In August, during what is normally a slow news period, many Canadians were shaken from their hammocks as the federal government announced that it would not appeal the Ontario Court of Appeal’s decision on same-sex marriage. Faced with repeated court rulings that upheld the equality rights of gays and lesbians, the government stated that it would recognize same-sex marriage in law. In so doing, it unleashed new rounds of debate about the pace of change in Canadian society, the relationship between church and state, the legacy of the Charter of Rights and Freedoms, and the appropriate role of courts in a liberal democracy.
While the decision to change the legal definition of marriage is contro- versial, a more wide-ranging review of public opinion reveals that the public is less divided on many of the other points just mentioned. Quite simply, both the Charter " the constitutional document informing judicial decisions " and the courts themselves, as the institutions that compel Parliament to act, enjoy considerable popular sup- port. As the survey results presented here demonstrate, whatever the pub- lic’s unease with homosexuals marrying, it is not matched by a broader unease with ”œjudicial activism.” And this, in turn, limits the appeal of the case being made by the opponents of the proposed change.
To begin with, there is no doubt that Canadian society is evenly split on the question of same-sex marriage. A Centre for Research and Information on Canada (CRIC) survey taken prior to the government’s announcement showed a very slim majority (53 per- cent) agreed that gays and lesbians should be allowed to marry, while 41 percent disagreed. Surveys taken since August have shown that this level of greement has fallen slightly: an August survey by the NFO Cfgroup found support for same-sex marriage stood at 46 percent (see figure 1), while 46 percent were opposed.
Not every sector of Canadian society, however, is split down the middle. Almost seven in ten Canadians between the ages of 18 and 34 accept same-sex marriage. Men are evenly divided, but women are more likely to approve than to disapprove. Regionally, the idea enjoys greater support in Quebec and Atlantic Canada, and less in Saskatchewan and Alberta. Religion matters: the CRIC sur- vey found that opposition to same-sex marriage stood at 55 percent among those who said that church attendance is important; it dropped to 28 percent among those who attached little impor- tance to church attendance. For many Canadians " notably many younger Canadians, and many of those with weaker ties to organized religion " same- sex marriage is a non-issue.
Second, while the population as a whole is divided on whether gays and lesbians should be allowed to marry, it is far less split on the other issues raised by the most recent court decision. Specifically, a majority is receptive to the way the courts have interpreted the Charter’s equality provisions, interpretations that are at the root of their rulings on the question of same-sex marriage. Thus, CRIC’s 2002 study of attitudes regarding the Canadian Charter of Rights and Freedoms found that two thirds (66 percent) say that the Charter should guarantee equality to gays and lesbians, just as it does to women and to ethnic and religious minorities, while 27 percent say that it should not. More generally, only 11 percent say that the Charter goes too far in protecting the rights of minority groups.
Not only do most Canadians sup- port interpretations of the Charter that guarantee equality rights to homosexuals, they have few qualms about the leading role the courts have played in ensuring that this interpretation is entrenched in law.
A first point to consider in this regard is that Canadians have more con- fidence in judges than they do in politi- cians. CRIC’s survey found that 66 percent trust judges to do the right thing, either all or most of the time, while 34 percent trust them either some of the time or hardly ever. By contrast, only 22 percent of Canadians trust politicians to do the right thing either all the time or most of the time, com- pared to 76 percent who trust them either some of the time or hardly ever.
Thus, it is perhaps not surprising that most Canadians are comfortable with the courts having the last word on important public policy issues. Seventy-one percent say that if the Supreme Court declares a law unconsti- tutional because it conflicts with the Charter, the Court " not Parliament " should have the final say. Only 24 per- cent would give Parliament the final say. The proportion that would give the final say to the Supreme Court is larger now than in previous years. This is an indication that Canadians have become increasingly comfortable with the role that the courts have assumed since the Charter was adopted in 1982.
But they are not prepared to let the courts have the final say on every issue (see Figure 2). For instance, in the con- text of the concerns about national security raised after the September 11 2001 terrorist attacks, 55 percent of respondents to CRIC’s Charter survey indicated that they would support the use of the notwithstanding clause, if the Supreme Court ruled that the govern- ment’s new anti-terrorist law violated some civil rights. What is interesting in the context of the current debate about same-sex marriage, however, is that no such support was found for invoking Section 33 to overrule a Court decision giving gays and lesbians the right to marry. In fact, two-thirds of Canadians said they would oppose the use of the notwithstanding clause in this circum- stance. And only a slim majority (51 percent) of those opposed to same-sex marriage supported use of the notwith- standing clause to overrule a Court deci- sion allowing such marriages. (A new CRIC survey currently underway will show if opinions have shifted since the 2002 survey was conducted.)
It is worth noting that Canadians, as a whole, are becoming more accepting of homosexuality. Ten years ago, a major- ity disapproved of homosexuality, and only about a third approved. More recently, disapproval has fallen to 37 per- cent, while approval has risen to 44 per- cent (these results are from Environics Focus Canada surveys, conducted in 2001 and before, made available through the Canadian Opinion Research Archive at Queen’s University). The current level of acceptance is highlighted by results from the CRIC-Globe and Mail survey on the new Canada, conducted this spring. It showed that 64 percent of Canadians would be comfortable if a close member of their family said that he or she were gay (see Figure 3).
Finally, considering the differing policy positions staked out by the Canadian and US governments on same-sex marriage, it is interesting to note that Canadians are more accepting of homosexuality than are Americans (although a little less accepting than are Western Europeans). The 2002 Global Attitudes survey conducted by The Pew Research Center for the People and the Press found that 69 percent in this coun- try agree that homosexuality is a way of life that should be accepted by society, compared with 51 percent in the US.
This review of public opinion helps to make clear why the federal govern- ment feels it can safely embrace the tenet of the Ontario court decision. Most Canadians are accepting of homo- sexuality. Most are at ease with the impact that the Charter has had on our society, and support constitutionally protected equality rights for gays and lesbians. Judges are more trusted than politicians. Most Canadians, when faced with a dispute between the courts and Parliament on rights issues, are willing to give the final say to the courts. While the public as a whole may be split on whether the definition of marriage should be changed, it is less divided on whether the courts should be making binding interpretations of the Charter that protect the rights of minority groups, such as homosexuals. In this context, and in light of growing toler- ance within Canadian society coupled with the laissez-faire attitude prevalent among younger Canadians, opponents of same-sex marriage will have a diffi- cult time carrying the debate.