russ, with respect, I don't see how your examples of 'legitimate gender discrimination' apply to the concept of marriage.
ReplyDelete(Okay, I do get the prison analogy as it CAN apply to marriage; but, that's a state of mind, not a legal context.)
Ditto for the "women's shelter" thing.
You're talking theory, - not truly applicable instances of legitimate limits.
Nor can you find one, because you don't really believe that gays should be proscribed by law from getting married.
"You take a black-and-white view on legal rights and obligations - I realize this from our earlier exchange on the Hutterian Brethren case - which is fine, but you should understand that it is not at all unusual for rights and obligations to be circumscribed."
We're not talking about the Hutterite Brethern case, and that is an exceptionally patronizing remark, which did nothing to advance your case.
It's unfair to personally slam me based on a post that has no place in here, and regarding which I can hardly burden Lewis with a response.
The unfairness of your statement makes me suspect an inner lack of conviction in what you're saying...
People always rely on personal shots when logic and reason begin to fail them...
Marnie,
ReplyDelete*sigh* I was not meaning to suggest that "legitimate gender discrimination" applies to marriage. I was simply responding to your (legally incorrect) standpoint that rights don't have limits, by drawing from the example you gave. I'm sorry if you find that "patronizing" or that you see it as "personally slam[ming] you". Similarly, I used the Hutterian Brethren case as an example of where I disagreed not with the idea that the Hutterites' rights were unlimited, but with where the limits were being drawn. I raised that not to patronize you, but to illustrate my point by referring to an example with which I knew from previous discussions you would be familiar. And it is hardly a personal attack to point out that someone is wrong.
I appreciate that you take an interest in legal matters. But you have to take a deep breath and think less uncharitable thoughts before you take offence at people pointing out where your views don't accord with law.
Sheesh.
Russ, I shouldn't have to tell YOU that there's a big difference between telling someone they're wrong in a given legal discussions - and telling them "I know you take a black and white view [in All such discussions]."
ReplyDeleteYou were patronizing. And, normally, you'd see that, and you'd be able to admit it.
Gotta bee in your bonnet, man, and its name ain't Marnie...
Nor did I use your examples of gender discrimination as being examples of slamming me. I just said you were wrong.
I specifically quoted the Hutterite Brethern case as being the patronizing remark.
Sheesh back at ya. Bubba.
Not MY fault your university's having serious financial issues.
Try NOT to kick the cat, eh?
Good grief. I give up.
ReplyDeleteCheifetz, move over.