In the wake of a reference ruling by the Canadian Supreme Court, Parliament will almost certainly pass federal legislation allowing same-sex marriage. Evidently, the news that Canada has far more rational and progressive cultural policies than the United States ain’t news. This development, however, is relevant to American politics in a couple of additional respects:
- The Canadian system, in which the legislature can seek an ex ante ruling (and override judicial decisions) makes the delegation and deferral to the courts by the political branches explicit, where in the U.S. it’s informal. While this may seem like “judicial activism,” what’s actually going on is politicians using the courts to provide cover for policy outcomes they want anyway but the responsibility for which they would prefer to shift to other actors.
- This also provides a couple of useful empirical tests. First of all, we’ll be able to see whether reactionary positions of a coming social apocalypse will come through; I think we know how that’s going to come out. To take a more plausible hypothesis, we can also see whether achieving policy gains through the judiciary (legislation will be passed through, but a series of judicial decisions provided the impetus) makes political issues more “divisive” and creates a backlash against gay rights. As with abortion, what we will of course find is that Canadian public opinion will continue to see increases in support for gay right. Which tells us that gay rights in the U.S. is a divisive issue because it’s divisive, irrespective of what institution makes policy, and people who think that Christian conservatives will accept gay marriage legislation (or abortion liberalization) as long as it’s done by legislatures are deluding themselves.