Democracy and same sex marriage

This week, Members of Parliament voted to maintain the status quo on same sex marriage.

Parliament voted to legalize same sex marriage last June, when the Liberals were in power. The Conservative Party had promised to hold another vote on the issue if and when they were elected. Now they have fulfilled that promise, and same sex marriage is still lawful.

I report on the vote over on Bill’s blog. Here, I wish to add a few thoughts on democracy and same sex marriage.

The default position in a democracy is surely Live and let live. For example, I am a Christian; perhaps you are Wiccan. I don’t believe in your religion, but I let you worship as you see fit and you do the same for me. Live and let live.

From this perspective, gays and lesbians should be entitled to equal treatment under the law:  i.e., if the state is going to recognize heterosexual marriages in law, it must do likewise for same sex marriages. Even “civil unions” don’t appear to meet the standard that must apply in a democracy, because they still distinguish between homosexual and heterosexual couples without rational justification.

“Live and let live” is the default position, but there are exceptions to it. Here I would refer to Hippocrates‘ maxim, First, do no harm. We should live and let live except in cases where an individual’s behaviour will harm others.

In sum, the onus falls on the opponents of same sex marriage to demonstrate the harm in it. That’s how democracy works.

The question becomes, Does same sex marriage constitute a threat to heterosexual marriage? Maybe there’s a case to be made, but so far opponents of same sex marriage have failed utterly to make it.

This is an instance where I am proud to be Canadian. Americans talk a great deal about freedom as the core value of their society. In practice, however, many Americans would force others to conform to their norms. Canadians arguably demonstrate a deeper commitment to freedom — to the default democratic principle, Live and let live.

Our Prime Minister says the debate over same sex marriage is now closed. What a great country!

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18 Comments (+add yours?)

  1. Michael (a.k.a. Snaars)
    Dec 09, 2006 @ 19:13:40

    Unfortunately, in this period of U.S. history, on this issue, we are suffering from the tyranny of the majority.

    Reply

  2. David
    Dec 09, 2006 @ 22:28:35

    How do I get to be Canadian? 🙂

    Reply

  3. Stephen
    Dec 10, 2006 @ 10:28:11

    • Snaars:
    I hesitated to criticize our good neighbours in the USA, because I know you’re not really very different from us. (Compared to someone from, say, Zimbabwe.)

    The Bush administration is partly responsible. But I linked to Dennis Prager. There’s an element of American society that is radically right wing … from a Canadian perspective, anyway.

    Bush plays to that fringe group, which is why he has damaged the USA’s reputation internationally. But that fringe group does exist, and we don’t have a parallel element of Canadian society. Or if they exist, they stay well out of sight because they’re such a tiny minority.

    • David:
    A lot of Americans have seriously considered it. After Bush was reelected, applications to our immigration board shot up significantly.

    I suppose people will now wait it out to see what happens in the next election, given the encouraging mid-term election results.

    Reply

  4. unitedcats
    Dec 11, 2006 @ 13:51:09

    America is a country of conformist prudes under a thin veneer of democratic window dressing. My studies of history indicate it wasn’t always this bad, but decades of increasingly sophisticated propganda and corporate advertising combined with a failed educational system have brought us to this sad era in history where American’s think that rights are protected…by denyng other people their rights. I expect slavery to be reinstated soon, though this time it will be Muslims that are enslaved. Jesus wept.

    JMO…from a Canadian born American citizen. —Doug

    Reply

  5. Stephen
    Dec 11, 2006 @ 14:30:00

    Don’t be afraid to express an opinion now, Doug!

    It’s certainly a sad commentary on democracy: elected leaders have learned to be more sophisticated about manipulating masses of voters, thereby creating a zone within which they can pursue self-interest, instead of trying to act for the good of the country.

    I’m not sure how germane it is to the discussion about same sex marriage. But it’s an important critique of democracy.

    Reply

  6. aaron
    Dec 11, 2006 @ 20:20:14

    Stephen,
    I feel very happy for you (and jealous), that you live in a country that could allow such a reasonable outcome. That being said, I can’t agree that the default position in a democracy is live and let live, so long as no harm is perpetuated on others. There’s a good argument that it should be, but that doesn’t change the fact that for the U.S., and indeed, I would think for most if not all democracies, the default position is that majority rules — this is no surprise, given the Democracy means “rule by the people.” Within the U.S., and again I would expect generally among democracies, the exception to that default is when the majority’s will would conflict with the constitution, which itself can be changed by a super-majority. So, for example, if the great majority of Canadians had opposed same-sex majority, I presume they could change the Canadian constitution to override the Court of Appeal’s decision, and thereby prohibit it, regardless whether it violated a “live and let live” approach.

    Reply

  7. Stephen
    Dec 11, 2006 @ 22:10:27

    • Aaron:
    You have certainly captured one of the dangers of democracy. The danger has been summed up in the phrase, “the tyranny of the majority”: i.e., where the majority imposes its will on a minority, thereby denying them the opportunity to exercise their freedom.

    In practice, democracies are (supposed to be) aware of this danger and take steps to guard against it. You rightly point to the constitution, which is the mechanism by which individual rights are safeguarded, so that the individual is not forced to conform to the will of the majority.

    Thus I stand by my assertion: the default position of a democracy is, Live and let live. Democracies are (supposed to be) designed to ensure that that principle is respected, even where the majority may be of a different view than that of the individual.

    Reply

  8. aaron
    Dec 11, 2006 @ 22:48:42

    Stephen, I have to admit that I’m not sure of the basis for your assertion that democracies are designed to ensure that the principle of live and let live is respected. Take a look at Israel as an example — it’s a democracy, but with its religious basis, it doesn’t adhere to a “live and let live” approach for its citizenry.

    Also, as I noted in my post, constitutions are not inflexible, and can be changed with a sufficient majority. Constitutional amendments in the United States have been suggested both for defining marriage as between a man and a woman, and for banning the burning of the American flag. Hopefully neither of these amendments will pass, but the point is that the constitution isn’t set in stone, and it is possible to change the constitution in a manner that violates a principle of “live and let live.” Even though I wouldn’t like the result, I can’t say that such amendments would violate a key characteristic of a democracy.

    Reply

  9. Stephen
    Dec 12, 2006 @ 10:19:24

    • Aaron:
    You’re a lawyer, aren’t you? So I should defer to your understanding of constitutional law!

    It is certainly true that constitutions can be amended by a majority vote in a legislature, although the process is more onerous than passing ordinary legislation. There’s a reason for that!

    In Canada, we even have a notwithstanding clause, whereby a legislature, either federal or provincial, can override certain provisions of the Canadian Charter of Rights and Freedoms for up to five years. (And the legislature can continue overriding the provision by five year intervals indefinitely.)

    I mention it because I want to demonstrate that I am not ignorant of constitutional law. However, one should recognize that such mechanisms are intended to be used only in extraordinary circumstances. Imagine, for example, that a court declared child pornography lawful under the rubric of freedom of expression.

    Parliament could act to set aside the court’s ruling in such an eventuality. But this would not be business as usual: it would be regarded as an extraordinary, grave intervention. It would, in fact, be seen as potentially harmful, justifiable only insofar as it would prevent a greater social evil.

    When I use the expression, Live and let live, I am aware that this is not legal language. I’m expressing myself in the vernacular.

    Nonetheless, I regard it as a legal principle. Democracies were introduced to escape tyranny. As far back as de Tocqueville, majority rule was recognized as another potential source of tyranny.

    I’m trying not to be rude by insulting American democracy, but you have a real problem there. (And I think you’re aware that there’s a problem, so I hope you won’t be offended.)

    The Parliament of Canada could use the notwithstanding clause to make same sex marriage unlawful in the face of the numerous court rulings that opened the door to it. Tellingly, there is no political will to do such a thing. Our most right wing party, the Conservatives, officially oppose same sex marriage. Yet Stephen Harper has promised never to invoke the notwithstanding clause. He knows it would be regarded as an assault on individual rights and freedoms, and it would make the Conservatives unelectable.

    What I’m saying (and I’m getting blunt now) is that America has lost track of how democracy is supposed to function. When Dubya moved to amend the Constitution to ban same sex marriages, he was behaving in a profoundly undemocratic fashion. To give another example, how about those states where it is illegal to sell dildos.

    As Pierre Trudeau put it back in 1968, “the state has no business in the bedrooms of the nation”.

    As a lawyer, you’ll appreciate that I’m alluding to that zone of private conduct in which the state is not supposed to interfere. To do so may be good politics in the American south; it is nonetheless profoundly undemocratic.

    Reply

  10. aaron
    Dec 12, 2006 @ 11:34:00

    Maybe we just have to disagree here, but I think you’re creating a new requirement for “democracy” that isn’t part of its definition. I’m glad there’s no political will in Canada to prevent same-sex marriage, and Canadians should pat themselves on the back for being so respectful of others. Nevertheless, all that means is that the majority is adhering to the principle of live and let live, which we both agree is a good thing (though it’s fair to mention that this wasn’t the case before the Court of Appeals decision). The fact that on the subject of gay marriage Canada adheres to this principle and the U.S. doesn’t in no way suggests that Canada is correctly practicing democracy and the U.S. isn’t — democracy is supposed to reflect the will of the people, and in both countries that’s the case. Had Harper had 90% support for eliminating gay marriage, I can’t see how a change to the Canadian constitution to make it illegal would have been anti-democratic. Democracy is policy-neutral — it can be “live and let live,” but it doesn’t have to be, and if it that principle doesn’t reflect the will of the people, it won’t be.

    I also disagree with your suggestion that the tyranny of the majority is somehow antithetical to a democracy — it may be one of the negatives of a democracy, but it’s inherently a part of democracy. One can take steps to reduce (although not prevent) its effect, such as adopt a constitution to protect fundamental rights, but failure to do so does not render a government undemocratic.

    FWIW, I agree that the U.S. has a number of problems, IMO many of which are due to the fact that it was the first modern democracy, and we need a new constitutional convention to reflect the fact that our Constitution is over 200 years old. I also don’t like the rise of a large group that seems interested in imposing its religious convictions on the rest of us. But even though I don’t like most of the outcome of how the U.S. is resolving the issue of gay marriage (there are pockets of the country that are allowing it), I don’t see the process as somehow violative of democracy.

    Reply

  11. Stephen
    Dec 12, 2006 @ 11:42:21

    • Aaron:
    You seem to be arguing that individual freedom is not a core element of democracy. Is that your position?

    How about my link to Dennis Prager, who asserts that Congressmen should not be permitted to swear on a Koran instead of a Bible because such an act would be antithetical to (evidently monolithic) American culture? Is that democratic?

    How about my other example, of states where the sale of dildos is unlawful? Is that democratic?

    I realize that a series of pointed questions will read as if I’m getting hostile. Let me say, for the record, that I’m not writing in anger. I am just very surprised at your position, that protecting minority rights is not a core element of democracy.

    Consider this link: among the principles of democracy, “majority rule, minority rights“. That’s my position, and I honestly don’t understand on what grounds you would disagree.

    Reply

  12. aaron
    Dec 12, 2006 @ 12:14:34

    Yes, that’s my position. http://en.wikipedia.org/wiki/Democracy — you seem to be treating your definition of a type of liberal democracy as synonymous with democracy, and I submit that the definition of democracy is much broader.

    Prager is an ass, and I respect his right to express his asininity. I oppose what he suggests for several reasons, not the least of which is that I believe it is unconstitutional. But if 99% of Americans wanted to ban the use of a Koran in a swearing in ceremony, and the constitution was amended to prohibit it, I can’t see that it would be undemocratic. Same on the dildos. Same on gay marriage in Canada before the Court of Appeals decision (are you saying that Canada was undemocratic before then?).

    My opposition to these are because I think they’re wrong, not because I think they’re undemocratic. See my previous post’s discussion on tyranny of the majority.

    Reply

  13. unitedcats
    Dec 12, 2006 @ 13:32:42

    So if American’s changed the Constitution to reinstate slavery, would it still be a democracy? Under the “majority rules” definition of democracy I am seeing espoused above, anything could happen in a democracy no matter how heinous as long as it was done through proper democratic channels. A definition that broad doesn’t seem terribly helpful, and it certainly isn’t used in that sense in the vernacular, no matter how technically accurate it may be. Personally, I think the word “democracy” has been so bandied about and misapplied that it’s almost meaningless now. Certainly people need to define what they mean when they use the term. And IMHO, Canada NOR the US is a democracy, they are both Constitutional Republics. 🙂 JMO —Doug

    Reply

  14. aaron
    Dec 12, 2006 @ 13:46:55

    Unitedcats — the slavery issue brings up an interesting point. Do you believe that the U.S. wasn’t a democracy (or constitutional republic) when slavery was legal?

    Reply

  15. Stephen
    Dec 12, 2006 @ 13:48:04

    • Aaron:
    I’m prepared to concede your distinction between democracy, broadly speaking, and liberal democracy. The link you provided has this to say about liberal democracy:

    “Liberal democracy is a representative democracy (with free and fair elections) along with the protection of minorities, the rule of law, a separation of powers, and protection of liberties (thus the name liberal) of speech, assembly, religion, and property. [13] [14] Conversely, an illiberal democracy is one where the protections that form a liberal democracy are either nonexistent, or not enforced. The experience in some post-Soviet states drew attention to the phenomenon, although it is not of recent origin.”

    Are you saying, then, that the USA is an illiberal democracy akin to Putin’s Russia? That the rule of law isn’t important, any more than the protection of minorities?

    I think you’re winning the semantic battle, because the USA would still technically be a democracy if people voted to reinstate slavery. But you’re also ducking the thrust of my argument: that the USA is not a shining example of liberal democracy, which is how the term is commonly used, and is really the point I was trying to make.

    Reply

  16. aaron
    Dec 12, 2006 @ 14:32:01

    Stephen, as you noted earlier, I’m a lawyer — should I concern myself with more than the semantic battle? 😉

    Seriously, although I’ve gotten sidetracked at times, my main concern has been your application of the “live and let live” principle as being a necessary component of democracy. I don’t usually equate liberal democracy with democracy, and maybe that’s because I read of the efforts being made in Iraq, and hear democracy used in that context — I know that should they ever achieve a lasting democratic government, it might be fair, and it might protect certain fundamental liberties, but it won’t be anything resembling a liberal democracy as is in place in the US or Canada. Similarly, as my post to Unitedcats indicates, pre-Civil War America (heck, pre-women’s right to vote America) would fall short of the liberal democracy standard as we’re using it now, but I still think of it as a democracy.

    Regardless, the “live and let live” principle is not a necessary component of democracy in general, or of a liberal democracy. As you can guess, I don’t think of the US as an illiberal democracy as used in the Wikipedia definition, but neither do I think that “the protection of liberties” phrase that defines a liberal democracy is governed by “live and let live.” The U.S. has chosen to protect certain liberties, and Canada has chosen similar, but different ones. The “fundamental” ones that are noted in that definition (speech, assembly, religion, and property) are generally protected by both systems. Where we appear to disagree is whether any others are necessary in a liberal democracy, as opposed to desirable.

    For example, is the right to marry a consenting adult of the opposite sex necessary? What about the right to marry a consenting adult of the same sex? What about the right to marry as many consenting adults of either sex at the same time? All of them can fit within a “live and let live” paradigm, but while the US and Canada are fine with #1 and split on #2, neither appear ok with #3. I don’t think that means that either one of them fall short of democracy, liberal or otherwise.

    Reply

  17. unitedcats
    Dec 12, 2006 @ 15:34:40

    Actually, I would say that the USA was a democracy before the emanicipation proclamation. it was just a badly flawed democracy, as is any democracy that has people who are unjustly disenfranchised. This debate highlights my thinking, whch is that the drive to spread “democracy” through the world is at best misguided and at worst cynically deceptive. People by and large don’t give a rat’s behind about “democracy,” what they want is a government that basically leaves them alone and respects their rights. That we don’t even have a word for that aside from such vague terms as “liberal democracy” shows how far we still have to go on this front. In many senses “democracy” has replaced the divine right of the King as a justification for rulership, we can all list countries that are dictatorships in all but name, yet they still have their citizens dutifully line up and stuff papers in a box. Interesting comments, making me think. —Doug

    Reply

  18. Stephen
    Dec 12, 2006 @ 17:33:32

    Re polygamy:
    That will be the next battleground in Canada, likely enough. Someone will initiate a court challenge that his two (or more) wives should be recognized in law. And what will the court find? — it remains to be seen.

    The argument against polygamy will come down to whether it is a harmful practice; in particular, harmful to the women who are party to the marriage.

    I freely acknowledge that democracies exist along a continuum, from illiberal to liberal. An illiberal democracy may be preferable to a dictatorship; but maybe not, if there’s such a thing as a benevolent dictatorship.

    I would like to hope that democracies proceed down a path from relatively illiberal to relatively liberal, which is the path Canada has taken: for example, giving women the vote and then Aboriginals (not until 1960!).

    What concerns me about the USA at the present time is the appearance of regression; or at least increased influence of fundamentalist Christians over the government, which militates against further liberalization. Using the big stick of constitutional amendment to block the extension of equal treatment under the law to same sex couples — that’s seriously illiberal.

    In fact, I still don’t think undemocratic is too strong a word to use for it. Using Putin’s Russia or Iraq as your basis of comparison doesn’t persuade me that such a constitutional amendment would be consistent with democratic ideals!

    I continue to stand by the link I provided above: democracy embraces both majority rule and the protection of minority rights. A definition of democracy that focusses exclusively on the former misses the mark.

    Reply

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