It has been interesting over the last week to watch as the American Supreme Court has taken on two cases that deal with issues concerning same-sex marriage. The role of the Supreme Court is to ensure that a state does not extend its power beyond the limits of constitutional rights and freedoms. The Supreme Court sits as an arbiter between the state and its citizens to make sure that governments do not overstep their authority.
Just for information purposes, the American Supreme Court has nine justices. They are appointed by the President and they undergo a confirmation process in the Senate. In Canada, as the Parliamentary website explains, there are also nine justices, three of whom must be from Quebec. This is to ensure that the civil law code that exists in Quebec is properly administered at the Supreme Court level. Moreover, there is usually provincial representation as part of the selection process. The Governor General appoints Supreme Court justices on the advice of the Prime Minister.
Watching the U.S. debate from a distance has been fascinating because it has highlighted a number of fundamental questions about the role of the Court and the Court has started to look like a microcosm of U.S. politics: divided by liberal and conservative views; plagued with the issues of declining trust; and a perennial question about whether the Court needs to assert social change before some individuals, groups or states are ready for that particular change to occur "democratically" (that is to say through legislatures). This last issue seems to be at the heart of the case regarding DOMA, or the Defense of Marriage Act.
First, it should be noted that the real issues that are being debated by the Supreme Court appear to be lost in the media frenzy. The U.S. Court is not deciding whether or not to legalize same-sex marriage. The Court is actually being asked whether or not, in the case of the Defense of Marriage Act (DOMA), certain citizens are receiving unequal treatment as a result of a particular definition of marriage. DOMA restricts individuals from receiving federal benefits if they are a legally married same-sex couple. Curiously, the Obama Administration has already said that DOMA is unconstitutional. Yet, the Administration has continued to uphold the rules that restrict same-sex married couples from receiving benefits. The Administration has said that it won't defend DOMA in Court but rather the Administration will leave it up to the Court to strike down the law. So, if the Administration believes that DOMA is unconstitutional why is it leaving the question up to the Supreme Court? The answer, I would argue, is that this is a politically divisive issue and it is easier for an Administration to let the Court decide.
For those of us who remember, the Canadian government also tried to throw the ball to the Supreme Court in a reference case in 2003. In an article entitled, "Canada: The Constitution and same-sex marriage" written by Canada's foremost constitutional scholar, Peter W. Hogg explains that the Supreme Court played a critical role in the advancement of same-sex marriage because of a series of decisions that arose from other Charter litigation that looked at issues of equality including sexual orientation. But, when the government sent a reference case to the Supreme Court specifically about same-sex marriage the Court stopped short of answering the question, "was the opposite-sex requirement for marriage...consistent with the Canadian Charter of Rights and Freedoms." Hogg posits that, "The Court's reasoning [was] neither clear nor persuasive, but I think the main reason, albeit unarticulated, was a desire to make Parliament play a role in the legalization of same-sex marriage." And, of course, it did. As Hogg reminds us, same-sex marriage was legalized in Canada, through Parliamentary debate and by a majority free-vote, in 2005.
The key point here is that sometimes the Supreme Court has to walk a fine line between acting as an arbiter of disputes among citizens and governments and acting as a legislator deciding to override legislative authority to advance particular liberties. It is a critical part of democracy and it deserves our careful attention. As individuals on both sides of the debate gather outside the US Supreme Court we are seeing the kind of tightrope walk the Court plays between activism and arbiter.
