Positively marriageable

Cross posted at Political Arguments.

Via SCOTUSBlog (and the Globe and Mail, and the Guardian, and the New York Times), the Supreme Court of Canada has ruled unanimously that the federal Canadian government can go ahead with its plan to make marriage available to same-sex couples.

The questions presented to the Court were:

1. whether "the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes [is] within the exclusive legislative authority of the Parliament of Canada";


2. whether "the proposal, which extends capacity to marry to persons of the same sex, [is] consistent with the Canadian Charter of Rights and Freedoms";


3. whether "the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect[s] religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs"; and


4. whether "the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, [is] consistent with the Canadian Charter of Rights and Freedoms"

more...

In essence, the Court answered the first question partly in the affirmative (with regards to the power of Parliament to extend the definition of marriage to same sex couples), and partly in the negative (with regards to its authority to prescribe rules for the solemnization of marriage, a power reserved to the Provinces). The second and third questions were answered in the affirmative as well. The fourth the Court declined to answer.

The most interesting line of the opinion concerns the meaning of sec. 91(26) of the Constitution Act of 1867, which gives "exclusive Legislative Authority of the Parliament of Canada" on a number of matters, including "marriage and divorce". The question before the Court was whether the concept of marriage itself could be redefined as part of the power of Parliament. The Court explained that it could.

Section 91(26) did not entrench the common law definition of "marriage" as it stood in 1867. The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.

With this statement, the Court embraced at once legal positivism and a wide latitude for the interpretation of legal concepts. This is a sound legal theory. In essence, the law means just what it says, no more and no less. If "marriage" is specified, no qualification—whether historical, philological, or philosophical—should be attached to the concept. After all, a legislature is always free to to be as specific as it wants when it drafts a law. Sometimes no qualification is necessary because alternative interpretations are not even contemplated (as I'm sure that gay marriage was not in the realm of possibility in 1867). But if the meaning of a word changes—as words are wont to do—a legislature is free to ammend the law to compensate for the change. If it doesn't, it acquiesces to the broadening (or narrowing) of meaning.

One worries that legal interpretation becomes simply a matter of semantics. But this is not necessarilly bad, or absent from current juridical practice. The law is notoriously conservative in its use of language, and words-of-art crowd out common usage in many legal subjects. Besides, unless one subscribes to the most debauched tenets of post-structuralism, the interpretive horizon is not limitless. Evidence—be it from legal history, linguistics or moral reasoning—may be brought to bear on the interpretation of a term, clause, or sentence.

Still, it is refreshing to see legal positivism put to good use. When placed in the hands of capable and ingenious jurists, it holds far more progressive promise than it gets credit for.