UNIVERSITY OF CALGARY
Legislative vs. Judicial Checks and Balances: Rights Policy in Canada and Australia
by
Andrew Craig Banfield
A THESIS
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DEPARTMENT OF POLITICAL SCIENCE
CALGARY, ALBERTA
SEPTEMBER 2010
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1+1 Canada Abstract
This study contributes comparative evidence to a longstanding debate about what kinds of institutional checks and balances best promote rights enhancing policy moderation. One side in the debate sees moderation flowing from a "dialogue" between dispassionate courts exercising "strong-form" review and impassioned (hence extremist) legislatures. The other side, believing that courtroom "rights talk" fans the flames of extremist polarization, stresses the moderating influence of other (generally more "political") checks and balances. In this second view, courts can indeed contribute to a moderating inter-branch "dialogue," but are more apt to have this beneficial influence when they exercise some kind of "weak-form" review.
Canada (with its 1982 Charter of Rights and Freedoms) and Australia (with its ongoing rejection of a constitutional bill of rights) are two otherwise similar regimes that have positioned themselves on opposite sides - indeed at opposite ends - of this debate. As such, they present obvious and attractive candidates for comparative analysis. Our question thus concerns the fate of policy moderation in these two countries.
That question is addressed through case studies focusing on three so-called "two-sided" moral issues: euthanasia, gay rights, and prisoner voting. While middle ground positions typically exist on such issues, they are often overwhelmed by the polar extremes. Moreover, these types of issues are precisely the kinds of issues most likely to end up in court, especially under rights documents of various kinds. They thus provide the best test of competing claims about the moderating or polarizing influence of judicial power or legislative power.
The three case studies provide some, but not unqualified, support for the "polarization" hypothesis. At the same time, they display the particular advantages - greater detail, texture, and nuance - of the case-study approach. This study brings theoretical refinement by situating each case study in a broad comparative review of how the same policy issue has fared in the liberal democratic world more generally. The resulting evidence underlines the relevance of the distinction between strong-form and weak-form judicial review and need to more systematically exploit that distinction in assessing the moderating or polarizing tendencies of judicialized "rights talk."
ii Preface
Parts of Chapters 2, 4, and 5 are previously published by Andrew C. Banfield and Rainer Knopff as "Legislative vs. Judicial Checks and Balances: Comparing Rights Policies Across Regimes" in The Australian Journal of Political Science 44:1 (March 2009): 13- 27. This material has been re-worked for incorporation in the present study. For the earlier article, both authors contributed to the conceptual framework. Andrew Banfield was the lead and corresponding author. Rainer Knopff added to some sections and helped revise others.
iii Acknowledgements
For those of you that know me, you know I'm not one for speeches. But I would be remiss if I did not thank a few people.
I will be forever indebted to my supervisor, Rainer Knopff. Over the last half decade, I have come to know him as supervisor, advisor, occasional fishing companion, mentor, and friend. With endless patience, which I'm sure I tested, he taught me the value of logographic necessity, and what true scholarship looks like. I can only hope to someday repay all he's done for me.
Lisa Young has had to endure more than most and deserves special thanks for serving as my all-purpose career counsellor, adviser, and on more than one occasion, a voice of reason. Anthony Sayers' unbridled enthusiasm for this project, and others we've worked on together, was a constant reminder of why I chose this profession. Thanks to you both.
I was surrounded by a number of friends who made this project better. Gemma Collins, David Coletto, Jared Wesley, Mike Zekulin made those long days of grad school bearable, and were a constant source of insight. Greg Flynn, Dave Snow, and Mark Harding are invaluable friends who made my thinking about law and courts better. A number of talented political scientists helped clarify my cloudy thinking: Janet Ajzenstat, Rhonda Evans Case, Tom Flanagan, and Ted Morton. The Australian components of this project benefited innumerably from conversations with: Brian Galligan, Emma Larking, and John Uhr.
The University of Calgary has become, and will always be, my academic home. As such, a special thanks is due to the entire faculty and staff; especially Ella Wensel and Judi Powell, who worked tirelessly on my behalf without nearly enough credit. I would also like to acknowledge the generous financial support from the University, the Institute for Advanced Policy Research, and the Social Science and Humanities Research Council of Canada.
Finally, I would like to thank my entire family for enduring what has been a long academic journey. My Mom, Dad, and brother Adam, were always supportive - without fail. Last, but certainly not least, I thank my wife, Julie. Your constant support and encouragement kept me going when I was ready to stop. You endured the longest, and grumpiest(!) hours of this project. For putting up with me, you deserve a medal.
iv Dedication
For Dad and Mom Table of Contents
Abstract ii Preface iii Acknowledgements iv Dedication v Table of Contents vi List of Figures and Tables viii
CHAPTER 1: INTRODUCTION 1
CHAPTER 2: INSTITUTIONAL ARRANGEMENTS TO PROTECT RIGHTS 9 The United States: Federalists vs. Anti-Federalists 11 Canada and Australia 16 Canada vs. Australia 25 The Role of the Courts in the Absence of Constitutional Bills of Rights 31 Conclusion 49
CHAPTER 3: METHODOLOGY 51 Issue Selection 52 Operationalizing Moderation 66
CHAPTER 4: PRISONER VOTING 72 Prisoner Voting as Moral Politics 73 Prisoner Voting: The Policy Continuum 76 The Moderate Middle in Comparative Context 79 Comparative Policies 79 Judicial Opinion 87 Public Opinion 92 The Shifting Middle: Prisoner Voting Rights in Australia 95 Prisoner Voting in Canada 107 Conclusion 114
CHAPTER 5: SAME-SEX MARRIAGE 118 Same-Sex Marriage as Moral Politics 118 Same-Sex Marriage: The Policy Continuum 125 The Moderate Middle in Comparative Context 126 Comparative Policies 127 Judicial Opinion 134 Public Opinion 147 Same-Sex Marriage in Australia 156 Same-Sex Marriage in Canada 170 Conclusion 182
vi CHAPTER 6: EUTHANASIA 185 Euthanasia as Moral Politics 186 Euthanasia: the Policy Continuum 188 Moderate Middle in Comparative Context 193 Comparative Public Policy 195 Judicial Opinion 207 Public Opinion 217 Australia 222 Canada 234 Conclusion 244
CHAPTER 7: CONCLUSION - MODERATION RECONSIDERED 247
REFERENCES 257
vii List of Figures and Tables
Figure 1: Mainstream and Radical Politics 61
Table 1: Prisoner Voting Policy Alternatives 77
Table 2: Same-Sex Marriage Policy Alternatives 125
Table 3: Euthanasia by Type/Action 189
viii CHAPTER 1: INTRODUCTION
The question is simple enough: what happens when our normal, middle-of-the- road, split-the-difference, daily political interactions run headlong into an issue on which many people strongly resist "splitting the difference"? Issues such as abortion and capital punishment are longstanding examples of this type of issue; more recently, euthanasia, same-sex marriage, prisoner voting, and polygamy fit the bill. Such issues of "morality politics" have loomed large on the policy agenda of most liberal democracies for some time now, generally leading to heated and highly divisive political confrontations. As evidenced by countless newspaper editorials, television reports, and water cooler discussions, these issues tend to arouse choruses of angry "thou shall nots!", moral grandstanding, and righteous finger-pointing.
The rhetoric of rights - what Mary Ann Glendon calls "rights talk" - is prominent in the political battles about these issues.1 The institutional levers available to this rhetoric vary with the institutional structure of various jurisdictions, especially with the presence or absence of a bill of rights (and on the kind of bill, where one exists). This study asks how such different institutional arrangements affect the character and outcomes of political struggle about morality issues. It addresses this question by comparing the treatment of selected morality issues in Canada, with its Charter of Rights and Freedoms and weak bicameralism, and Australia, with its stronger bicameralism and no bill of rights.
1 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).
1 Given the prominence of "rights talk" in morality politics, the study could be framed in terms of comparative rights protections. To put the issue this way, however, necessarily requires definitional agreement on the nature and content of the rights being compared. Without clear definitions, one cannot possibly know which regime comes closest to full protection of a right. Unfortunately, the nature and content of rights
(particularly those rights engaged in this study) are highly controversial, and the long history of disagreement between contending schools seems unlikely to end anytime soon.
The problem is compounded by the inevitable conflicts between rights, however they are defined. Do we conclude that rights are best protected by prohibiting hateful expression in the name of equality or protecting inegalitarian expression; by underlining a woman's right to choose or protecting a fetus's right to life; by exempting religious or indigenous groups from otherwise valid laws or applying those laws equally to all?
Such problems can be minimized (though others arise) if we ask a somewhat different question, one that emerges from the intransigent, uncompromising nature of political battles waged about the moral issues under consideration. We might, in short, assume that the best rights protecting regime is one that most consistently produces
"moderate" policy outcomes, thus at least avoiding rights threatening extremism. The comparative question then becomes which set of institutional arrangement - Canada's or
Australia's - is more apt to find a way through intransigent rhetoric to moderate compromise. This is the approach I take in this study. In doing so, I am in fact adopting a longstanding perspective on institutional design, dating back to the foundation of liberal
2 (which is to say rights protecting) thought and accounting for its emphasis on institutional checks and balances.
There is an equally longstanding controversy, however, about the most appropriate kinds of moderating checks and balances. One view, dating back to the
American Constitution as originally conceived by some its most influential founders, holds that rights-protecting moderation is best achieved through checks and balances among the branches of government, with the judiciary certainly playing an important role in the inter-institutional tug of war, but without its being armed with a constitutionally entrenched bill of rights.2 The alternative view, dating to the first ten amendments of the
U.S. Constitution, holds that the desired moderation requires the additional check of a constitutionally entrenched bill of rights. Bill-of-rights proponents insist that entrenched rights enhance the calming effect dispassionate courts can have in their inter-institutional dialogue with the passionate extremism of legislatures.3 Bill-of-rights sceptics respond that the judicial enforcement of entrenched rights actually promotes passionate policy extremes at the cost of moderate legislative compromise.4 This debate establishes the contextual framework for this study; it is set out at length in chapter two.
This institutional debate cries out for more detailed comparative study than it has thus far received. Canada and Australia, as two otherwise similar parliamentary regimes that have placed themselves on opposite sides of this debate - one with a constitutional
2 Alexander Hamilton et al., The Federalist Papers (New York: Bantam Dell, [1788] 2003). 3 Peter W. Hogg and Allison A. Bushell, "Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)," Osgoode Hall Law Journal 35, no. 1 (1997). Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001). 4 Glendon, Rights Talk: The Impoverishment of Political Discourse.
3 bill of rights and the other without - provide an especially promising avenue for
comparison. Other, intermediate comparisons are also needed - most notably, among
liberal democracies with bills of rights but with different legislative and electoral
institutions, as well as among regimes with different kinds of bills of rights - but the
comparison of similar regimes with and without constitutional bills of rights is particularly important because non-constitutional rights protection is generally avoided by public law scholars. This study thus contributes to the debate a comparison of selected rights policies in Canada and Australia.
It is worth noting that Canada and Australia are not just on opposite sides but, for the most part, on opposite ends of the rights protection debate. As mentioned, bills of rights come in different forms. A common distinction is between bills of rights that
sustain "strong-form judicial review" and those that support only "weak-form judicial review."5 Strong-form judicial review occurs when a constitutionally entrenched bill of rights enables high courts to strike down or invalidate legislation in a way that can be overridden only by constitutional amendment or by a subsequent judicial change of mind.
The United States Bill of Rights is the archetypical example.6 Weak-form judicial review occurs when a bill of rights allows courts only to interpret legislation in conformity with its terms when such interpretation is possible. When it is impossible to interpret a
5 Mark Tushnet, "New Forms of Judicial Review and the Persistence of Rights and Democracy-Based Worries," Wake Forest Law Review 38 (2003); , "Alternative Forms of Judicial Reivew," Michigan Law Review 101 (2002); , "Forms of Judicial Review as Expression of Constitutional Patriotism," Law and Philosophy 22, no. 3/4 July (2003); , Weak Courts, Strong Rights (Princeton NJ: Princeton University Press, 2008); , "Dialogic Judicial Review," Arkansa Law Review 61 (2009). 6 Tushnet, "New Forms of Judicial Review and the Persistence of Rights and Democracy-Based Worries." 814.
4 conflicting statute to bring it into conformity with the bill of rights, judges must
nevertheless apply the statute; they cannot strike it down. In some cases - e.g., Britain - judges can issue a "declaration of incompatibility" between the bill of rights and the
statute they must nevertheless apply. In other cases - e.g., New Zealand - the degree to
which such judicial declarations of incompatibility are possible has been a matter of
debate.7
Weak-form judicial review may also exist when judges can strike down
legislation but when such judgments can be overridden by ordinary legislation rather than
by constitutional amendment.8 In Canada, for example, section 33 of the Charter of
Rights and Freedoms allows legislatures to pass legislation that conflicts with some parts
of the Charter (ss. 2 and 7-15) for renewable five-year periods. Because of section 33,
some commentators have included Canada in the category of weak-form judicial review
as far as relevant Charter jurisprudence is concerned.9 As the Canadian experience has unfolded, however, it has become clear that section 33 has become politically very
difficult, if not impossible, to use as a way of overriding a Supreme Court decision. Thus, many observers have come to include Canada within the category of strong-form judicial
7 Janet L. Hiebert, "Rights-Vetting in New Zealand and Canada: Similar Idea, Different Outcomes," New Zealand Journal of public and International Law 3 (2005); , "Parliamentary Bills of Rights: An Alternative Model?," Modern Law Review 69, no. 1 (2006). Tushnet, "New Forms of Judicial Review and the Persistence of Rights and Democracy-Based Worries," 814. 8 Tushnet, "New Forms of Judicial Review and the Persistence of Rights and Democracy-Based Worries." 821. 9 Peter W. Hogg, Allison A. Bushell and Wade K. Wright, "Charter Dialogue Revisted - or 'Much Ado About Metaphors'," Osgoode Hall Law Journal 45, no. 1-66 (2007): esp pages: 26,29, 53.
5 review. At the very least, it comes quite close to that end of the strong-form, weak-form continuum.
Australia, like Canada, has strong-form judicial review with respect to federalism, but, with two recent sub-national exceptions, is at the other end of the continuum with respect to rights jurisprudence (though the so-called "implied bill of rights" - discussed at length in the next chapter - might change that assessment somewhat). The two exceptions are the state of Victoria and the Australian Capital Territory (ACT), which have both recently adopted weak-form bills of rights.11 Perhaps these developments portend a more thorough evolution of Australia in the direction of a bill-of-rights model, but that evolution has not yet occurred in any major way. Indeed, at the national level, attempts to move towards more strongly legalized rights have been regularly defeated over the last
40 years.12 The most recent example occurred in 2010, when both major parties in the
Commonwealth parliament rejected a proposed national human rights statute, applicable only in Commonwealth areas of jurisdiction, and allowing only for weak-form declarations of incompatibility by the High Court.13 In short, Australian exceptionalism
Grant Huscroft, "Rationalizing Judicial Power: The Mischief of Dialogue Theory," in Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms, ed. James B. Kelly, and Christopher P. Manfredi (Vancouver: UBC Press, 2009), 57. 11 The Australian Capital Territory adopted the Human Rights Act -2004, and Victoria passed the Victorian Charter of Human Rights in 2006. For additional discussion of these bills of rights see: Hiebert, "Parliamentary Bills of Rights: An Alternative Model?" 12 For general discussions see: Brian Galligan, and F.L. Morton, "Australian Exceptionalism: Rights Protection without a Bill of Rights," in Protecting Rights without a Bill of Rights: Institutional Performance and Reform in Australia, ed. Tom Campbell, Jeffery Goldsworthy and Adrienne Stone (Sydney: Ashgate Publishing, 2006); B. Galligan, R. Knopff, and J. Uhr, "Australian Federalism and the Debate over a Bill-of-Rights," Publius-the Journal of Federalism 20, no. 4 (1990). 13 Susanna Dunkerley, "Govt Rejects Formal Human Rights Charter," Sydney Morning Herald (2010), http://news.smh.com.au/breaking-news-national/govt-rejects-formal-human-rights-charter-20100421- stv8.html.
6 on the bill-of-rights issue remains strong, the Victoria and ACT developments
notwithstanding. At a national level, certainly, Australia and Canada are far apart on the
institutional continuum. The stark institutional difference between these two otherwise
similar regimes makes them an even more obvious and attractive choice for comparative
study.
It is significant, moreover, that Canada and Australia have placed themselves at
opposite ends of the institutional debate about rights only recently. As chapter 2 shows in
detail, while bill-of-rights proponents won a very quick victory in the United States, their
example was not followed by either the Canadian or Australian founders, despite their
familiarity with the American example and their evident willingness to borrow from
American constitutionalism in other ways. It was not until 1982 that Canada opted for the
bill-of-rights model while, at roughly the same time, Australia consciously chose not to
go down the same road, a choice it has continued to reaffirm at the national level. Prior to
1982 in Canada, the judiciary was by no means absent from the system of checks and
balances, often using principles of statutory and common law interpretation, the
constitutional law of federalism, and even implied constitutional rights to influence the
policy process. The Australian judiciary continues to play the same kind of role. In
Canada, however, a full panoply of entrenched rights has significantly expanded the
scope and reach of judicial power.
Moreover, the different choices recently made by the two countries are often justified in terms of the perceived presence or absence of other inter-institutional checks
and balances. Thus, Canada's Charter of Rights is defended partly on the grounds that
7 other effective checks and balances are lacking14 while Australia has thus far resisted an
entrenched bill of rights partly because of the perception that other checks and balances,
particularly effective bicameralism, effectively screen out rights violations.15
Which is the more moderating institutional approach: bicameralism or judicial
power under an entrenched bill of rights? When judges engage with the policy process -
as they inevitably will - are their interventions more or less polarizing (or more or less moderating) when based on entrenched rights than when based on other strategies?
Comparison of the same policy controversies at roughly the same time during the period
of institutional divergence in Canada and Australia can help us grapple with these
questions. Key to undertaking such a comparison, of course, is a way to operationalize the concept of policy moderation. This methodological issue, among others, is addressed
in chapter 3. First, however, I turn in chapter 2 to the longstanding debate about different
institutional arrangements to protect rights
14 T. R. S. Allan, Law, Liberty, and Justice : The Legal Foundations of British Constitutionalism (New York: Oxford University Press, 1993); Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. 15 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government, Reshaping Australian Institutions (Cambridge ; New York: Cambridge University Press, 1995); John Uhr, Deliberative Democracy in Australia : The Changing Place of Parliament, Reshaping Australian Institutions (Cambridge ; New York: Cambridge University Press, 1998).
8 CHAPTER 2: INSTITUTIONAL ARRANGEMENTS TO PROTECT RIGHTS
Liberal democracies have always been centrally concerned with the protection of
rights and freedoms. There is, to be sure, considerable disagreement about the nature of
rights, the appropriate balance between competing rights, and the extent of "reasonable
limits" on rights, but it is difficult to gainsay the prominence of "rights talk" itself almost
anywhere in the liberal democratic world (and elsewhere).16 Nor is it possible to dispute
seriously the emphasis in liberal democratic thought on inter-institutional checks and
balances as a prominent mode of protecting rights. The primary reason that institutional
checks and balances are needed is to balance majoritarian impulses with the protection of
minority rights. Almost everywhere in the liberal democratic world, from the very outset
and still today, the search has been for institutional mechanisms to moderate inevitable
rights-threatening passions and extremism. Typically, this search has focused on checks
and balances within and among the three main branches (or functions) of modern
government: legislative, executive, and judicial. While these mutually checking
institutions are more starkly separated in American Congressional-style constitutional
Janet L. Hiebert, "Debating Policy: The Effects of Rights Talk," in Equity & Community: The Charter, Interest Advocacy and Representation, ed. F. Leslie Seidle (Montreal: Institute for Research on Public Policy, 1993); Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge: Harvard University Press, 2004); Grant Huscroft and Paul Rishworth, Litigating Rights: Perspectives from Domestic and International Law (Oxford ; Portland, Or.: Hart, 2002); Rory Leishman, Against Judicial Activism : The Decline of Freedom and Democracy in Canada (Montreal: McGill-Queen's University Press, 2006); Martin M. Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford ; New York: Oxford University Press, 2002); Alec Stone Sweet, Governing with Judges : Constitutional Politics in Europe (Oxford ; New York: Oxford University Press, 2000); , The Judicial Construction of Europe (Oxford; New York: Oxford University Press, 2004).
9 systems, parliamentary thought, as we shall see, has also emphasized the conceptual differences and sought to exploit the productive tensions between the three branches. And regardless of which system one examines - American or parliamentary - the independence of a separate judiciary has been a central feature of checks-and-balances thinking.
Within this broad consensus, however, there has been - again from the very beginning - a significant debate about whether the moderating goal of checks and balances is enhanced or undermined when the necessarily independent judiciary is armed with a constitutionally entrenched, judicially enforceable bill of rights. It is to that debate that this study aims to contribute comparative evidence. The purpose of this chapter is to outline the debate, in its historical context, in the United States, Canada, and Australia.
In the United States, the debate took place very early and was quickly won by the bill-of-rights proponents, though its themes have remained important undercurrents in
American constitutional debate ever since. Canada and Australia, while looking to the
United States for inspiration on some issues, rejected the bill-of-rights component of the
U.S. at their respective foundings. Canada eventually followed the American lead in
1982, 115 years after its 1867 founding, when it adopted the Charter of Rights and
Freedoms. Up to the time of writing at least, Australia remains a bill-of-rights holdout, the last in the liberal democratic world.
It is important to reiterate that the debate within and between these countries is not about whether the courts have a contribution to make to a moderating inter- institutional system of checks and balances. Virtually everyone agrees that they do. The
10 question concerns the desirability of adding one particular piece, a constitutionally entrenched bill of rights, to an already broad judicial arsenal. To fully understand the debate, it is essential to understand the contribution courts can and do make without a bill of rights. When this study later compares Canada, with its Charter of Rights, and
Australia without such a document, we should not expect to see the judiciary absent from the Australian policy process, any more than the Canadian judiciary was absent prior to the Charter, or any more than the American judiciary would have been absent had the early bill-of rights movement failed in the U.S. Indeed, the non-bill of rights parts of the judicial arsenal remain in place, and in operation, even where bills of rights exist. Thus, after reviewing the bill-of-rights debate in each country, this chapter concludes with a brief overview of the important judicial role in liberal democracies, regardless of whether an entrenched bill of rights exists.
The United States: Federalists vs. Anti-Federalists
Some of the most influential American founders, certainly champions of liberalism and rights, deemed it unnecessary to include a bill of rights in the original constitution. In Federalist 84, Alexander Hamilton explicitly rejected a bill of rights on the grounds that the "Constitution itself, in every rational sense, and to every purpose is a bill of rights."17 Similarly, Thomas McKean, a federalist supporter from Pennsylvania, argued that a bill of rights was unnecessary because "in fact the whole plan for
17 Hamilton et al., Federalist Papers, 525.
11 government is nothing more than a bill of rights." James Madison agreed. In a letter to
his friend Thomas Jefferson, a bill of rights supporter, he spoke of bills of rights as
frequently violated "parchment barriers," observing that "experience proves the
inefficiency of a bill of rights on those occasions when its controul is most needed."19 As
Judge Learned Hand would famously articulate much later, "no court can save" a society
in which the "spirit of moderation is gone" - i.e., precisely when some kind of "saving"
is most needed - adding "that a society where that spirit flourishes, no court need save."20
Madison was not inclined to leave the cultivation of the requisite "spirit of
moderation" to chance. Indeed, as he explained so memorably in his contributions to the
Federalist Papers, human beings were no "angels" whose virtues could be relied upon.
To the contrary, the cause of moderation required careful institutional support to
counteract natural tendencies to zealous extremism. Madison stated the basic political problem in Federalist 51:
If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.21
Rainer Knopff and F. L. Morton, Charter Politics (Scarborough, ON: Nelson Canada, 1992). 19 Constitution Society, "Letter to Thomas Jefferson, October 17, 1788," Selected Writings of James Madison (1995), http://www.constitution.org/jm/17881017_bor.htm. Quoted in Alexander M. Bickel, The Least Dangerous Branch : The Supreme Court at the Bar of Politics, 2nd ed. (New Haven: Yale University Press, 1986). 21 Hamilton et al., Federalist Papers, 316.
12 The 'auxiliary precautions' Madison had in mind were intended to counteract the inevitable rights-threatening zealotry of political faction. So strongly (and naturally) are we humans inclined to divide into hostile factions, said James Madison in Federalist 10,
"that where no substantial occasion presents itself the most frivolous and fanciful distinctions [are] sufficient to.. .excite [the] most violent conflicts."22 Clearly, Madison is aware that such bellicose extremism, if allowed to go unchecked, would lead to the worst kinds of rights violations. Thus, the propensity to engage in such activities had to be somehow moderated. The "auxiliary precautions" designed to accomplish this feat were the famous checks and balances among the separated institutions of representative democracy. This system, laid out in Federalist 51, was designed so that "ambition would be made to counteract ambition" therefore "supplying, by opposite rival interests the defect of better motives."23
Instead of promoting extremist zealotry, ambition would be recast to promote greater moderation. The system would force ambitious representatives to engage in a moderating process of coalition building within and across separate political institutions.
In this process, the mild "voice of reason" which would otherwise be overpowered by the natural propensity toward zealotry, could emerge to sustain a degree of moderating deliberation.24 The resulting policy outcomes, which would reflect not passionate extremism, but rather the "cool and deliberate sense of community," would be unlikely to
Ibid. 52. Ibid. 316. Ibid. 257.
13 infringe fundamental rights. It is in this sense that the pre-Bill of Rights constitution
was thought by supporters to be itself a bill of rights. An independent judiciary was
certainly thought to be a key part of the institutional structure, but it need not be armed
with a constitutional bill of rights. In short, the drafters' aim "was to ensure that rights
would be secured by elected officials acting through representative institutions."26
Despite Publius' claims to the contrary, the Anti-Federalists feared the national
government's power was too great and would further expand, eroding the civil liberties of
citizens. Richard Henry Lee wrote to Samuel Adams in 1787:
The corrupting nature of power, and its insatiable appetite for increase, hath proved the necessity, and procured the adoption of the strongest and most expressed declarations of that Residuum and natural rights, which is not intended to be given up to Society; and which indeed is not necessary to be given for any good social purpose. In a government therefore, when the power of judging what shall be for the general welfare, which goes to every object of human legislation; and where the laws of such Judges shall the supreme Law of the Land: it seems to be of the last consequence to declare in most explicit terms the reservations above alluded to.27
The Anti-Federalists did not trust Congress, let alone the executive, to respect civil rights and liberties, and criticized the exclusion of a bill of rights in the Constitution.
The Impartial Examiner explained "it has been held in a northern state by a zealous advocate for this constitution that there is no necessity for a "bill of rights" in the foederal
" Ibid. 384. 26 John Dinan, Keeping the People's Liberties: Legisaltors, Citizens and Judges as the Guardians of Rights (Lawrence, Kansas: University Press of Kansas, 1998), 2. 27 Philip B. Kurkland, and Ralph Lerner, "The Founders Constitution," Liberty Fund, http://press- pubs.uchicago.edu/founders/tocs/toc.html.
14 [sic] government; although at the same time he acknowledges such necessity to have existed when the constitutions of the separate governments were established."28 The
Anti-Federalists thought bills of rights were the standard by which rulers could be held accountable to the people. On October 9 1790, the Federal Farmer argued "there are certain unalienable rights, which ought to explicitly ascertained and fixed ... [and the governed] will not resign their rights to those who govern."29 Moreover, he argued
"these rights should be made the basis of every constitution." Brutus warned that without an explicit "declaration of rights" to protect "the democratical part" of the citizenry, "the plan is radically defective in a fundamental principle, which ought to be found in every free government; to wit, a declaration of rights."30 Agrippa of Massachusetts argued "a declaration of rights is of inestimable value. It contains those principles which the government can never invade without an open violation between them and the citizens."31
Brutus further asks "Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought."
Despite the success of the Federalists in ratifying the constitution, they failed to dissuade the Anti-Federalists from their support of an entrenched bill of rights. As
Thomas Jefferson notes in a letter to James Madison on December 20, 1797, "a bill of rights is what the people are entitled to against every government on earth, general or
Herbert J. Storing, ed The Anti-Federalist: Writings by the Opponents of the Constitution, ed. Murray Dry (Chicago: University of Chicago Press, 1985). 29 Ibid. 40. 30 Ibid. 31 Ibid. 293. 32 Ibid. 122.
15 particular, and what no just government should refuse, or rest on inference." Madison
ultimately came to side with Jefferson and Anti-Federalists, becoming the father of the
Bill of Rights, shepherding it through the First Congress in order "to satisfy the public
mind that their liberties will be perpetual and this without endangering any part of the
constitution."34 It has been suggested that Madison took on practical leadership of the bill
of rights movement primarily for strategic reasons, understanding that it had become
inevitable, but seeking to ensure a weaker, less sweeping bill than its more enthusiastic
proponents wanted.35 Irrespective of the practical reasons, the end result was the
enactment of the Bill of Rights almost immediately after the adoption of a constitution
designed not to need one.
Canada and Australia
While the sole reliance on the political method of rights protection did not last
long in the United States, it survived much longer in other western liberal democracies,
Canada and Australia among them. Both the Canadian and Australian founders were keenly aware of the American Constitution, including the Bill of Rights, when they set about drafting their respective constitutions. Indeed, both adopted significant parts of the
American model, yet neither adopted a bill of rights.
Thomas Jefferson, Julian P. Boyd, and Elizabeth J. Sherwood, The Papers of Thomas Jefferson (Princeton: Princeton University Press, 1950). 34 James Madison, Madison Writings, ed. Jack N Rakove (New York: Penguin Putnam Inc, 1999); Dinan, Keeping the People's Liberties: Legisaltors, Citizens and Judges as the Guardians of Rights, 2-3. 35 Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, DC: AEI Press, 1997).
16 Although it may sound foreign to modern ears, especially in Canada, there was a strong sense in both countries that the best rights-protecting system was found not in a entrenched constitutional bill of rights, but in the tradition of parliamentary responsible government, understood as the system in which the political executive (Prime Minister and Cabinet) sit as members of the legislature, retaining their governmental authority insofar as they maintain "the confidence" of a majority in the legislatures lower house (if there is more than one).
This was certainly the view when responsible government was established in
Canada. Although his sins are seen as legendary in other respects, Lord Durham is universally acknowledged and celebrated as a major advocate and founder of this form of government in Canada. As Janet Ajzenstat has demonstrated, Durham was (early)
Madisonian in his views that extremist faction was the essential political problem and institutional checks and balances the best solution. The political constitution he recommended was responsible government, which was described as a "balanced or mixed form of government."36 Durham argued that this form of government institutionalized political opposition "to ensure that there was always a means to dispose parties claiming supreme title to rule, even - perhaps essentially - parties claiming to speak for the
'nation' or the 'people'."37 Responsible government, in short, created the checks and balances needed to prevent an entrenched (hence rights-threatening) faction from ruling in perpetuity.
Janet Ajzenstat, The Political Thought of Lord Durham (Kingston, Ont.: McGill-Queen's University Press, 1987), 10.
17 This perspective persisted in the debates over Confederation in 1867. Richard
Cartwright, for example, insisted that he preferred "to have British liberty to American equality." The "calm and deliberate decision is almost always just," said Cartwright, echoing the Federalist's praise of the "cool and deliberate sense of the community,"39 but finding its source in British rather than American checks and balances. The British parliamentary system, he argued, abounds:
with safeguards - with latent checks of all kinds - checks established, many of them, more by custom and usage than by positive law - as to make it all but impossible for any majority, however strong, to perpetrate any gross act of injustice on a minority, so long as that minority could command but one or two resolute representatives on the floor of Parliament.40
David Christie similarly considered parliamentary government to be an adequate rights-protecting mechanism. Strikingly, he quotes the American Declaration of
Independence verbatim in his defence of parliamentary responsible government:
Their [the Americans] institutions have the same features with our own. There are some points of variance, but the same great principle is the basis of both - that life, liberty and the pursuit of happiness are the unalienable rights of man, and that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. This is the secret of strength of the British Constitution, and with a free and full recognition of it no government can be strong or permanent.41
Janet Ajzenstat et al., eds., Canada's Founding Debates (Toronto: Stoddart, 1999), 19. 39 IbidIbid . 40 IbidIbid. 41 Ibid. 191.
18 Cartwright and Christie were not alone. As Ajzenstat notes, "the word 'rights'
comes bursting out of [the Canadian founders'] speeches."42 Indeed, William Lawrence
of Nova Scotia argued that "[u]nder the British Constitution we have far more freedom
than any other people on the face of the earth."43 Similarly George Hogsett of
Newfoundland said "[w]e have a constitution for which the people nobly fought, and
which was reluctantly wrung from the British government. We had the right of taxing
ourselves, or legislating ourselves."44 There was obviously a considerable rights
consciousness and orientation in the Canadian founding that did not entail support for a
constitutionalized bill of rights.
The same was true of the Australian founding, which included ample discussion
about how to best protect individual rights in the new Commonwealth. The Australians
copied in many respects the American Constitution with the allocation of legislative powers, the Senate and the judicial system. Indeed, the similarities led Inglis Clark, an
influential drafter, to observe:
[Our Constitution] so closely resembles the Constitution of the United States of America it may not be improperly described as an adaption of that Constitution to the political circumstances [of Australian colonies] ... and the authors of the American prototype may be fitly regarded as being also the primary authors of the Constitution of the Commonwealth of Australia."45
Janet Ajzenstat, The Canadian Founding: John Locke and Parliament (Montreal and Kingston: McGill- Queens University Press, 2007), 50. 43 Ajzenstat et al., eds., Canada's Founding Debates, 98. 44 Ibid. 45 Quoted in: Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (Sydney: University of New South Wales Press, 2002), 18-19.
19 There is, however, one fundamental difference between the American and
Australian model, namely the Bill of Rights. An explanation traditionally offered for the absence of a bill of rights is primarily historical.46 The years leading up to the adoption of the American Constitution and Bill of Rights were filled with turmoil, whereas the
Australian experience, much like the Canadian one, was peaceful, obviating the need for constitutional entrenchment of rights. Justice Moffat wrote:
The Australians had no recent memory of bitter struggle against tyrannical devices to make them determine to erect permanent protections against their use again... [T]hey must have felt that the protections to individual rights provided by the traditions of acting as honourable men were quite sufficient for a civilised society.47
Yet, the view that rights need not be entrenched in the Constitution was not uncontested during the founding period. Inglis Clark, who travelled extensively in the
US, argued for the inclusion of individual rights protections:48
The essentially republican doctrine of the natural, or ...the rational rights of man ... [that] may be .. .ultimately found to be the true and final justification of all resistance to the tyranny of the majority, whose unrestricted rule is so often and so erroneously regarded as the essence and distinctive principle of democracy. The unrestricted use of the majority of the hour is at all times a contradiction of the rational rights of the individual.49
46 Charlesworth, Writing in Rights, Zelman Cowan, "A Comparison of the Constitutions of Australia and the United States," Buffalo Law Review 4 (1955); Robert Menzies, Central Power in the Australian Constitution (Melbourne: Cassell & Company Ltd.,, 1967); George Williams, Human Rights under the Australian Constitution (Melbourne ; New York: Oxford University Press, 1999). 47 Robert C. L. Moffat, "Philosophical Foundations of the Australian Constitutional Tradition," Sydney Law Review 59 (1965). 48 Clark argued for the inclusion of just four rights: right to jury trial; privileges and immunities of State citizenship; equal protection and due process under the law; and freedom of and non-establishment of religion. 49 Charlesworth, Writing in Rights, 24.
20 Richard O'Connor also argued in favour of entrenching rights in the new constitution, on the grounds that "[w]e are making a Constitution which is to endure, practically speaking for all time." Moreover, "In the ordinary course of such things a provision [due process clause] would be unnecessary; but as we all know that laws are passed by majorities and that communities are liable to sudden and very often unjust impulses."50 Here we see the echoes and influences of the Anti-Federalists' early warnings.
Clark's suggestion of including some rights in the draft of the Constitution was met with serious resistance from other drafters. Alexander Cockburn, in particular spoke strongly against the inclusion of individual rights. Rights would be appropriate, argued
Cockburn, only in the constitution of a 'savage race.' He argued:
[T]he insertion of these words [guarantees of rights] would be a reflection on our civilisation. People would say "Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice.51
Some of the Australian founders were unconvinced that majorities could perpetrate such acts of injustice under the British constitutional model. As early as 1897,
Robert Farran, in the Australian Handbook of Federal Government, argued that "few of the US Constitution's provisions relating to the individual rights were relevant to
Australia. They were either trivial or amply secured."52 Similarly, James Bryce, whose
5U Ibid. 20. 51 "Constitutional Convention Debates," Commonwealth Parliament of Australia, http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=CONCON&ID=477. 52 Charlesworth, Writing in Rights, 20.
21 book The American Commonwealth was influential to the Australian founders, later
described the absence of constitutional protection of individual rights in the Australian
Constitution as "proof of its modernity and its truly democratic character."53
Much later, prominent Australian jurist Sir Owen Dixon observed to an
American audience that Australia had "consciously studied the American Bill of Rights, but that study had fired no one with enthusiasm for the principle," and Australians of his
own time remained "impenitent in their steadfast faith in responsible government."54
Former Australian Prime Minister [and Dixon clerk] Menzies elaborated the point. He
argued:
With us a Minister is not just a nominee of the head of the Government. He is and must be a Member of Parliament, elected as such, and answerable to Members of Parliament at every sitting. He is appointed by a Prime Minister similarly elected, and open to regular question. Should a Minister of something which is thought to violate a fundamental human freedom he can be promptly brought to account in Parliament. If a government support him, the Government may be attacked, and if necessary defeated. And if that, as it normally would, lead to a new General Election, the people will express their judgment at the polling booths.55
Menzies vigorously defended the Australian founders' decision not to draft a bill of rights.56 "With legal definition [of rights]," he maintained, words can become more important than ideas. To define human rights is either to limit them - for in the long run
53 James Bryce, Studies in History and Jurisprudence, vol 1. (Oxford: Clarendon Press: 1901), 502-3 54Knopffand Morton, Charter Politics, 199. Menzies, Central Power in the Australian Constitution, 52. 56 Ibid.
22 words must be given some meaning - or express them so broadly that.. .ordered society becomes impossible."57 Menzies concludes with a powerful endorsement of responsible
government as the ultimate guarantee of rights:
In short, responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of Common Law, we have not felt the need of formality and definition. I would say without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the World.58
Thus, for Dixon and Menzies, the checks and balances of responsible parliamentary government provided ample protection for rights, and there was no reason to abandon this type of protection for American-style constitutional entrenchment.
This perspective finds support in the writings of the well known British constitutional scholar A.V. Dicey, whose Law of the Constitution makes the claim that parliamentary government secures rights.59 The two pillars of strength in the
Westminster system - parliamentary sovereignty and rule of law - are said by Dicey to be mutually enforcing. As Janet Ajzenstat points out, "the rule of law supports parliamentary sovereignty, and parliamentary sovereignty and in turn - this is the crucial point - protects the rule of law, and with it the entire panoply of English rights."60 In short, Dicey, the famous proponent of parliamentary supremacy, argues that this is an
"ibid. 58 Ibid. 54. 59 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed., (London: Macmillan, 1960). 60 Janet Ajzenstat "Reconciling Parliament and Rights: A.V. Dicey Reads the Canadian Charter of Rights" Canadian Journal of Political Science 30(4) (1997), 645.
23 effective system of rights protection. Like the Canadian and Australian founders, he
expects rights guarantees to emerge from the contest among parties in the legislature. In
other words it is through free speech and partisan debate that rights securing laws are
achieved. Ajzenstat quickly reminds us that "no argument will suffice to show that rights
never suffer in a parliamentary democracy. But Dicey's claim is that parliamentary
democracy is able to protect rights, and does this as well as a constitutional bill of
rights."61
This view remains vibrant in contemporary Australia. In 2001, New South Wales
Labor Premier Bob Carr attacked those who would support a bill of rights for Australia.
He said:
Parliaments are elected to make laws. In doing so, they make judgments about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgment is correct. However, if the decision is unacceptable the community can make it known at regular elections. This is our political tradition. A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy-making functions to the judiciary... A bill of rights is an admission of the failure of parliaments, governments and the people to be behave in a reasonable, responsible and respectful manner.62
Similarly former Commonwealth Attorney-General, Daryl Williams argued that
democratic institutions and the common law protect rights. He notes "Parliaments make
laws in this country. In doing so they make decisions about how competing rights and
61 Ibid. 658. 62 Quoted in Charlesworth, Writing in Rights, 37.
24 freedoms, including those of the community at large, are to be balanced. As noted in the previous chapter, similar views led to the bipartisan rejection by the Commonwealth of a weak-form Australian human rights statute as late as 2010.
In Canada, too, important strains of this tradition of thought persisted even as the country took a significant turn away from the parliamentary supremacy model. Indeed, influential supporters of the traditional succeeded in writing some echoes of it into the new constitutional order. For example, Manitoba Premier Sterling Lyon argued that the adoption of the Charter "was the slippery slope down the path of republicanism" basing this assertion on "the experience of our neighbours to the south, where judges create rights."64 Similarly, Saskatchewan Premier Allan Blakeney, Lyon's ideological polar opposite, argued the adoption of the Charter was a "matter foreign to Canadian constitutional practice and tradition."65 The fears of these two former premiers, among others, were partially allayed with the inclusion of the "reasonable limits" and
"notwithstanding" clauses of the Charter, which gave legislatures some continuing influence over rights policy.
Canada vs. Australia
The modern view, advocated by many scholars, is that for rights to be adequately protected there needs to be an entrenched bill of rights.66 Indeed, proponents who insist that parliamentary systems are capable of protecting rights through institutional checks
63 Ibid. 38. 64 Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue, 56. 65 Quoted in Ibid. 56. 66 James B. Kelly, "The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism in Canada, 1982-1997," Osgoode Hall Law Journal 37, no. 3 (1999); , Governing with the Charter : Legislative and Judicial Activism and Framers' Intent (Vancouver: UBC Press, 2005).
25 and balances are seen to be laughably naive. Far from being an effective system of checks
and balances, responsible government is seen in Canada to underpin the increasingly
unchecked concentration of power in the hands of first ministers, who are confronted
only by impotent oppositions and "trained-seal" backbenchers in their own parties.67
Nor is this decline of checks and balances within legislatures offset by an
effective bicameralism, which is non-existent in the provinces and ineffective in Ottawa.
Indeed, the Senate of Canada is an unelected, ineffectual chamber whose members are
appointed by the Prime Minister.68
Thus, it is said that in Canada the only meaningful separation of powers - and
consequently the only effective inter-institutional checks and balances - lies between the judiciary and Parliament, not between the executive and the legislature, or indeed,
between the Houses of Parliament.69 For example, T.R.S. Allan argues that "it seems
necessary ... to match executive discretion with judicial discretion" so that judges can
check potential abuses coming from the executive branch of government.70 Similarly, Ian
Greene and his collaborators argue that those opposed to judicial power in Canada "fail to
Donald J. Savoie, Governing from the Centre : The Concentration of Power in Canadian Politics (Toronto: University of Toronto Press, 1999); Jeffery Simpson, Friendly Dictatorship: Reflections on Canadian Democracy (Toronto: McClelland & Stewart, 2001). 68 In law, Senators are summoned by the Governor General. 69 Peter W. Hogg, Constitutional Law of Canada 4th Ed., 2nd ed. (Toronto, Ont.: Carswell, 1997). Allan, Law, Liberty, and Justice : The Legal Foundations of British Constitutionalism; Raymond Tatalovich and Bryon W. Daynes, "Introduction: Social Regulations and Moral Conflict," in Moral Controversies in American Politics: Cases in Social Regulatory Policy, ed. Raymond and Bryon W. Daynes Tatalovich (London England: M.E. Sharpe, 1998).
26 recognize the essentially corrective role of the courts in a system of parliamentary
majority rule where the executive dominates the policy process."71
In this view, only the growth of Charter-based judicial power can provide the
moderating inter-institutional dialogue that checks and balances theory sees as essential
to effective rights protection, and which is otherwise thought to be missing from the
Canadian scene. Indeed, the most prominent defence of the role of the court uses the
"dialogue" metaphor, which holds that the dispassionate reason of judges can, in
"conversation" with impassioned legislatures, assist the latter to achieve legitimate policy
ends in more finely tuned - i.e., more moderate - ways. Dialogue is said to take place
primarily under Section 1 of the Charter of Rights, which permits such "reasonable
limits" on rights as can be "demonstrably justified in a free and democratic society." To
qualify under this clause - in accordance with the so-called Oakes test73 - the
"compelling purpose" of the policy must be achieved through legislative means that are
"proportional," in the sense of both having a "rational connection" to the purpose (i.e.,
actually achieving it) and "minimally impairing" the right in question. Since compelling purpose and rational connection are most often conceded, the inter-institutional conversation is about designing the most moderate policy means under the minimal
71 Ian Carl Baar Greene, Peter McCormick, George Szablowski and Martin Thomas, Final Appeal: Decision-Making in Canadian Courts of Appeal (Toronto: J. Lorimer, 1998), 232; Peter H. Russell, "The Charter and Canadian Democracy," in Contested Constitutionalism: Reflections on the Charter of Rights and Freedoms, ed. James B. Kelly, and Christopher P. Manfredi (Vancouver: UBC Press, 2009). 72 M. A. Hennigar, "Expanding The 'Dialogue' Debate: Canadian Federal Government Responses to Lower Court Charter Decisions," Canadian Journal of Political Science-Revue Canadienne De Science Politique 37, no. 1 (2004); Hogg and Bushell, "Charter Dialogue"; Peter W. Hogg, Allison A. Bushell, and Wade K. Wright, "Charter Dialogue Revisited~Or "Much Ado About Metaphors"," Osgoode Hall Law Journal 45, no. 1 (2007); Kelly, Governing with the Charter : Legislative and Judicial Activism and Framers' Intent, Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. 73 R. v. Oakes, 1 SCR 103 (1986).
27 impairment test. The Court's task, in short, is to ensure that a policy "sledgehammer" is not used when a more moderate policy "fly swatter" will do.
The less prominent part of the inter-institutional checks and balances in Canada
(but an important part of the dialogue metaphor) is the Section 33 notwithstanding clause.
The legislative override is the "most obvious and direct way of overcoming a judicial decision striking down a law for an infringement of Charter rights."74 This Section permits elected legislatures to override Charter sections 2 and 7-15 for a period of five years.75 After the five-year period has ended, the override has to be re-enacted if the legislature desires the continued suspension of the Charter right. This restriction of the clause forces a periodic review of section 33, ensuring a check on the impassioned legislatures said to have suspended a Charter right. This forced review of the legislation containing the notwithstanding clause allows a sober second look after the passions of the representative government have cooled. As mentioned above, both Sections 1 and 33 were introduced in an attempt to bring the sceptical premiers, especially western premiers, onside with the adoption of the Charter.76
In effect, dialogue theory turns the perspective represented by the early Madison and Judge Learned Hand precisely on its head. To his aforementioned assertion that "no court need save" a society imbued with the "spirit of moderation," Hand added "that in a
74 Hogg and Bushell, "Charter Dialogue," 83; Russell, "The Charter and Canadian Democracy." 75 The power of notwithstanding clause is not available with respect to the rights guaranteed under ss. 3-6 (voting and mobility), 16-23 (language), and 28 (sexual equality). 76 Western premiers were wary of an increasingly powerful judiciary armed with a Charter of Rights. This fear was based on earlier federalism decisions, which, in the view of the Premiers, saw an activist court expand the powers of the federal government in the area of natural resources. See for example CIGOL v. Government of Saskatchewan [1978] 2 SCR 141, and Central Canada Potash Co. Ltd. et al. v. Government of Saskatchewan, [1979] 1 SCR 42.
28 society which evades its responsibility by thrusting upon the courts the nurture of that
spirit, that spirit in the end will perish." Dialogue theorists believe that - especially through section 1 conversations, but even through section 33 interaction - courts will foster precisely the moderation that Hand thought they would undermine.
Bill-of-rights critics, by contrast, agree with Hand that courtroom "rights talk," far from cooling the fires of passionate polarization, tends to fuel them. They argue that reliance on legislative processes, including legislative checks and balances, is more likely to achieve the desired moderation. Among the critics, Mary-Ann Glendon is well known for updating Hand by arguing that courtroom "rights talk" "increases the likeliness of conflict and inhibits the sort of dialogue that is increasingly necessary in a pluralistic society."77 In the Canadian context, Peter Russell has similarly described the transfer of policymaking power from legislatures to courts as representing a "flight from politics, a deepening disillusionment with the procedures of representative government by discussion as a means of resolving fundamental questions of political justice."78 He notes the result is a polarizing "contest between legal adversaries rather than ... a political process more likely to yield social consensus."79
Australia, as a notable holdout against the contemporary bill of rights juggernaut, at least at the national level, takes the critics' side in this debate. It does so in part because other, non-judicial avenues of moderating inter-institutional "dialogue" remain plausible there. Although Australia also has a British-style Parliamentary system of responsible
Glendon, Rights Talk: The Impoverishment of Political Discourse. 78 Peter H. Russell, "The Effect of the Charter of Rights on the Policy-Making Role of Canadian Courts," Canadian Public Administration 25 (1982).
29 government characterized by executive-enhancing party discipline, especially in the lower house, the elected Senate is an effective check on the executive dominated lower house of Parliament. Therefore, when the question of adopting a bill of rights emerges, it is possible in Australia to use bicameralism to sustain the older argument that the check of strong-form judicial review is unnecessary. For example, during the 1988 debates on constitutionally entrenching rights, it was said "the Senate, is the watchdog for the people and the States to see that they are not robbed of any of their rights or freedoms. It is the people's insurance or safety valve. It is the House of review for all legislation."80
Moreover, the Senate can perform this function because it enjoys "some degree of insulation from the power of the executive government,"81 and thus has a "deliberative aspect to it which does not immediately characterize the House of Representatives." In this view, the Australian Senate achieves the same kind of reasoned check on the more impassioned lower house as the Canadian dialogue theorists attribute to the courts. In short, the argument that non-judicial checks can protect rights as well or better than a judicially enforced constitutional bill of rights remains more cogent in Australia than in
Canada, especially with respect to bicameralism. This notion has thus far helped to forestall an entrenched bill of rights in that country.
In sum, Canada and Australia have institutionalized two different and long standing streams of modern liberal-democrat constitutionalism: one embracing enhanced judicial power, while the other resists. While it may appear that this debate provides
Quoted in Knopff and Morton Charter Politics, 202. 1 Quoted in Ibid. 2 Quoted in Ibid..
30 simple alternatives to the best method of rights protection, no one really believes this. No
one argues that the Canadian and Australian approaches are equally efficient in
promoting the policy moderation envisioned by checks and balances theory.83 Canadian
Charter enthusiasts do not promote enhanced judicial review simply because other checks
and balances are lacking, any more than their Australian counterparts are prepared to
abandon their bill of rights ambitions just because of an effective Senate. For bill-of- rights supporters, checks and balances among democratically elected institutions do not
sufficiently douse the flames of extremist passion that Madison warned of in Federalist
10. Thus they maintain that there is a need for moderating "dialogue" with electorally independent judges even when other checks and balances, such as bicameralism, are in place.84 In short, it remains a matter of lively debate whether the moderate policy outcomes desired by liberal checks and balances theory are more likely to be achieved through judicial or non-judicial means.
The Role of the Courts in the Absence of Constitutional Bills of Rights
To characterize the debate as simply one that pits judicial against non-judicial avenues to moderation is too stark. An independent judiciary is always part of the overall system of interinstitutional checks and balances contemplated by the founders of Anglo-
83 Peter W. Hogg, "The Charter Revolution: Is It Undemocratic?" Constitutional Forum 12, no. 1 (2001), F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ont.: Broadview Press, 2000); Brian Galligan and F.L. Morton, "Australian Rights Protections" (paper presented at the Australasian Political Studies Association Conference, University of Adelaide, 29 September - 1 October 2004). 84 For example, see Murray Wilcox, An Australian Charter of Rights'? (Sydney: Law Book Company, 1993) and George Williams, Human Rights Under the Australian Constitution (Melbourne: Oxford University Press, 1999).
31 American constitutionalism, whether or not a constitutionally entrenched bill or charter of rights exists. The judiciary played a significant role in Canada prior to 1982 and continues to play that role in its non-Charter activities today. In Australia, the courts remain for the most part limited to that traditional non-bill-of-rights role. Accordingly, in comparing rights policy issues in Canada and Australia, we should expect to see judicial activity as part of the overall policy process in Australia, and we will be interested in observing its effects. The comparison at the centre of our interest is between effect of the
"strong-form judicial review"85 enabled by constitutionally entrenched rights, and a policy process grounded in more obviously political checks and balances. In the following discussion, I lay out the long history of court-based rights protection in Canada and Australia.
In many cases, the theorists who opposed full-scale entrenched bills of rights nevertheless saw the judiciary as an important part of the overall system of checks and balances. Thus, the same Alexander Hamilton who wrote in Federalist 84 that the whole of the original Constitution was itself a bill of rights, also pointed, in Federalist 9, to "the institution of courts composed of judges holding their offices during good behavior" as an important part of the "new science of politics"86 institutionalized in the proposed
Constitution. This "new science of politics," of course, emphasized separation of powers and interinstitutional checks and balances, including checks and balances provided by an independent judiciary, as Hamilton makes clear. Hamilton obviously thought the judiciary could play an important role in this respect even in the absence of the kind of
85 Tushnet, "Forms of Judicial Review as Expression of Constitutional Patriotism." 86 Hamilton et al., Federalist Papers, 45.
32 full-scale bill of rights with which we are now familiar. Similarly, the Canadian and
Australian founders, who also rejected a bill of rights, made much of the important influence of an independent judiciary.
There were, and are, numerous ways in which such a judiciary was, and is, expected to contribute to policy moderation and rights protection short of enforcing a full-scale constitutional bill of rights. We need at least an overview of these other avenues of judicial power. Certainly courts were expected to play a role with respect those constitutional provisions that did exist, such as the federal division of powers.
Moreover, although full-scale bills of rights were not included at the outset in any of the three countries under consideration, all of those constitutions included a small number of provisions that protect certain rights, but that are distributed throughout the main constitution and not in a comprehensive "bill of rights." Here, too, some judicial enforcement role was sometimes contemplated. Alexander Hamilton in Federalist 78 believed the courts could and should strike down laws that were "contrary to the manifest tenor of the constitution."87 His examples were bills of attainder88 and ex post-facto laws, which are important rights protections that were included in the original constitution.
The pre-Charter Canadian constitution similarly contained some entrenched rights. In particular, section 93 of the BNA Act outlines school rights for the Protestant minority in Quebec and the Roman Catholic minority in the rest of Canada, and section
8/Ibid., 473. 88 A "bill of attainder" is an act of the legislature, which declares individuals or groups guilty of a crime without a trial. For a general discussion see: Dennis Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (Montreal and Kingston: McGill-Queens University Press, 2010), 85-86.
33 133 sets out the right to use French in the Federal Parliament and courts and English in the Quebec National Assembly and Quebec courts.89 These two sections, of course, are not the kind of universal rights often found in bills of rights, but reflect specific political circumstances - the French-English cleavage - at the Canadian founding.
It is important to note that, with respect to section 93 school rights at least, the courts were explicitly not intended to be the first line of defense. Instead appeals against provinces that denied the school rights were to go to the federal cabinet. If the provinces failed to comply with the Cabinet's instructions the federal parliament could pass legislation which corrected the perceived shortcoming. The federal cabinet threatened to use the remedial powers only once in 1895, when the Conservative Government led by
Charles Tupper, Canada's shortest serving Prime Minister, proposed remedial legislation on an appeal by Manitoba Catholics. It is suggested this threat to use the remedial powers led to the downfall of the Tupper Conservatives in favour of the Laurier
Liberals.90
Despite the reliance on non-judicial enforcement mechanisms of Section 93 in the
Constitution, it has received some judicial interpretation, primarily by the Judicial
Committee of the Privy Council. In the case of Barrett v. The City ofWinnipeg (1892), for example, the Judicial Committee of the Privy Council (JCPC) upheld the constitutionality of Manitoba legislation which established a secular school system and
Peter H. Russell, Rainer Knopff, Thomas M.J. Bateman, and Janet L. Hiebert, The Court and the Constitution: Leading Cases (Toronto: Edmund Montgomery Publications Ltd., 2008), 262.
34 withdrew funding for Catholic separate schools. Again in 1917, the JCPC upheld
Ontario legislation prohibiting the use of French in all schools, including separate Roman
Catholic schools.92
As noted above, Section 133 of the Constitution Act 1867 deals with right to use
French in the federal Parliament and courts and the reciprocal right to use English in
Quebec. The Supreme Court has given these rights a broad and liberal interpretation. In
Attorney General v. Blaikie93 the Supreme Court was asked to reconcile Quebec's
Charter of French Language and Culture (Bill 101) and Section 133. The Court held the
constitutional provision that Acts of Quebec Legislature "shall be printed and published
in both English and French" required more than a simple English translation of French
statutes. Contrary to Bill 101, Section 133 required legislation to be enacted in both
French and English to give both official languages equal force in law. The Court went
beyond statutes to include regulations and subordinate legislation to be passed in French
and English.94
The Australian constitution also contains a small number of explicit constitutional rights provisions: section 80 guarantees the right to jury trial for indictable offenses under
Commonwealth law; section 116 guarantees freedom of religion; and section 117 prohibits discrimination against those from another state. The High Court has interpreted these constitutional provisions narrowly. In a series of cases beginning with
91 Barrett v City of Winnipeg, A.C. 445 (1892). 92 Robert Charles Vipond, Liberty and Community : Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991), 110-12. 93 Quebec (Attorney General) v. Blaikie, 2 S.C.R. 1016 (1979).
35 R v. Archdall (1928), the High Court has narrowed the s.80 protection, ruling that a jury
trial is only required "on indictment."95 In short, it is up to the Commonwealth (not the
individual) to determine whether the jury trial provision applies. As George Williams
notes, "there is no individual entitlement to a jury trial, even when a person is charged
with a crime that is punishable by a lifetime in prison."96
Similarly, section 116 (freedom of religion) has been interpreted narrowly by the
High Court. For example, in Krygger v. Williams (1912), the High Court concluded that
"a law which obligates someone to do an act which is objectionable to his religion [may be] morally objectionable but [it is] not unconstitutional."97 Indeed, in rejecting a challenge requiring federal funding to religious schools (DOGS case, 1981), the High
Court seems to imply only an establishment of an official state religion (in law) would violate the constitution.98
In addition to the explicit rights guarantees, there is a requirement of "just terms" in the Commonwealth's acquisition power under section 51(xxxi). The acquisition power allows the Commonwealth Parliament to expropriate lands for a "Commonwealth purpose" - e.g. road construction. The just terms power is both a power given to the
Commonwealth Parliament (not the States) and a constitutional guarantee of "just compensation" for property rights. Just compensation is only defined as "fair" not as market value. In determining the fairness of a price, all interests, not just the displaced
95 Indictments in Australia are issued by the Attorney-General whereby a magistrate holds a committal hearing to decide whether there is sufficient evidence for a trial. 96 George Williams, A Charter of Rights for Australia (Sydney: University of New South Wales Press, 2007), 36. 97 Krygger v. Williams, HCA 65 15 CLR 366 (1912). 98 Attorney-General (Vic); Ex Rel Black v Commonwealth, HCA 2 146 CLR 559 (1981).
36 owner, are taken in to account. In Grace Bros Pty Ltd v The Commonwealth, Justice
Dixon (as he was then) indicated that the "just terms" clause was included to "prevent arbitrary exercises of power (by the Commonwealth) at the expense of a state or a subject."99
All three countries, in sum, have from the beginning had a very small number of rights provisions in their constitutions, even as they rejected (at least originally) a full panoply of such constitutional rights contained in a unified set of provisions designated as a bill or charter of rights. This does not mean that they were hostile to other rights or even a significant judicial role in protecting and promoting them. With respect to the much longer list of classically liberal rights, however, the broader system of institutional checks and balances was emphasized and the judicial contribution to this system was expected to come through non-constitutional (or non-entrenched) judicial bases of action.
One of the non-bill-of-rights bases of judicial action expected to promote and protect rights was the principle of the "rule of law," which the independent judges of a
"court of law" were certainly expected to uphold. A central feature of the rule of law is that government action cannot be "arbitrary" but must be plausibly rooted in generalizable law, applicable equally to everyone in whatever category of people the law targets. For example, if legislation makes fraud a crime, it would violate the rule of law if poor con artists are convicted while rich ones go free. As John Locke puts it, legislatures
"are to govern by promulgated and establish'd Laws, not to be varied in particular cases, but to have one Rule for Rich and Poor, for the Favourite at Court, and the Country Man
Ibid, at para 49.
37 at Plough."100 One should note that Locke's insistence on "one rule for rich and poor" does not preclude, say, progressive income taxes, which apply different tax rates to different income categories. What his statement precludes is taxing members of a politically prominent family who fall within an income category at a lower than specified rate. The point is to treat all members of a legal category equally, without preference based on extraneous considerations.
It is central to this dimension of the rule of law that a law actually be knowable, that its requirements be reasonably clear to those subject to it. This is why Locke emphasizes "promulgated and establish'd laws." A law so vague that it cannot be known is in effect a "secret law," or the basis for arbitrary, "after the fact" action by government.
The standard of promulgation or "knowability" is an essential foundation of a regime that wishes to protect rights. As F. A. Hayek puts it, the rule of law:
stripped of all technicalities ... means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will uses its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge.1 l
A famous illustration of the rule of law understood in this sense occurred in the
1959 Canadian case, Roncarelli v. Duplessis. Roncarelli was a Jehovah's Witness businessman (a restaurateur), who provided bail money to his co-religionists when their anti-Catholic rhetoric and activity led the authorities of predominantly Catholic Quebec
Ajzenstat, The Canadian Founding, 59. 1 F.A. Hayek, The Road to Serfdom (New York: Routledge, 2001), 72.
38 to detain them. In response, the Premier (and Attorney-General) of Quebec, Maurice
Duplessis, used the government's "discretion" under the provincial Liquor Act to revoke
Roncarelli's restaurant liquor license. The Supreme Court invalidated this action as a violation of the rule of law because there was no way to discern anywhere in the law that it prohibited the provision of bail money on religious grounds. Yes, the law did provide some discretionary power, but only with respect to purposes reasonably covered by a
Liquor Act, and this was not one of those purposes. "To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is ... beyond the scope of the discretion conferred," wrote Justice Rand. What could be more malicious," he continued, "than to punish this licencee for having done what he had an absolute right to do in a matter utterly irrelevant to the Liquor Act?"
Justice Rand insisted that under the rule of law there is no such thing as "untrammelled" executive discretion.102
Roncarelli v. Duplessis is justly celebrated as a major rights-protecting decision, even though it did not rely on a constitutionally entrenched bill of rights. True, it left the door open to the Duplessis government to enact a law explicitly punishing the provision of bail to Jehovah's Witnesses. But, as John Locke would have predicted, the government did not do this. For Locke, not only did the requirement of promulgated laws mean that people would "know their duty," thus making them "safe and secure within the limits of the law," but also that it would make it difficult for rulers to employ their power
"to such purposes, and by such measures, as they would not have known, and own not
Roncarelli v. Duplessis, SCR 121 (1959).
39 willingly." Duplessis was obviously prepared to oppress Jehovah's Witnesses behind the scenes or under the cover of legal vagueness, but he was unwilling to publicly "own" such oppression in the form of an explicit law. The judicial insistence that government be sufficiently explicit is no small protection of rights.
There was no way that Quebec's Liquor Act could plausibly have been read to prohibit bailing out Jehovah's Witnesses. But what happens if a law can quite plausibly be read as violating important rights? Here another judicial technique, known as
"interpretive avoidance," may come into play. In such cases one hopes that the law, while not so vague as to completely violate the "knowability" standard, is nevertheless sufficiently vague that the rights threatening interpretation is not the only plausible one. If more than one interpretation is available, the rule of interpretive avoidance is to "avoid" the one that threatens and choose the one that maintains a right.
An instructive case occurred in the Canadian case of Beaver v. R. 1957.104 Louis and Maxie Beaver were convicted for the possession and sale of heroin. The Opium and
Narcotic Drug Act, 1952 prohibited "possession" of heroin without a license. But what if the Beavers legitimately had not known that they were in possession of heroin? An important part of our legal system is, normally, the requirement of mens rea (or guilty mind) for serious criminal offenses. In other words, one has to consciously commit the criminal act. Injuring someone while sleepwalking, for example, would not constitute an assault. Was the crime of possessing heroin such a mens rea offense or was it a strict
John Locke, Second Treatise of Government, edited by C.B. Macpherson (Indianapolis Hackett Publishing Co., 1999 [1690]), at para 138. 104 R. v. Beaver, [1957] SCR 531.
40 liability offense in which intention did not matter and one would be guilty even if
someone else had planted the substance amongst one's possessions? The Court had to
decide this issue because the Beavers claimed that they sincerely believed the substance
in their possession to have been powdered milk, and that someone else must have
surreptitiously substituted heroin. If the Drug Act was an absolute liability law, this wouldn't matter and the Beavers would have been guilty anyway. If the Act was a mens rea law, on the other hand, the Beavers' claims would have to be assessed for credibility, and, if true, might ground an exculpatory defence. The law did not explicitly mention the mens rea requirement and could easily have been read as a strict liability law, as, indeed,
2 of the 5 person Supreme Court panel did. Since the law did not explicitly exclude mens rea, however, the Court's majority preferred to assume that this well established principle of criminal law must have been intended, thus avoiding the more draconian absolute liability interpretation. As Weiler observes, "the doctrine [of mens rea] is designed to protect the liberty of the citizen and to prevent the punishment of the innocent."105. This was too important a right to jettison without much more explicit legislative instruction.
As with the Roncarelli rule-of-law principle, the interpretive avoidance in Beaver left open an explicit legislative enactment of strict liability. Again, the efficacy of interpretive avoidance as a rights-protecting judicial strategy lies in the reluctance of legislatures to openly and explicitly reject well-established rights principles. Under such conditions, formally "weak" judicial intervention can be practically quite "strong."
Paul C. Weiler, In the Last Resort: A Critical Study of the Supreme Court of Canada (Toronto: Carswell/Methuen, 1974), 93.
41 What, then, if a court thinks a legislature has clearly and explicitly violated an important rights principle and none of the above strategies will work? Let us say that the issue does not concern one of the very few constitutional rights, and the law is too explicit either to infringe the promulgation principle or to sustain an alternative interpretation. In such cases, at least in the countries we have been considering (the
United States, Canada, and Australia), the federalism dimension of the entrenched constitution can be brought into play. Thus, when the Social Credit government of
Alberta enacted the Accurate News and Information Act in the 1930s to ensure
"newspaper presentation of [Alberta] Social Credit policy satisfied the government's criteria of accuracy,"106 the federal government referred the issue of its constitutionality to the Supreme Court. In Reference re: Alberta Statutes (1938), commonly known as the
Alberta Press Case, the Court's majority struck down the law on federalism grounds.107
The point here was not to prevent governments as such from enacting this kind of law but to take that power away from the enacting level of government, thereby allocating it to the other level. As Justice Cannon observed, "the federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press ... throughout the Dominion."108
Similarly, in 1957 the Supreme Court of Canada, in Switzman v. Elbling and the
Attorney General of Quebec,109 struck down Quebec's so-called "padlock law," which prohibited the use of buildings to propagate communism, on the grounds that the law
106 Russell, The Court and the Constitution: Leading Cases, 161. 107 Reference Re: Alberta Statutes SCR 100 (1938). 108 Ibid. 109 Switzman v. Elbling, SCR 285 (1957).
42 infringed on the criminal law power of the Federal Parliament. Only Ottawa could limit
the freedom of political expression in this way.
The federalism approach of protecting civil liberties is on one hand stronger than
either the rule-of-law or interpretive avoidance approaches because the enacting level of
government, having no jurisdiction, cannot more narrowly tailor the offending law. On
the other hand, powers denied to one level of government under this approach are
logically allocated to the other level. More seriously, perhaps, the federalism approach to
rights issues "force[s] judges to use the language of federalism when dealing with the
logic of civil liberties."110 For many observers, this has the result of confusing both civil-
liberties and federalism jurisprudence.
The civil liberties dimension of cases was more central in another jurisprudential
strategy employed occasionally by judges in both Canada and Australia: the so-called
"implied bill of rights." The argument here is that some rights, especially some of the classic politically relevant rights, such as freedom of speech, are inherent in the parliamentary systems of government established by the Canadian and Australian constitutions. In Canada's case, the argument is buttressed by the preamble of the British
North America Act, which announces "that Canada shall have a constitution similar in
Principle to the United Kingdom," which is also a parliamentary system with "unwritten"
F. L. Morton, Law, Politics and the Judicial Process in Canada, 3rd ed. (Calgary: University of Calgary Press, 2002), 481.
43 rights to freedom of speech and the like. The point, in short, was "to imply protection for the practices which support the democratic state."111
In Canada, the landmark judgment using this approach is Justice Duffs opinion in the Alberta Press Case. While a majority of the Court settled that case on federalism grounds (as mentioned above), Justice Duff led a minority that argued that the parliamentary system and the constitutional preamble grounded a "right of public debate" sufficiently strong to invalidate Alberta's Press law. Similarly, in Switzman, the Padlock law case, a minority of judges (Rand, Kellock and Abbott) supplemented the main federalism rationale for striking down the Padlock law with an implied bill of rights argument. The same happened in Saumur v. Quebec and Attorney General of Quebec,
1953,m where Saumur, a Jehovah's Witness, challenged the constitutional validity of a
Quebec City bylaw that prohibited the distribution of any book, pamphlet, or tract without the permission of the chief of police. Again, a majority of judges struck down the law for a variety of reasons, including federalism, and a minority of three (Justices Rand,
Kellock and Locke) argued in addition that the implied bill of rights protected "freedom of religion" from both levels of government.113
Notably, the implied bill of rights doctrine never attracted more than minority support in any Canadian case. Moreover, the minority judgments that did use implied rights applied them only against provinces, not the federal government. Although, the
Saumur minority opinion (penned by Justice Cartwright) suggested that implied rights
111 Samuel A. Bottomley, "Implied Constitutional Rights and the Growth of Judicial Activism" (MA, University of Calgary, 1997), 111. 112 Saumur v. Quebec and Attorney General of Quebec, [1953] 2 S.C.R. 299 (1959). 113 Russell, The Court and the Constitution: Leading Cases, 167-68.
44 might also apply against Ottawa, this was obiter in a case that turned on provincial legislation. Not only did the doctrine never ground a majority judgment by Canada's
Supreme Court, in other words, it was also never settled among its supporters whether it applied to Ottawa.
Neither of these limitations applied in Australia, where the doctrine of constitutionally implied rights came into its own much later but with greater strength. It was not until the early 1990s that the Australian High Court, led by Chief Justice Mason, advanced a right to freedom of political speech implied by the sections of the constitution implementing representative and responsible government, particularly sections 7 (Senate) and 24 (House of Representatives), which require the two houses of parliament be
"directly chosen by the people." On this basis, Nationwide News v. Willis (1992) struck down legislation banning the criticism of the Commonwealth industrial relations commissioners, while Australian Capital Television v. Commonwealth (1992) invalidated restrictions on political radio and television advertising during federal election campaigns.114 Unlike in Canada, implied constitutional rights in these Australian cases grounded majority judgments, and did so against the Commonwealth government.
In Canada, the weakness of the implied bill of rights doctrine in the 1950s coincided with the beginning of the worldwide movement toward codifying bills of rights. The view that implied constitutional rights were not doing the job was one of many factors that spurred this movement in Canada. A fully constitutional bill applicable to all levels of government was politically not in the cards at this point, but the movement
114 Nationwide News Pty Ltd. v. Willis, 1 CLR 177 (1992); Australian Capital Television Pty Ltd.v. Commonwealth, 177 CLR 106 (1992).
45 did generate the purely statutory "Canadian Bill of Rights" in 1960. As a statute of the federal government, this document applied only to the acts of that government. If implied constitutional rights had never applied against Ottawa, the 1960 Bill of Rights clearly did.
The Canadian Bill of Rights functioned primarily as a compendium of standards to guide the judicial technique of "interpretive avoidance." That is, faced with a choice between legal interpretations that conflicted with one or more provisions in the Bill of
Rights and ones that were consistent with the Bill, the courts should choose the latter.
This is the kind of "weak-form" judicial review provided nowadays by a number of commonwealth bills of rights. In Canada, a small number of rights victories were achieved in this way, though on the whole the courts were remarkably deferential to government policy under the Bill of Rights.
In theory, the Canadian Bill of Rights was not limited to such "weak-form" judicial review. If it was impossible to interpret a law as consistent with the Bill of Rights
- i.e., if a law clearly and unambiguously conflicted with the Bill - courts could in principle declare the law to be inoperative (if it did not include an explicit
"notwithstanding clause"). In other words, the Canadian Bill of Rights could sustain relatively "strong-form" judicial review. However, this happened only once, in the 1970
Drybones case. It is not widely known that the 1960 Bill of Rights remains in force, though it has clearly been eclipsed as a ground of action by the 1982 Charter of Rights and Freedoms.
If the implied bill of rights had been a disappointment to civil libertarians, so was the Canadian Bill of Rights. This led civil libertarians to promote a fully
46 constitutionalized rights document applicable to all levels of government. They found an
ally in Pierre Elliott Trudeau, who had endorsed constitutional rights as early as 1967.115
Trudeau became Prime Minister the next year and a constitutional Charter of Rights
became a centerpiece of his agenda throughout his long political career.116 Among other
things, Trudeau believed that that a constitutional bill of rights would enhance national
unity defined by a set of rights to hold both levels of government to account.117 The
fascinating story of Canada's adoption of the 1982 Charter of Rights and Freedoms is too
long and convoluted to detain us here.118 It is enough for our present purposes to note that this development finally set Canada and Australia on clearly different paths with respect to rights protection and judicial power.
Or did it? What about the doctrine of implied constitutional rights in Australia, which, as we have seen went much further than in Canada? Might not a strong implied bill of rights in Australia be more or less the equivalent in function and effect of the formally entrenched Canadian Charter of Rights and Freedoms? After all, implied constitutional rights come very close to explicitly entrenched ones. Unlike Roncarelli-
Pierre Elliott Trudeau, Federalism and the French Canadians (New York,: St. Martin's Press, 1968), 52- 60. 116 Pierre Elliott Trudeau, Against the Current: Selected Writings 1939-1996, edited by Gerard Pelletier, (Toronto: McClelland and Stewart, 1996), esp. 209-87. 117 Peter H. Russell, "The Political Theory Behind the New Canadian Constitution," (University of Toronto, 1982); , Constitutional Odyssey : Can Canadians Become a Sovereign People?, 3rd ed. (Toronto: University of Toronto Press, 2004); John T. Saywell, The Lawmakers : Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002); Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montreal and Kingston: McGill-Queens University Press, 2003). 118 Janet Hiebert, Charter Conflicts: What Is Parliament's Role? (Montreal: McGill-Queen's University Press, 2002); Kelly, Governing with the Charter : Legislative and Judicial Activism and Framers' Intent, Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue; Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?
47 style rule of law judgments or Beaver-style interpretive avoidance, judicial decisions based on constitutionally implied rights cannot be overridden by more explicit legislation.
Indeed, in theory implied rights could be stronger than those in Canada's explicit Charter, which (through section 33) allows legislatures to use a "notwithstanding" clause to override rights. Arguably, had the implied rights doctrine spread far enough and strongly enough in Australia, the distinction between that country and Canada on which this study focuses would disappear. But this has happened neither in Australia nor in other countries that, lacking an explicitly entrenched bill of rights, have experimented with implied rights, for at least two reasons.119 First, the collection of implied rights will be smaller than the list of rights contained in most explicit documents because one can imply only so much from the structures of democratic government. For example, freedom of expression is the right most obviously implied from parliamentary institutions, but freedom of expression thus derived would not obviously extend to, say, artistic freedom, as it tends to do when the right is explicitly entrenched.120 Second, the adventurous discovery and implementation of implied rights almost inevitably generates more controversy about its legitimacy than do rights that have been clearly and explicitly written into the constitution. It is thus not surprising that, on the whole, judges tend to be more cautious with implied than with explicitly entrenched rights.121 Thus, while Australian judges in the 1990s certainly pushed the "implied bill of rights" further than their Canadian counterparts during the 1950s, invalidations based on implied rights remain rare in
119 Bottomley, "Implied Constitutional Rights." 120 See for example: Ford v. Quebec, 2 S.C.R. 712 (1988), Irwin Toy v. Quebec, 1 S.C.R 927 (1989), R v. Butler, 1 S.C.R. 452 (1992). 121 Bottomley, "Implied Constitutional Rights."
48 Australia. Even when the doctrine is used, moreover, it does not as often sustain
activist judicial adventurism.
In sum, an independent judiciary is inevitably part of the overall system of
interinstitutional checks and balances outlined by the most influential of Anglo-American
founders. The judiciary played and continues to play a significant role in Canada. In
Australia, the courts remain primarily responsible for a non-bill of rights role. Thus in
comparing rights policy issues in Canada and Australia, we should expect judicial
activity to be robust. The comparison at the centre of our interest is between the "strong judicial review"123 enabled by constitutionally entrenched rights, and a policy process
grounded in more obviously political checks and balances.
Conclusion
There is a modern tendency to assume that bills of rights and the enhanced judicial power they generate are the norm. As we have seen however, this was not true in
Canada for much of its history and is still not true in Australia. In both countries, at least until 1982, many constitutional scholars and others strongly believed in the principle of responsible government for the protection of rights and liberties.124 This is not to suggest that the judiciary was not to play a role. Indeed, in all three countries discussed above, the courts would play an important role in the system of checks and balances. The critical
Galligan and Morton, "Australian Rights Protections." 123 Tushnet, "Forms of Judicial Review as Expression of Constitutional Patriotism." 124 It should be noted that there was also remarkable skepticism about the ability of Parliament to protect rights and freedoms. See for example: MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960.
49 question was whether or not the judiciary needs to be armed with a constitutionally
entrenched bill of rights.
Rights were protected in pre-Charter Canada through a number of techniques, the
unwritten constitution, interpretive avoidance, federalism and implied rights among them.
These techniques were also employed in Australia and remain the primary modes of judicial rights protection in that country. This sets up the critical difference between
Canada and Australia and the central question of the dissertation: which set of
institutional arrangements - political or judicial checks and balances - most often
achieves the moderate outcomes envisioned by checks and balances theorists? In the
next chapter I lay out a methodology to address this question.
50 CHAPTER 3: METHODOLOGY
Which set of arrangements - a regime with strong-form judicial review or one
without such review - best serves the end of policy moderation? Comparative research is
a particularly promising approach to answering this question, and the best comparative
research design follows Mill's "most similar" method125 As Dogan and Pelassy note, "a
comparison between relatively similar countries... is at the heart of the comparative
method."126 David Stewart affirms the appropriateness of Canada and Australia for this
kind of comparison, noting "[fjhose seeking comparison in the areas of federalism or
parliamentary government will find the Canada-Australia contrast hard to resist."127 Both
former British colonies, the two countries share a relatively common political culture;
each has a hybrid institutional structure based on the British and American models of
governance; both are advanced liberal democracies with healthy economies; and, of
course, both are federal.
Combine this with the fact that these two countries have recently taken explicitly
opposite sides of the bill-of-rights debate - Canada adopting a bill of rights and Australia
resisting - and they represent the only contemporary opportunity for empirically testing
this debate through comparison between acknowledged liberal democracies. The
125 John Stuart Mill, A System of Logic: Ratiocinative and Inductive (New York: Harper & Brothers Publishers, 1874). 126 Mattei Dogan and Dominique Pelassy, How to Compare Nations: Strategies in Comparative Politics, 2nd ed. (Chatham New Jersey: Chatham House Publishers Inc, 1990), 133. 127 David K. Stewart, "Comparing Party Systems in the Canadian Provinces and Australian States," in Parties and Federalism in Australia and Canada, ed. Campbell Sharman (Canberra: Federalism Research Centre, ANU, 1994), 186.
51 possibility for contemporary (rather than historical) comparison elsewhere is in rapid
decline as the world becomes increasingly reliant on judicial mechanisms for rights
protections.128 For the purposes of this research, the key institutional differences are that
Canada has a bill of rights while Australia does not, and that Australia has a bicameral
system, with an effective Senate that Canada lacks. This allows our comparison of
selected policy issues to hold nearly all but the institutional difference constant across
both countries. This institutional difference is the study's independent variable.
The dependent variable is the moderation of policy outcomes that emerge from
these different institutional contexts. But how do we operationalize the concept of policy
moderation, and what policy issues offer the most promising comparisons? This chapter
addresses these key methodological questions, beginning with the issue of issue selection.
Issue Selection
Selection of policy issues for comparative analysis is guided by four criteria. First,
the issues under consideration must have arisen when the institutional difference of
concern (Charter/Courts vs. Senate) was in place - i.e., since the 1982 adoption of the
Canadian Charter of Rights and Freedoms. Second, it is best if the issue was politically
engaged at about the same time in both countries, in order to minimize the confounding
For example see: Charles R. Epp, The Rights Revolution : Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998); Tom Ginsburg, Judicial Review in New Democracies : Constitutional Courts in Asian Cases (Cambridge, UK ; New York: Cambridge University Press, 2003); Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism.
52 effect of different time-dependent policy sensibilities. Third, the policy must be engaged by the same level of government to minimize the effects of federalism in both countries.
The fourth criterion, perhaps the most important, concerns the substantive content of the selected policy issues. The competing claims of institutional moderation with which we are concerned are obviously best tested with issues that arouse considerable, indeed passionate, public debate. This is most likely to occur in the context of what Smith and Tatalovich term "two sided moral controversies," "like abortion, school prayer and gay rights," which provoke deep conflict between divergent constituencies and interest groups."129 To fully appreciate the nature of these issues and the politics they tend to generate it is helpful to situate them in the typology of policy issues developed by
Theodore Lowi, and later modified and extended by such authors as Smith, Tatalovich, and Daynes. In its early version, Lowi's typology did not include moral issues, but has it has been expanded to encompass them.
In his seminal 1964 article,130 Lowi began with a simple question: "if all policies are coercive, it is possible that we can develop a meaningful, small set of policy categories by asking a prior question of jurisprudence: How many kinds of coercion are there?"131 Lowi concludes that each type of policy develops a distinct political structure over time. His typology consisted of three main types: distributive, regulatory and
T. Alexander Smith and Raymond Tatalovich, Cultures at War: Moral Conflicts in Western Democracies (Peterborough, Ont: Broadview Press, 2003), 16. 130 Theodore J. Lowi, "American Business, Public Policy, Case Studies, and Political Theory," World Politics 16, no. July (1964). 131 , "Forward: New Dimensions in Policy and Politics," in Moral Controversies in American Politics: Cases in Social Regulatory Policy, ed. Raymond Tatalovich and Bryon W. Daynes (London England: M.E. Sharpe, 1998).
53 redistributive. 132 Distributive policies, as the name suggests, involve the distribution of resources, such as land or defence procurement. Such policies are characterized by "the ease with which they can be disaggregated and dispensed unit by small unit, each unit more or less in isolation from other units and from any general rule... in many instances of distributive policy, the deprived cannot as a class be identified."133 This form of policy leads to a relatively non-conflictual style of politics. Rather than disagreement between constituencies, the politics of distribution lead to "log-rolling" coalitions and mutual non-interference.134 These types of decisions in and of themselves are not so much "public policy" as they are "individual decisions that only by accumulation can be called a policy."135 The allocation of defence contracts, for example, would easily fit in to this category.
The second type, regulatory policy, does not disburse resources directly to individualized, isolated units. Rather, it operates through the statement of general rules
("Get off the grass!" "Produce kosher if you advertise kosher"). True, regulations are implemented unit by unit, or individual by individual (e.g., in criminal law), but because this implementation involves the "application of a general rule," it affects the evolution of
"broader standards of law" that tend to apply to the similar fact situations presented by
132 Lowi later added a fourth category, constituent policy, which concerns government rules about structures of authority. In short, it deals with categories that confer some type of regulatory power to non governmental agencies (e.g. marketing boards). For our purposes, however, "morality policy" as a fourth policy type largely built off Lowi's three categories, rather than his four categories. For a discussion of the fourth category see: , "Four Systems of Policy, Politics and Choice," Public Administration Review 32, no. July-August (1972). 133 Lowi, "American Business, Public Policy, Case Studies, and Political Theory," 690. 134 Ibid. 135 Ibid. 136 Ibid.
54 entire "sectors." Thus "regulatory policies are usually disaggregable only down to the sectoral level."137 Moreover, "regulatory policies are distinguishable from distributive in that in the short run the regulatory decision involves a direct choice as to who will be indulged and who deprived." For example, "not all applicants for a single television channel or an overseas air route can be propitiated."138
Like regulatory policy, redistributive policy involves broad categories of actors, so that "individual decisions must be interrelated."139 But the categories are much broader, "approaching social classes."140 "They are, crudely speaking, haves and have- nots, bigness and smallness, bourgeoisie and proletariat."141 Thus, while redistributive policy, again like regulatory policy, involves obvious winners and losers in the short term, it does so on a more sweeping scale. The key distinction of redistributive policies is the redistribution of resources. Put another way, the redistribution of resources is directly financial. Progressive income taxes and welfare policies are examples.
Still missing from Lowi's typology, however, was a classification for policies that embody what James Christoph called "deep seated moral codes." In his study of capital punishment in the United Kingdom,142 Christoph observed that the process of abolition did not correspond to the standard Westminster Parliamentary practice of "rubber- stamping" the governing party's proposals. He noted that, "because of the high moral
137 Ibid. 138 Ibid. 690-1. 139 Ibid. 140 Ibid. 141 Ibid. 691. 142 James B. Christoph, "Capital Punishment and British Party Responsibility," Political Science Quarterly 77, no. July 1962(1962).
55 and emotional content of the dispute, government leaders often viewed it as a matter of private conscience [and thus were] freed from the ordinary claims of party cohesion and discipline."143 He concluded that certain types of moral policies (capital punishment, birth control, homosexuality) "plumb deep-seated moral codes" which people are unwilling to compromise.
Although Chrisoph's study predated Lowi's typology by two years, the kind of politics it describes was not explicitly part of Lowi's framework. Over time, a number of scholars suggested that Lowi's typology need not change to encompass morality policies.
Such policies, they argue, resemble redistributive policy in all facets except that the values involved are non-economic. They suggest that there is a redistribution of social values rather than economic goods. American political scientist Kenneth Meier is the intellectual leader of this group of scholars. He suggests that these policies (moral) are an attempt to regulate behaviour, and thus fit in to the redistribution category because they
"redistribute values instead of income."144 This approach has a number of followers, and is especially prevalent among those who use quantitative data.145
Critics of this approach suggest "that while governments can redistribute wealth by compulsion, they most assuredly cannot redistribute personal values."146 From this perspective, a new category is needed. Thus, in 1975, T. Alexander Smith added a fifth
143 Ibid. 32. 144 Kenneth J. Meier, The Politics of Sin : Drugs, Alcohol, and Public Policy, Bureaucracies, Public Administration, and Public Policy. (Armonk, N.Y.: M.E. Sharpe, 1994), 4. 145 For example see: D. P. Haider-Markel, "Morality Policy and Individual Level Political Behavior: The Case of Legislative Voting on Lesbian and Gay Issues," Policy Studies Journal 27, no. 4 (1999); M. S. Miceli, "Morality Politics Vs. Identity Politics: Framing Processes and Competition among Christian Right and Gay Social Movement Organizations," Sociological Forum 20, no. 4 (2005); K. B. Smith, "Clean Thoughts and Dirty Minds: The Politics of Porn," Policy Studies Journal 27, no. 4 (1999). 146 Smith and Tatalovich, Cultures at War: Moral Conflicts in Western Democracies, 15.
56 category emotive symbolic. Smith argued that these types of policies "generate
emotional support for deeply held [non-economic] values."148 In short, Smith argues that
"moral" politics are different because they target individual behaviour which is often at
odds with traditional societal norms.
Similarly, Tatalovich and Daynes argue that because "what is being regulated is
not an economic transaction, but a social relationship,"149 the politics and the processes
surrounding social and economic regulation have little in common. They note, for
example, that unlike economic disputes, where conservatives defend against "liberal"
government intervention, moral politics find conservatives defending the status quo and
liberals promoting increased liberty. They conclude that as a consequence "moral
conservatives want individual freedoms subordinated to community norms, whereas
liberals defend personal liberties from the majority."150 This study agrees with Tatalovich
and Daynes, not only because the content of this policy category seems sufficiently
distinct but because it, much more than other policy areas, generates a politics that relies
heavily on the courtroom. I will use the terms "moral politics" to designate this policy realm.
Lowi himself emphasized the intimate connection between kinds of policy and kinds of institutional politics. Far from stopping at categorizing policies, his 1964 article went on to argue that "policy determines politics." By this, he meant that each type of
T. Alexander Smith, The Comparative Policy Process (Santa Barbara, CA: CLIO Press, 1975). 148 Ibid. 90. 149 Raymond Tatalovich and Byron W. Daynes, Moral Controversies in American Politics: Cases in Social Regulatory Policy (Armonk,N.Y.: M.E. Sharpe, 1998). 150 Tatalovich and Daynes, "Introduction," xxv.
57 policy in his typology has characteristic forms of political and institutional expression.
The kind of institutional expression is related to the nature, scope, and intensity of political conflict generated by each policy category. Because of the highly disaggregated allocation of resources characteristic of "distributive policy" - and the corollary that the
"deprived" are not easily identified - these policies tend to create log rolling coalitions and reduced inter-personal conflicts:
In the distributive arena, political relationships approximate what Schattschneider called "mutual non-interference" - "a mutuality under which it is proper for each to seek duties [indulgences] for himself but improper and unfair to oppose duties [indulgences] sought by others.151
Accordingly, Lowi suggests, distributive politics, in the United States, are most often played out in Congressional Committees.
Regulatory policies, by contrast, being less specific and individual in their impact, raise broader sectoral conflicts (with more obvious winners and losers) and thus generate different and less stable coalitions.153 While the log-rolling coalition typical of distributive policy is "not one forged of conflict compromise, and tangential interest but
... one composed of members who have absolutely nothing in common,"15 the direct, sectoral "confrontation of the indulged and deprived" in the regulatory arena generates coalitions "born of conflict and compromise."155 These broader conflicts and compromises can be worked out only in a broader institutional forum. Thus, Lowi found
151 Lowi, "American Business, Public Policy, Case Studies, and Political Theory,"693. 152 Ibid. 691-93 153 Ibid. 695 154 Ibid. 693
58 that the decision-making process tended to "pass from administrative agencies and
Congressional committees to Congress [proper], the place where uncertainties in the policy process have always been settled."15
Redistributive policy involves conflicts between the even broader categories of
social class. The redistribution of wealth from one social class to another through taxation and subsidy results in policies which are "fundamentally elitist." This is due in large part to the fact they "cut closer than any others along class lines and activate interests in what are roughly class terms."157 These class interests activate negotiations between elite-driven peak associations such as chambers of commerce and labour unions.
What kinds of politics are produced by moral politics? Here the starting point is the fact that, unlike Lowi's other policy types, moral policies are characterized by the absence of an objective, economic self-interest; this drives political elites to act in unorthodox ways. A majority of participants engaged in moral struggles are not moved by profit, but rather by arguments of liberty, equality and principle. These principle- driven motives depend on cultural and philosophical justifications which are not easily tempered through reason or typical democratic debate. This is especially true for what
Smith and Tatalovich call two sided moral debates. Two-sided moral conflicts "like abortion, school prayer and gay rights... provoke deep conflict between divergent constituencies and interest groups."158 By contrast, the "politics of sin, which, for
Ibid. 699. Ibid. 707. Smith and Tatalovich, Cultures at War: Moral Conflicts in Western Democracies, 16.
59 example, include drunk-driving, drug abuse and murder"159 pose one-sided moral issues
where virtually everyone is onside with the issue at least as far as the policy objective is
concerned. Meier, from whom Smith and Tatalovich draw their distinction, notes that
"no one is willing to stand up for sin" and "opposition [to one-sided morality] is the
equivalent of joining the other side at Armageddon."160
Studlar similarly emphasizes the "campaigns into crusades" character of two-
sided moral conflicts. Such conflicts, he says, raise a:
debate framed in terms of fundamental rights and values, often stemming from religious imperatives, by competing promotional groups whose members have little or no direct economic interest in the outcome. Advocates invest considerable emotional capital in the values they want their society and government to promote or protect. These issues are non-technical in the sense that they do not require specialized expertise to hold an "informed" opinion. For these reasons, most morality policy issues have relatively high public visibility.16
Studlar further notes morality politics are "[c]onflict[s] of basic identities... including nationality, race, religions, language, ethnicity and sexual identity."162
Although Lowi himself prefers to think of this kind of intense moral politics as a kind of policy radicalism that can also apply to some of the other forms of politics, he agrees that it tends to lead to highly polarized politics. Figure 1 shows how Lowi distinguishes between "mainstream politics" and this kind of "radical politics."
159 Ibid. 160 Kenneth J. Meier, "Drugs, Sex, and Rock and Roll: A Theory of Morality Politics," Policy Studies Journal 27, no. 4 (1999), 683-85. 161 Donley T. Studlar, "What Constitutes Motality Policy? A Cross-National Analysis," in The Public Clash of Private Values: The Politics of Morality Policy, ed. Christopher Z Mooney (New York: Seven Bridges Press, 2001), 39. 162 Ibid.
60 Figure 1: Mainstream and Radical Politics
Consensus on short-term, practical goals produces politics of
Mainstream
Left Absolute moral positions mobilize populations around ends; Right tending toward polarization; anti-compromise, "moral politics"
Radical
Moral politics, in terms of this figure, could take mainstream forms, in which the emphasis is on compromising positions expressed in utilitarian rather than moral terms.
On prostitution, for example, while the "mainstreamer may consider [it] immoral, the mainstream public position would be that prostitution should be regulated as to its potential for disease or its association with drugs and abduction."163 Such formulations invite compromises and tradeoffs; it is possible to find legitimate positions in the
Lowi, "Forward: New Dimensions in Policy and Politics," xvi.
61 clustered middle of the continuum. The radical, by contrast, tends to emphasize less compromisable moral positions. "From the radical left, prostitution is a sinful product of a sinful economic system,"164 while "for the radical right it is a sinful expression of bad character." For the moralistic libertarian, one might add, behaviour between consenting adults is none of the state's business.
From the moralistic perspective, there is no viable middle ground. Instead, acceptable positions (fewer in number) tend to cluster bimodally. Despite the theoretical possibility of mainstream politics on what have been called two-sided moral issues, they typically, as Lowi recognizes, generate the kind of polarization depicted in the lower half of Figure 1. He notes that moral policy advocates often refuse "to join what most of us consider mainstream political processes, insisting instead on trying to convey political issues into moral polarities, claims into rights, legislation into litigation, grays into blacks and whites, and campaigns into causes and crusades."165As Lowi notes, the tendency of two-sided morality issues to turn "campaigns into crusades" leads to unconventional political behaviour including judicial action and civil protests.166 In other words, just as distributive policies find their political expression in Congressional committees, and regulatory policies in Congress as a whole, so two-sided morality policies are often taken out of the political arena into the judicial arena.
Put another way, moral policy tends to take policy disputes out of representative institutions and into the courts. For purposes of this study, which attempts to compare the
164 Ibid. 165 Ibid., xiv. 166 Raymond Tatalovich, T Alexander Smith, and Michael P Bobic, "Moral Conflict and the Policy Process," Policy Currents 4, no. 4 (1994).
62 effect of legislative and judicial processes on policy outcomes, the court-oriented dimension of two-sided moral issues is an obvious reason for focussing on such issues.
Moreover, the same characteristics that drive two-sided morality issues into the courtroom also increase the need for moderation. Clearly, two-sided moral issues provide the best test for the debate about which institutional system is most likely to produce policy moderation.
Just as clearly, the comparison of regimes at either end of the continuum between
strong and weak judicial review is a particularly appropriate way of addressing this debate. As Mildred Schwartz notes "[w]hen moral interests are successful in taking their case to the Constitution," as they can in regimes of strong judicial review, "they have the means of incorporating their view of conduct into the core of political values."167 This obviously raises the stakes and, it is often argued, gives strong, constitutionally based judicial review an especially polarizing tendency. Mary Ann Glendon, for example, is well known for her discussions of constitutionally based and judicially focused rights talk
"increas[ing] the likeliness of conflict and inhibit[ing] the sort of dialogue that is increasingly necessary in pluralistic society."168 The obvious implication is that regimes with weaker judicial review, especially regimes (like Australia) with no bill of rights, are less subject to polarized debate and thus more likely to produce moderate outcomes. That is precisely the claim that this study attempts to test.
Mildred A Schwartz, "Politics and Moral Causes in Canada and the United States," Comparative Social Research 4 (1981). 168 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991), 44-45.
63 Applying the case-selection criteria set out above, we are looking for two-sided moral issues that arose after 1982, and during roughly the same time frames, in both
Canada and Australia. As it turns out, meeting the same-time-period criterion is not difficult. Two-sided moral issues tend to come in waves, with particular issues becoming publicly significant at roughly the same time around the liberal democratic world.
Beginning in the early to mid-1980s (except the United States which was earlier) the regulation of abortion came to prominence in many established democracies. In the next decade, euthanasia dominated international headlines. By the 2000s the gay rights movement, eventually advocating for same-sex marriage, came to the fore. Looking forward it appears that polygamy looms on the policy horizon.
These and related issues tend to involve predictable and familiar clashing principles of the kind that energize passionate moral politics. Occupying one side in contemporary moral controversies is libertarianism, with its insistence that individual liberty and choice be publicly constrained only to avoid demonstrable and direct harm to other individuals. This libertarian viewpoint is clearly present in debates about euthanasia, same-sex marriage, and polygamy, as well as those about censorship of pornography, prostitution, and drug policy. On the other side of these debates we typically find so-called "social conservatives." Social conservatives certainly engage libertarians on their own ground, as when they insist that abortion harms individual human individuals in the ultimate way, by killing them. In this case, the real debate is about who counts as a human person rather than about the libertarian standard of harm.
But social conservatives often challenge the libertarian standard itself, insisting that the
64 state may appropriately act to defend beneficial public mores or the social fabric. Harm to individuals certainly remains part of the social conservative calculus inasmuch as they believe that the social mores at issue prevent such harm and that their decline will, over time, lead to more harm to individuals; nevertheless, social conservatives obviously define harm more broadly and are prepared to publicly intervene at some remove from immediate, direct harm to individuals. This study compares how two of these issues - euthanasia and same sex marriage - have played out in Canada and Australia.
The debate between libertarianism and social conservatism often concerns what should or should not be criminalized. Social conservatives, for example, tend to support the criminalization of pornography and various drugs, while libertarians promote decriminalization. But, of course, there are many crimes - murder, assault, theft, etc. - that are not in themselves in dispute, because the direct harm involved is obvious. With respect to such acknowledged crimes, the characteristic moral clash concerns the purpose and scope of penal sanctions. A critical part of this clash concerns the contrary principles of retribution and rehabilitation. Thus the capital punishment controversy - which, as we have seen, initiated the move to incorporate moral issues in Lowi's set of categories - clearly involved, on one side, rejection of the claim that murderers should be put beyond redemption or rehabilitation and, on the other, insistence on the retributionist principle of
"an eye for an eye" (also a mainstay of social conservatism). (Obviously other arguments, such as the danger of erroneous convictions, also played a major role.) Capital punishment is no longer on the mainstream policy agenda of either Canada or Australia
65 (despite a recent poll showing a majority of Canadians in favour), and is thus not an appropriate comparative case for this study. However, related moral controversies concerning punishment continue to arise in waves around the liberal democratic world.
Our third comparative case study concerns one of them: prisoner voting rights. Indeed, this is the first of the case studies to be treated in Chapter 4.
Operationalizing Moderation
The other major methodological issue in this study concerns how to operationalize the concept of policy moderation. This is at once easy and difficult with respect to the kinds of moral issues under consideration. It is easy to the extent that public policies on these issues tend to fall along a continuum between two intransigent poles. It is difficult to the extent that, from the perspective of either polar position, where passions tend to run high, allegedly middle-ground compromises are actually strategic positions of the other pole. This is the perspective of Lowi's "radicals" in Figure 1, for whom the middle ground represents a defeat. Viewed from either pole, so called moderates, or middle ground compromisers are sliding - wittingly or unwittingly - down the slippery slope to the opposite pole.170
169 Ken MacQueen, "What Canadians Really Believe," Macleans, November 20 (2009). 170 The use of the term "continuum" will no doubt be contentious. However, with its use I do not imply any measurement. Indeed, my use should not be confused with those continuum theories used in the natural sciences which explore a gradual quantitative transition without abrupt changes. Rather, my use of the continuum is much more pedestrian providing only a heuristic device for my readers. For a full explanation of continuum theories in the natural sciences see: JK. Grant, A. R. Taylor, J. M. Stil, T. L. Landecker, R. Kothes, R. R. Ransom, and Douglas Scott, "The Drao Plank Deep Fields: The Polarization Properties of Radio Galaxies at 1.4 Ghz," The Astrophysical Journal 714, no. 2 (2010).
66 No doubt, there are some issues on which there can be no moderate middle
(slavery comes to mind). If James Madison is right, however, it is a natural human tendency to inflate to this level of intransigent opposition disagreements that do not warrant it. "The most frivolous and fanciful distinctions," he says, are "sufficient to...excite [the] most violent conflicts."171 Thus, while recognizing the difficulties and pitfalls involved, this project adopts as its working definition of "moderation" on moral issues any position that falls between the two most intransigent poles of the policy continuum.
The well known two-sided issue of abortion provides a convenient illustration. At one pole of the policy spectrum is the prohibition of abortion under all (or almost all) circumstances. At the other pole is complete abortion on demand. In between is a variety of policies that permit abortion subject to certain constraints. They might, for example, allow abortion if necessary to protect the life and health of the pregnant woman, but not otherwise. Similarly, they might require a waiting period or some counselling before an abortion is performed. The level and degree of any constraints on abortion might also vary with the stages of pregnancy, with later stages being subject to greater restrictions.
Although policies between the two polar extremes obviously vary in the balance struck between freedom and constraint, this study treats them all as falling within its operationalization of "moderation." More refined classification is no doubt possible, but its complexities can be left to future analysis. The same kind of simple continuum will be set out for each of the comparative policy issues chosen for this study.
171 Hamilton et al., Federalist Papers, 52.
67 Public opinion may provide some support for this operationalization of morality on two-sided morality issues. Although one should expect activists on these issues to portray things in the polarized manner described in the lower half of Figure 1, public opinion is often "less intense with respect to social litigation"172 than activist opinion.
That is, public opinion may more closely reflect the tendency of "mainstream" politics to perceive and favour the cluster of middle ground positions depicted in the upper half of
Figure 1. If public opinion reflects such moderation, that would certainly help establish the operationalization of "moderate middle." Again, abortion provides a relevant example. Although the polar extremes tend to dominate public debate on the issue, many polls show significant public support for middle ground positions.173 Wherever it is available, therefore, I will examine relevant public opinion on the case-study issues.
In additional to its relevance to operationalizing the concept of moderation, a review of public opinion also has the benefit of illuminating the potential influence of political culture on policy outcomes. As indicated, this study's attempt to isolate the effect of certain institutional factors on public policy is facilitated by the comparison of
Canada and Australia, which differ on the institutional dimension of interest, but which are otherwise broadly similar. "Broadly similar," does not mean identical, however. We should thus remain alert to differences in political culture that might compete with
Tatalovich and Daynes, "Introduction," xxix. 173 For example, Gallup asked in May 2010 "do you think abortions should be legal under any circumstances, legal under only certain circumstances, or illegal in all circumstances." Respondents answered 24 per cent in favour of legal under all circumstances, 19 per cent illegal in all circumstances, and 54 per cent legal under certain circumstances. N=1029. These trends have held consistent since 1976 when Gallup first asked the question. For the full report see: Gallup, "Abortion," (2010), http://www.gallup.eom/poll/1576/Abortion.aspx#l.
68 institutional factors as plausible explanations for different policy outcomes. Public
opinion on the case-study policy issues is one measure of political culture. To the extent
that Canadian and Australian public opinion on our three issues is similar, our confidence
in institutional explanations of different policy outcomes increases. By the same token,
institutional explanations will carry less weight to the extent that different policy
outcomes track significant differences in public opinion.
Coming back to the "middle-ground" operationalization of moderation,
confidence in this approach is also strengthened when other liberal democracies occupy
middle-ground positions on the policy continuum, especially if these positions are the
result of recent debates rather than the decisions of bygone eras, maintained only by
inertia. In the case of abortion, for example, many countries have in recent decades
adopted middle ground positions. Accordingly, for each of the case studies selected, I
will conduct a review of where other liberal democracies place themselves on the
relevant policy continuum. This comparison will determine whether the moral issues
under consideration are a matter of contention across acknowledged liberal states, with a
variety of positions existing as viable middle-ground options.
One can perhaps be even more confident that plausible middle-ground policy
options exist if, within and across regimes with judicially enforced constitutional rights, judges themselves take different positions on the continuum. In a single regime, this may
happen among judges at different levels and in different courts, or, more dramatically,
among the several judges of the highest court of appeal. Across liberal democratic states,
we may also see different national judiciaries taking quite different positions in their
69 interpretation of very similar (even identical) constitutional wording. Again, this might require some assessment of the degree of judicial consensus or dissensus among and within judiciaries (or some subset of them) that are significantly armed with constitutionally entrenched rights.
Guided by this set of operationalization criteria, each of the case-study chapters begins by establishing both the polar extremes and the moderate middle for the selected policy issue. The analysis in each chapter then turns to a detailed comparison of how the selected issues have fared as they worked their way through the different institutional regimes of Canada and Australia. Using public document analysis - Court decisions and
Parliamentary Hansard -1 trace the how each set of institutional arrangements affected the moderate middle outcome. For example, in Canada with strong-form judicial review
I begin by tracing the policy through each "dialogue" between Parliament and the Court ending with where the policy finally comes to rest on the continuum. Similarly in
Australia, I trace the iterations of the policy process through both houses of Parliament
(and, indeed, through the courts if applicable).This analysis will enable us to assess the competing institutional regimes of Canada and Australia - the first placing greater emphasis on judicial power under an entrenched strong-form bill of rights, and the second preferring to emphasize such political checks as bicameralism, while continuing to rely on a more traditional judicial role, shed light on which of these regimes is more likely to achieve the moderating influences envisioned by checks and balances theorists.
While the case-study approach employed in this work will shed light on the debate about which kind of institutional regime best achieves policy moderation, it
70 cannot be expected to fully and clearly settle that debate. Any particular case study
always risks highlighting idiosyncratic rather than generalizable findings. This risk
declines as the number of case studies grows, but it remains strong with only a small handful of cases, such as the three undertaken in this study. Case studies do have their
own distinct advantages, however. While they are unlikely to settle a theoretical debate, the rich detail they provide can help refine and nuance the debate itself. Such refinement
is one of the aims of this study. The next three chapters are devoted to the case studies, beginning with the issue of prisoner voting.
71 CHAPTER 4: PRISONER VOTING
Article 21 of the United Nations Universal Declaration of Human Rights states that, "[e] very one has the right to take part in the government of his country, directly or through freely chosen representatives."174 The core of this right is the near universal suffrage achieved in western liberal democratic countries through successive waves of reform. Barriers such as gender, property qualifications and race were gradually removed, allowing everyone outside of prisons and mental institutions to cast a ballot.
This chapter asks which of the competing institutional structures under consideration -
Canada with its Charter-enhanced judicial power or Australia with its greater reliance on non-judicial checks and balances - has better served the end of policy moderation on this issue of "moral politics."
The chapter begins by elaborating the clashing moral principles that animate the controversy about prisoner voting. Then, following the methodological framework set out in the previous chapter, I develop the policy continuum for this issue, identifying the moderate middle ground between the polar extremes, and asking whether this middle ground finds support in comparative public policy, comparative judicial opinion, and public opinion. Finally, the chapter explores in detail the fate of this issue as it worked its way through the Canadian and Australian institutional structures.
United Nations, "The Universal Declaration of Human Rights" (1948).
72 Prisoner Voting as Moral Politics
Chapter 3 indicated that the prisoner voting issue involved the clash between the
rehabilitative and retributionist approaches to penal sanctions, making the issue a modern
successor to the capital punishment debate, an early and classic moral issue, which was
settled before the adoption of the Charter of Rights. Here it is helpful briefly to establish
a broader context for the debate about retribution and rehabilitation. There are, in fact,
four widely acknowledged purposes of penal sanctions, not just two.175 The four are
incapacitation, deterrence, rehabilitation, and retribution. Incapacitation makes it difficult
or impossible for an offender to commit additional crimes. Capital punishment is
obviously the ultimate incapacitation, but incarceration prevents additional crimes against
individuals in the general population (though not necessarily against others also
incarcerated) for as long as the offender is behind bars. Deterrence is typically divided
into "general" and "specific" deterrence. General deterrence occurs when the punishment
inflicted on a particular offender inspires fear of similar punishment in others and thus
deters those others. Specific deterrence occurs when the offender who has been punished refrains from new offences for fear of repeat punishment. Rehabilitation seeks to reform
or "cure" offenders from their criminal inclinations.
The fourth purpose of penal sanctions, retribution, tends to be the most controversial nowadays, though it remains thoroughly embedded in the penal system.
Like deterrence, retribution seeks to "punish" rather than "cure," but it insists fundamentally on proportionality between punishment and offence. As indicated in
R v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045, at para 104.
73 chapter 1, it reflects the famous "eye for an eye" principle, though that formulation is
generally seen as a metaphor for proportionality rather than a literal injunction. Thus,
even if general deterrence of petty theft could be achieved by the lopping off of hands, or
petty kleptomania could be cured only by long years of in-prison rehabilitation, our sense
of retributionist proportionality stands against both. Similarly, if we were entirely
confident that a murderer had been fully rehabilitated in, say, six months, or that killings
of passion could not be deterred, the retributionist sense of proportionality would still
insist on significant punishment.176
In the case of prisoner voting, disenfranchising prisoners is not a matter of
incapacitation, unless the offender's crime involves something like voting fraud. Most prohibitions of prisoner voting are much broader than that. For someone convicted of theft or assault a prisoner voting disqualification does not in any way incapacitate the
repetition of these crimes.
Nor can a prisoner voting disqualification plausibly be considered a deterrent.
Low and declining rates of voting say something about the importance of the vote in peoples' lives. It is possible that for some individuals a voting disqualification would be a very painful and thus deterring deprivation, but it is difficult to imagine that very many
such individuals exist, or that they are prominent among incarcerated offenders.
Thus, of the four purposes of penal sanctions, retribution and rehabilitation tend to dominate the controversy about prisoner voting. Certainly, the prisoner voting debate is
Knopff and Morton, Charter Politics, 319-21.
74 more squarely focused on these two principles than the capital punishment debate, which more obviously involves all four principles.
Why do retributionists believe that a prisoner voting disqualification contributes to the proportionality between offence and punishment that they seek? The usual answer is framed in terms of social contract theory. In short, having the right to participate, through democratic processes, in the law's formation entails the obligation to abide by the resulting laws. Accordingly, if one breaks those laws, it is an entirely appropriate part of the punishment to be deprived of one's lawmaking function for the duration of one's incarceration. To put it another way, for many people it violates a sense of proportionality for lawbreakers to be lawmakers. It certainly violated that sense of proportionality for
Immanuel Kant, who wrote:
In my role as colegislator making the penal law, I cannot be the same person who, as a subject, is punished by the law; for, as a subject who is also a criminal, I cannot have a voice in legislation.177
For the rehabilitationist, by contrast, depriving prisoners of the vote is to abandon one of the most useful tools of social re-integration. What better way, asks the proponent of rehabilitation, to take offenders outside of their self-centred concerns and inclinations and to connect them to the concerns of the wider community than by encouraging them to take an active interest in public affairs through voting?
177 Immanuel Kant, "The Metaphysical Elements of Justice," in The Metaphysics of Morals, ed. John Ladd (Indianapolis: Bobbs-Merrill, 1978), 105. For a review of how the thought of other philosophers bears on the question of prisoner voting see Zdravko Planinc, "Should Imprisoned Criminals Have a Constitutional Right to Vote?" Canadian Journal of Law and Society 2 (1987).
75 These are the clashing and often intensely held positions in the two-sided moral
debate about prisoner voting rights. When the British government recently conducted a
small survey on whether to base prisoner disqualification on the length of sentence - i.e.,
whether only prisoners sentenced to "longer" sentences should be disqualified - it noted
the "heavily polarized nature of the responses." In the survey, "the majority of
respondents made strong representations for the introduction of either full
enfranchisement... or continuing with the UK's current policy of total
disenfranchisement."178
In fact, public opinion on prisoner voting is not as clear-cut as this small survey
suggests, and I will further explore public opinion below. Here I simply wish to emphasize both the sense of polarization between two extremes - the kind of polarization characteristic of two-sided moral issues - and also the existence of a middle ground.
These characteristics of moral politics are present in debates about prisoner voting rights not just in Britain but wherever the issue has arisen in recent decades. The next section sets out in more detail the relevant policy continuum.
Prisoner Voting: The Policy Continuum
Table 1 helps to sort out the poles and the middle ground on this controversial issue.
Ministry of Justice, "Voting Rights of Convicted Prisoners Detained within the United Kingdom," (London: Westminister Parliament, 2009).
76 Table 1: Prisoner Voting Policy Alternatives Which prisoners are All prisoners "Serious offenders " No prisoners are disqualified? ("blanket (often defined by length disqualified (all can disqualification ") of sentence) vote) How are they Automatically upon • Automatically n/a disqualified? incarceration upon incarceration, or • through judicial discretion For how long are Duration of • Duration of n/a they disqualified? incarceration incarceration, or • duration of sentence (i.e., including any parole period), or • beyond completion of sentence
As Table 1 indicates, prisoner disqualifications tend to vary along three dimensions. The first row identifies the most obvious way of characterizing the policy continuum. Here we see that one of the two poles of the policy continuum is the disqualification of anyone who is imprisoned for any purpose and for any length of time.
This includes both the murderer and the petty offender serving a few days in jail in lieu of paying a fine. This was the established British policy that the government was reconsidering. This has been referred to as a "blanket" disqualification, in the sense that it covers all those who happen to be incarcerated on election day.179 Thus the European
Chrisopher P. Manfredi, "In Defense of Prisoner Disenfranchisement," in Criminal Disenfranchisement in an International Perspective, ed. Alec C. Ewald, and Brandon Rottinhaus (Cambridge: Cambrisdge University Press, 2009); Sauve v. Canada (Chief Electoral Officer) 3S.C.R. 519, at para 51 (2002).
77 Court of Human Rights (ECHR) refers to the "blanket disqualification [of prisoners], irrespective of sentence length and gravity of their offence."180
At the opposite end of the continuum is the enfranchisement of all prisoners, however serious the crime and however long the incarceration, as some of the British respondents recommended. In the "moderate middle" are policies that disqualify only
"more serious" offenders as defined by their length of incarceration. This was the middle ground the British government was exploring.
The second row of the table reflects the main mechanisms used by regimes to trigger a prisoner disqualification. Obviously, if, under a "blanket" disqualification, no one who happens to be incarcerated on election day can vote, the disqualification is automatically entailed by the fact of incarceration itself. Regimes that disqualify only more serious offenders sometimes also make the disqualification an automatic corollary of imprisonment. In other cases, however, whether to impose the disqualification is left to judicial sentencing discretion, usually using guidelines set out in the criminal law.
The third row of Table 1 reflects the different durations of disqualification imposed by various regimes. At the most liberal end of this dimension are disqualifications that last only as long as the incarceration itself. As soon as the offender is released, even if that release occurs by way of parole before the official end of the sentence, the vote is returned. In other cases, the disqualification lasts throughout any
Hirst v. Hm Attorney General, EWHC 239 (2001) at para 41. It is important to note that the disqualification "blanket," as I am using that term, does not cover offenders who are outside of prison on election day because of bail, probation, parole, completion of sentence, etc. As the table and subsequent analysis reveals, the issue of disqualification beyond or outside of incarceration on election day is a separate and multi-faceted one.
78 parole period, with the vote returned only after the end of the full sentence. In still other cases, the disqualification persists for periods beyond the end of the sentence; in the most extreme cases it is a lifelong disqualification.
The Moderate Middle in Comparative Context
Clearly, a moderate middle ground exists between the polar extremes of either complete enfranchisement or complete disenfranchisement of prisoners (sometimes even beyond the end of their sentence). How does this middle ground fare in comparative public policy, comparative judicial opinion, and public opinion?
Comparative Policies
What stands out immediately in a comparison of liberal democratic policies on this issue is the wide variety of legal arrangements. For example, seventeen European states have no restrictions on prisoner voting - Austria, Denmark, Finland, Germany,
Iceland, Netherlands, Sweden and Switzerland among them.181 However, a wide degree of franchise restriction persists. Indeed, some countries, including Greece, Malta,
Luxembourg and Norway, have explicit constitutional provisions restricting the franchise. Here is section 51(3) of the Greek constitution:
The Law cannot abridge the right to vote except in cases where minimum voting age has not been attained or if there
181 The other countries that allow all prisoners to vote include: Albania, Croatia, Czech Republic, Ireland, Lithuania, Macedonia, Montenegro, Serbia, and Slovenia. For a longer discussion see: Laleh Ispahani, "Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws," in Criminal Disenfranchisement in an International Perspective, ed. Alec C. Ewald, and Brandon Rottinghaus (New York: Cambridge University Press, 2009), esp. 26-29.
79 is a disability in lawful acts or as a result of irrevocable criminal conviction for certain felonies.182
In Luxembourg, article 53 of the constitution reads as follows:
The following may not be electors or eligible: 1) persons sentenced to criminal punishment, 2) persons sentenced for minor offenses depriving them of the right to vote, 3) persons of full age under guardianship.
Malta's constitution sets out in Section 58(b) that:
No person shall be qualified to be registered as a voter...if (b) he is under sentence of death imposed on him by any court in Malta or is serving a sentence of imprisonment exceeding twelve months...or is under such a sentence of imprisonment the execution of which has been suspended.184
And in Norway Section 53(a) of the constitution reads:
The right of voting shall be lost in the case of any person who: a) is sentenced for criminal offences, subject to such 1 RS provisions as may be laid down by law.
Such constitutional provisions typically must be supplemented by
legislation. In Greece, for example, the "certain felonies" that can lead to
disenfranchisement need to be legislatively spelled out. More generally, where
constitutional provisions specify disenfranchisement for "criminal" offences, it is
criminal-law legislation that defines the offences. In the case of Norway, the
constitutional disqualification is explicitly made "subject to such provisions as may be
laid down by law." And, of course, where constitutions do not explicitly provide for
Government of Greece, "The Constitution of Greece," http://www.hri.Org/docs/syntagma/artcl80.html#A51. 183 Government of Luembourg, "Luxembourg Constitution," http://www.servat.unibe.ch/icl/luOOOOO_.html. 184 Government of Malta, "Constitution of Malta," http://www.legal-malta.com/law/constitution-6.htm. 185 Government of Norway, "Norway Constitution," http://www.servat.unibe.ch/icl/noOOOOO_.html.
80 prisoner disqualification, such disqualifications (if any) exist by virtue of legislation
alone. What does a review of the relevant legislation tell us?
It tells us most obviously that blanket disqualifications, of the kind being reconsidered by Britain, are relatively rare. Belgium comes close, imposing a voting disqualification on offenders incarcerated for four months or more.186 Many other regimes, however, situate themselves more clearly in the middle of Table l's first row.
Poland and Italy disenfranchise those prisoners serving more than 3 and 5 years respectively.187 More liberal still is Greece, where the constitution explicitly permits disenfranchisement, but which legislatively disqualifies only prisoners who are serving sentences longer than 10 years.188
Some Anglo-American countries also employ the sentence-length voting disqualification. New Zealand, for example, disqualifies those prisoners serving 3 years or longer. In the United States, where criminal law is a state matter, states typically disqualify only "felons," not those who commit the lesser category of offences known as
"misdemeanors." Felony convictions are those crimes which involve a criminal sentence of one year or longer, while misdemeanors entail sentences of less than a year. Only two states - Maine and Vermont - allow felons to vote.189 The other 48 states disenfranchise those prisoners serving felony convictions.
Ispahani, "Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws," 30. 187 Ibid. 188 Ibid.
81 In those countries where disqualification is based on the length of sentence,
disqualification is an automatic corollary of imprisonment for the specified term.190 In
other countries, however, the disqualification is a matter of judicial discretion. In France,
for example, a prisoner may be (not must be) disenfranchised as part of their sentence if they committed crimes such as corruption, forgery, or embezzlement. In Norway191 and
Poland, sentencing judges may disenfranchise prisoners for overtly political crimes such
as treason, electoral fraud, and voter intimidation.
Once a disqualification is imposed, how long does it last? The third row of Table
1 outlines the main alternatives. In many cases, the disqualification lasts only for the
duration of actual incarceration and does not extend to any period of parole. This is the case in New Zealand, Belgium, Greece, Luxembourg and Italy.192 Several US jurisdictions also employ this method of automatic enfranchisement upon release from prison, including District of Columbia, Hawaii, Illinois, Indiana, Massachusetts,
Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode
Island and Utah.193
In other cases, disqualification extends to the official end of a sentence, including any period of parole. In California, for example, both the state constitution (Article II,
Section 4) and the California Elections Code (Section 2101) prohibit voting by those
190 Ispahani, "Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws," 29. 191 Ibid. Ispahani suggests that even with the constitutional provisions in Norway, prisoner disenfranchisement is "very rare." 192 Ibid. 193 American Civil Liberties Union, "Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. And Other Democracies," http://www.aclu.org/images/asset_upload_file825_25663.pdf.
82 individuals serving a felony sentence or on parole from such a sentence. Full voting rights are restored upon completion of the official sentence. States with similar laws include Colorado, Connecticut, New York, and South Dakota.
In still other cases, some US states disenfranchise those felons who are on probation. Probation should not be confused with parole. Parole is granted to felons for
"good behavior" and they are allowed to serve the rest of their sentence out of prison.
Probation, by contrast, is given to offenders in lieu of a prison sentence and is usually accompanied by more narrowly tailored restrictions. In these cases, it is expected that states who disenfranchise probationers also disenfranchise those in prison and on parole.
Those US states which disenfranchise probationers include Alaska, Arkansas, Idaho,
Kansas, Oklahoma, and Wisconsin.
Finally, in some cases, the voting disqualification extends beyond completion of the full sentence. Here again, Belgium stands out as particularly stringent among
European countries. As noted above, Belgium disqualifies prisoners serving sentences as low as four months. In addition, it disqualifies offenders for periods longer than their sentences. For offenders serving sentences of between four months and three years, the voting disqualification lasts for six years, while those serving sentences of between three and five years are disqualified for twelve years. Similarly, in the United States, some states institute a mandatory post-sentence waiting period after which time ex-felons can apply to have their franchise restored (e.g., two years in Nebraska).195
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=02001-03000&file=2100-2124. 195 American Civil Liberties Union, "Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. And Other Democracies."
83 Some jurisdictions even provide for lifelong disqualifications in specified circumstances. Thus, in Belgium, if a sentence is longer than five years, the disqualification may be lifelong. It should be noted that "sentences longer than five years
[are] awarded rarely and only for extremely serious crimes."196 Similarly, in the United
States, nine states permanently deny voting to certain types of violent offenders (e.g.,
Tennessee disenfranchises murders and rapists permanently).197
Nor is the widespread practice of prisoner voting disqualification in much of the liberal democratic world necessarily a hold-over from earlier and more "prejudiced" ages.
Recall from chapter 1 that confidence in the bona fides of a "middle ground" position are best established not just by the fact that such positions are held by a significant number of liberal democracies, but even more if adoption of these positions is the result of recent debates rather than the decisions of bygone eras, maintained only by inertia. In fact, a great many of the existing disqualifications have been legislatively confirmed within recent years. This is certainly true of those US states who recently liberalized their prisoner enfranchisement laws while retaining the principle and substance of some disqualification. Reform began in the 1970s when, for example, California (in 1974) changed from a lifelong voting disqualification for convicted felons to a disqualification that lasted for the duration of the sentence. More recently, in 2001, Connecticut amended its disenfranchisement laws in an even more liberal direction, giving voting
Ispahani, "Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws," 30. 197 American Civil Liberties Union, "Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. And Other Democracies."
84 rights to convicted felons on probation.19* But, of course, this retained disqualification while still in prison. Not all states have been prepared to go as far as Connecticut. Thus,
Alabama passed a law in 2003 that permits most felons to apply for a certificate of
eligibility to register to vote after completing their sentence.199 This liberalized the state's previous lifetime disqualification, but, again, it retained the principle of disqualification
while in prison.
New Zealand's situation is similar. That country most recently addressed the issue
of prisoner disenfranchisement in the Election Act 1993. Prior to this, New Zealand's
Electoral Act 1956 imposed a blanket voting disqualification upon "any person detained
in any penal institution pursuant to a conviction." With the adoption of the Bill of Rights
Act 1990 (BORA), questions of compatibility between BORA and prisoner
enfranchisement emerged. Under the terms and conditions of BORA (section 4), the
High Court of New Zealand cannot strike down legislation. Section 7 of BORA requires the Attorney General (the senior law officer) to indicate to the House of Representatives
if a provision of a bill is inconsistent with BORA.200 Prior to the debate in 1993, the Law
Reform Division (the division in charge of bringing statutes in line with BORA) requested
an opinion on whether blanket disenfranchisement of prisoners was inconsistent with
BORA. Then Solicitor-General (the junior law officer) John McGrath indicated that blanket disqualification of prisoners was a violation of Section 12 of BORA, and thus,
198 D. L. McMiller, "The Campaign to Restore the Voting Rights of People Convicted of a Felony and Sentenced to Probation in Connecticut," American Behavioural Scientist 51, no. 5 (2008). 199 Sentencing Project, "Felony Disenfranchisement Laws in the United States," http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_fdlawsinus.pdf. 200 Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, esp. 24- 27.
85 should be amended by Parliament.201 He suggested that, "some differentiation on the basis of the seriousness of the offence [would] avoid the problem... That is, prisoners who following conviction have been sentenced to a term of three years or more should not be allowed to vote."202 This was the position adopted by the New Zealand Parliament
in the Election Act 1993, and to date compatibility of the BORA and prisoner
disenfranchisement has not been subsequently addressed. Again, while there was
certainly significant liberalization in New Zealand, the principle of disqualification for more serious offences, as defined in this case by length of sentence, was clearly maintained.
As noted above, Britain is also considering the liberalization of its prisoner disqualification. Britain had confirmed its longstanding "blanket" disqualification of prisoners as late as the Representation of the People Act, 1983 with a clause that read: "a convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election."203 Currently, Britain is moving toward a disqualification based on sentence length. Again, the principle of some disqualification in the middle ground is maintained.
201 The Solicitor-General exercises all of the functions of the Attorney-General but is seen as the non- political advisor. In this case it would be prudent for the non-political advisor to provide advice on a moral issue such as prisoner voting. Section 12 [Electoral Rights] of the Bill of Rights Acts reads in toto: Every New Zealand citizen who is of or over the age of 18 years: a) Has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot; and b) Is qualified for membership of the House of Representatives. (http://www.hrc.co.nz/index.php?p=453.) 202 John McGrath, "Opinion on Consistency between New Zealand Bill of Rights Act and Restrictions on Prisoners' Voting Rights," http://www.crownlaw.govt.nz/uploads/prisoners.pdf. 203 Hirst v. Hm Attorney General.
86 There has even been some recent legislative support for blanket prisoner
disqualifications, or something very close to them. Thus in 1999 South Africa turned its
de facto policy of disqualifying prisoners by not providing them with practical
opportunities to register or vote into explicitly legal form, with one small liberalization.
The liberalization was to allow offenders to vote if they were incarcerated in lieu of paying a fine. Similarly, as we shall see below, the principle of blanket disqualification
received significant recent government support in Australia.
Judicial Opinion
If blanket disqualifications continue to get some support from governments and
legislatures, they get virtually none from judges. At the same time, there is no distinct
international judicial move to the other end of the policy continuum: complete enfranchisement of all prisoners. In the judicial as in the legislative realm, the middle continues to hold.
The case of Richardson v. Ramirez (1974) remains the landmark US Supreme
Court case dealing with prisoner voting.204 At issue in Richardson was the 1849
California policy, which provided for lifelong disenfranchisement of all felons. The case did not raise the issue of blanket disqualification because the law only disqualified felons.
At the same time, although counsel sought to challenge all disqualification, the challenge directly posed by the situation of the ex-felon litigants was to the disqualification beyond the end of the sentence. In a 6-3 decision, the Court, upheld the constitutionality of even
Richardson v Ramirez, 418 U.S. 24 (1974).
87 such lifelong disqualification of felons. Moreover, the dissenting three judges maintained only that lifelong disqualification was unconstitutional, not that the constitution barred any kind of disqualification.
Despite criticism, Richardson remains the leading precedent for prisoner voting in the US. It obviously leaves the issue of reform entirely to the legislative process.
Indeed, that was a key point for Justice Rehnquist, who wrote the majority judgment.
Rehnquist acknowledged that the case for lifelong disqualification may be outdated but insisted that legal change was the responsibility of the legislatures, not the Supreme
Court. Thus it has been the state legislatures, in California and elsewhere, that have driven the process of reform on this issue in the United States.
In other countries, the judiciary has played a more central role in policy reform, especially in precipitating the move away from blanket disqualifications. This was certainly true in Britain, which, given its recent (1983) reaffirmation of blanket disqualification, might not have moved away from it without judicial prompting. As part of the European Union, Britain is subject to the European Convention on Human Rights.
In 1998, Britain passed the Human Rights Act 1998 which gave British courts the authority to rule on a potential breach of a Convention right. John Hirst, who was serving a sentence for manslaughter, challenged the validity of the British prisoner disqualification based on Article 3 of the ECHR. Article 3 reads, "The High Contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the
205 Frank Askin, "Essay: Disfranchising Felons (or, How William Rehnquist Earned His Stripes)," Rutgers Law Review 59, no. 4 (Summer) (2007).
88 choice of the legislature." In 2001, in the case of Hirst v Attorney General (Hirst I), the
British High Court upheld the ban on prisoner disenfranchisement, concluding that
Parliament and not the Court should change the law.206 Said Justice Kennedy,
"parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed."207
Hirst appealed the decision to the European Court of Human Rights (ECHR). In
Hirst v. United Kingdom (no. 2), a 12-5 majority of the ECHR held "the severe measure of disenfranchisement must... not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned." Note here the ECHR's reliance on the retributionist principle of proportionality between crime and punishment.
For the ECHR, disenfranchisement was no small thing. Indeed, it was a "severe" punishment, and thus appropriate only for serious offences. Disenfranchisement was inappropriately disproportional in the case of petty offences, which would be included under a blanket disqualification. The Court concluded that a "blanket disqualification
[of prisoners], irrespective of sentence length and gravity of their offence" was unacceptable under Article 3 [right to free elections] of Protocol No. I.209 The decision, however, left the door open for Westminster to pass a more "proportional" (or more
206 Hirst v. Hm Attorney General at para 41. 207 Isobel White, "Convicted Prisoners and the Franchise," http://www.parliament.uk/commons/lib/research/notes/snpc-01764.pdf. 208 Hirst v United Kingdom (No. 2), ECHR 681 (2005). 209 Ibid.
89 narrowly tailored) prisoner disenfranchisement provision. Indeed, the Court
acknowledged that some criminal acts are sufficiently serious to warrant
disenfranchisement.210 This decision, in short, clearly left open a policy somewhere in the
middle ground. It was in response to this decision that Britain began investigating a
disqualification based on length of sentence.
In the aftermath of the Hirst decision Ireland found itself in a position where there was no legal bar to voting in prison but also no arrangement for prisoners to vote. In
2006, Ireland passed legislation that allows "postal voting, with the votes counted in the prisoners' home districts."21' In other words, the Hirst decision shifted Ireland to the most liberal pole - allowing all prisoners to vote.
In South Africa the judiciary played a similar role in prompting the
aforementioned 1999 reform and legalization of the prisoner disqualification. Section 19 of the South African Constitution outlines the political rights of South Africans, including
sub-section 3 which states, "every adult citizen has the right: to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret." In
August v. Electoral Commission (1999), the South African Constitutional Court ruled that without legislation explicitly disenfranchising prisoners, the state must provide the ability for prisoners to register and vote. "Parliament cannot by its silence [the absence of enabling legislation] deprive any prisoner of the right to vote. Nor can its silence be interpreted to empower or require the Commission or the Court to decide which category
210 Ibid, at para 77. 211 Claire Hamilton, and Rick Lines, "The Campaign for Prisoner Voting Rights in Ireland," in Criminal Disenfranchisement in an International Perspective, ed. Alec C. Ewald, and Brandon Rottinghaus (Cambridge: Cambridge University Press, 2009), 213-17.
90 of prisoners, if any, should be deprived of the vote."212 This decision looks much like the invitation to inter-institutional "dialogue" that is so much discussed by Canadian scholars. As can be the case under section 1 of the Charter, the Court appeared to be saying to the South African Parliament that they could perhaps have a disqualification but not by indirect, non-legislative means. One might also see echoes of Roncar ell i-style rule of law principles in this decision. In any case, the South African Parliament quickly accepted the apparent invitation to dialogue by amending the 1998 Electoral Act to disenfranchise anyone serving a "sentence of imprisonment without the option of paying a fine."213
The inter-institutional dialogue in South Africa did not end there, however.
Indeed, it likely would not end in Britain either if the British government loosened up its blanket disqualification only to permit voting by those incarcerated on voting day in lieu of paying a fine for a fairly petty offence. One suspects that this would still have been too
"disproportional" for the European Court. If we look at the South African situation through the judicial lens provided by the European Court, then, we might expect a subsequent judicial decision demanding further reform in the direction of the middle ground, with the disqualification based, for example, on length of sentence. Instead, the
South African Court moved the law, in one fell swoop, all the way to the other pole of the policy continuum: complete enfranchisement of prisoners.
212 August and Another v Electoral Commission and Others 4 BCLR 363 1 April (1999); Hirst v Hm Attorney General at para 33.
91 In a 9-2 decision, the Court found there was no rational connection between the government's objectives and the disenfranchisement of prisoners. The majority concluded "prisoners [have] the constitutional right to vote, and the Commission had no power to disenfranchise them by failing to make adequate provisions for this vote."214 In short, while the overall trend of judicial opinion seems hospitable to the middle ground, as represented by the legislative mainstream, the 2004 South African decision is a clear exception to the rule. This may be due in part to the recent history of South Africa. In recent memory, the majority of the population, Black South Africans, were broadly disenfranchised. More to the point, Black South Africans were overrepresented in prisons in addition to being disenfranchised.215 A second exception to the broad trend of judicial opinon on prisoner voting is, as we shall see, the 2002 Canadian Supreme Court judgment on prisoner voting rights.
Public Opinion
What about public opinion? Are middle ground positions as well reflected in public opinion as they are in legislative and judicial opinion? Lowi taught us to expect polarized activists but a more moderate "mainstream" on two-sided moral issues. Early in this chapter, we saw a small British poll that suggested that there was no moderate mainstream, that public opinion was highly polarized. To repeat, the report on this poll
Minister of Home Affairs v. National Institute for Crime Prevention and the Re-Integration of Offenders (Nicro), 5 BLCR445 (2004) at para 42. 215 Lukas and Julia Sloth Nielsen Muntingh, "The Ballot as a Bulwark: Prisoners' Right to Vote in South Africa," in Criminal Disenfranchisement in an International Perspective, ed. Alec C. Ewald, and Brandon Rottinghaus (Cambridge: Cambridge University Press, 2009).
92 concluded that "the majority of respondents made strong representations for the
introduction of either full enfranchisement... or continuing with the UK's current policy
of total disenfranchisement"216 - that is, the majority was not found anywhere in the
middle. In fact, that poll, perhaps because it was so small, does not appear to be
representative. While public opinion data based on larger polls is sparse and based mostly
in the U.S., those U.S. data indicate that there is broad-based support for some restriction
on the franchise for prisoners and a rejection of disenfranchisement for ex-offenders.
Much of the public opinion data on prisoner voting was undertaken in the
aftermath of the Bush v Gore (2000) decision. It was suggested that if ex-felons were
able to vote in Florida, "Al Gore would have defeated George W. Bush by between 10,
000 and 85, 000 votes."217 (Florida is one of the states that imposes a lifelong
disqualification.) Not surprisingly, this led to polling about support for such lifelong voting bans. Brian Pinaire and his collaborators find that data "do not support the permanent disenfranchisement of convicted felons (emphasis in original)"218 Data
indicated that "81.7 % of those surveyed support the return of the franchise at some point." At the same time, however, only 9.9 per cent of those surveyed supported
complete enfranchisement of all prisoners and offenders.219 Jeff Manza and his collaborators indicate similar results. They found that 68 per cent of Americans support
Ministry of Justice, "Voting Rights of Convicted Prisoners Detained within the United Kingdom," 14. The question asked: "Do you support the proposal that enfranchisement of detained prisoners should be determined by reference to the length of sentence they receive? N=50. 217 Brian Pinaire, Milton Heumann, and Laura Bilotta, "Barred from the Vote: Public Attitudes toward the Disenfranchisement of Felons," Fordham Urban Law Journal 30 (2002-03): 1519. 218 Ibid. 1545.
93 returning the franchise to ex-felons but only 31 per cent support allowing prisoners to
vote.220 They conclude that Americans "appear to draw a distinction between imprisoned
offenders versus those who are living in a community" when it comes to restoring the
franchise.221 Indeed, as Pinaire notes "a majority of Americans are somewhere in the
middle."222
To the best of my knowledge, we lack similar polling in other countries,
including, unfortunately, Canada and Australia. This means that we lack one important
way to assess the degree to which different policy outcomes in the two countries might be
caused by different political cultures rather than different institutional structures. Still, the
data we do possess are at least are consistent with what appears from a comparison of
legislative policies and judicial opinions, namely, that there is indeed a solid middle
ground on prisoner voting issues. This middle ground rejects both complete enfranchisment of all prisoners and blanket disqualification of them, preferring to
disqualify only more "serious" offenders, typically defined in terms of the length of their
sentence. Similarly, although the disqualification of "more serious" prisoners sometimes
extends beyond completion of the sentence, up to and including lifelong disqualification, there is discernible movement toward disqualifications that do not outlast the sentence, and perhaps even end with parole.
Clearly what was identified in purely logical terms as the moderate middle ground earlier in this chapter has a significant and substantial grounding in liberal democratic
220 Jeff Manza, Clem Brooks, and Christopher Uggen, "Public Attitudes toward Felon Disenfranchisement in the United States," Public Opinion Quarterly 68, no. 2 (2004): 280. 221 Ibid. 222 Pinaire, "Barred from the Vote: Public Attitudes toward the Disenfranchisement of Felons," 1545.
94 practice and opinion. How has it fared in the different institutional contexts of Canada
and Australia?
The Shifting Middle: Prisoner Voting Rights in Australia
Unlike many other jurisdictions, including Britain, Canada, and New Zealand,
Australia, has never - save for one recent interlude (discussed below) - had a blanket voting disqualification for prisoners. From the beginning, with the Franchise Bill of
1902, Australia has occupied a middle position on the policy continuum, with a length- of-sentence-based disqualification. That said, the initial position of the Australians was close to the conservative pole, establishing the threshold at one-year or longer. In recent decades, this initial 1-year threshold has been liberalized and adjusted, with cut offs ranging from 3-5 years. Complete enfranchisement of prisoners has received some legislative support but has never passed. Even the several unsuccessful attempts to entrench the right to vote in the Australian Constitution, beginning in 1968, were typically qualified by clauses permitting the Commonwealth or the States to restrict the voting rights of those of "unsound mind" and of prisoners.224
The first significant liberalization of the law was achieved by the Commonwealth
Electoral Legislation Amendment Act 1983 which extended the franchise so that
Senate and House of Representatives, "Debates," (1902), 11579, Ministry of Justice, "Voting Rights of Convicted Prisoners Detained within the United Kingdom." 224 Government of Australia, "First Report of the Constitutional Commission I" (Canberra, 1988). I: 202.
95 prisoners were only denied the right to vote when the length of imprisonment carried a
minimum five-year imprisonment.225
In 1986 a more dramatic liberalization was proposed, one that would have taken
Australia close to the liberal pole of the continuum. In that year, the Joint Standing
Committee on Electoral Matters recommended that all sentenced offenders, except those convicted of treason or treachery should be allowed to vote in Commonwealth elections. The reform recommended by the Joint Committee was driven by administrative ease and the belief that "prisoner voting did not promote any type of rehabilitation."227 Clearly, the principle of retribution played no role in this recommendation. The Hawke Labor government, which had replaced the Fraser
Government (Liberal/National Coalition) after a rare double dissolution of parliament, tried to implement that recommendation but was foiled by the Senate, which was controlled by the Liberal-National Coalition after the election.228 Here we see the Senate pulling policy back from one of the poles into the middle ground.
The 1988 the Joint Select Committee on Electoral Reform, reflecting the Labor composition of the committee, recommended the abolition of the federal inmate disqualification.229 Following the Committee's lead, the Labor Government justified the bill by "emphasizing the rehabilitative role of criminal law to encourage prisoners to
225 Commonwealth Electoral Legislation Amendment Act, 1983: Section 23. 226 For a definition of Treason and Treachery see: Government of Australia The Attorney-General's Department, "Crimes Act," http://scaletext.law.gov.aU/html/pasteact/0/28/0/PA004900.htm (esp. ss. 24- 24AA). 227 Jennifer Norberry, Voters and the Franchise: The Federal Story, , Laws and Bills Digest Group Research Paper No. 17 2001-02 (Canberra:: Department of the Parliamentary Library, 2002). 228 Senate and House of Representatives, "Debates," (1989), 2438. 229 Ibid. 1:222.
96 fulfil a civic duty." This proposal failed by one vote in the Senate, 29 in favour, 30
against.231 So did a 1993 proposal by the Joint Standing Committee on Electoral Matters
to disqualify only those convicted treason or treachery. Although the Keating Labor
Government introduced an amendment to this effect in 1995,232 the Deputy Prime
Minister Kim Beazley quickly announced that the Government would not be proceeding
with the amendment and would instead "look at ways of streamlining the current
arrangements."233
In 1996, with the installation of the Howard Liberal/National Government, things
took a dramatic turn. For the first time, Australia had a government strongly committed to the conservative pole of the policy continuum. The Howard government wanted to
impose a blanket disqualification on all prisoner voting. In taking this position in the mid-
1990s, the Howard government was clearly bucking the international trend.
Reflecting the new partisan alignment, the Joint (House-Senate) Standing
Committee issued a report congenial to the Howard government. The majority
commented that:
This committee believes that its predecessor's recommendation was entirely inappropriate. While rehabilitation is an important aspect of imprisonment, equally important is the concept of deterrence, seeking by denial or a range of freedoms to provide a disincentive to crime. Those who disregard Commonwealth or State laws
Graeme Orr, and George Williams, "The People's Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia," Election Law Journal 8, no. 2 (2009): 127. 231 Ibid. 232Norberry, Voters and the Franchise: The Federal Story, 20. 233 Ibid. 20.
97 to a degree sufficient to warrant imprisonment should not retain the franchise.234
When the Howard Government introduced legislation to implement this recommendation,235 all the relevant provisions contained in the bill were defeated and withdrawn by the Government. The defeat was due, in part, to the Labor Controlled
Senate which again emerges as the defender of the moderate middle against one of the polar extremes.
In the Joint House-Senate Standing Committee report on the 1998 election, prisoner-voting rights were once again considered, but the outcome was less extreme.
The majority report supported the view of some of its predecessors that restrictions be tightened beyond five-year restriction. However, it cautiously noted, "the current (1986) legislation should stand until there is sufficient and widespread public support for a change."236
The Howard government did not agree. In March 2001, it tabled a response to the
Joint Committee's report stating that:
the government wishes to take the opportunity to foreshadow that it will [also] be pursuing the following reforms: Abolition of the vote for prisoners. The government believes that this matter, a recommendation of the JSCEM report into the 1996 election, should again be pursued. At present, only prisoners serving a sentence of five years or more lose their right to vote. The government
Joint Standing Committee on Electoral Matters, "The 1996 Federal Election. Report of the Inquiry into the Conduct of the 1996 Federal Election and Matters Related Thereto," (Australian Government Printing Service, 1997), 48. 235 Norberry, "Voters and the Franchise," 20. 236 Ibid. 20.
98 believes that the right to vote should be revoked for all 237
prisoners.
Clearly, the Howard government was dedicated to the conservative extreme of the policy continuum.
On 1 April 2004, the government moved to implement this absolute position on prisoner voting.238 Again, the moderating Senate came to the rescue; however, this time it did not maintain the more liberal status quo. The provision to completely disenfranchise prisoners was amended in the Senate debate on a motion of the Australian
Labor Party Senator John Faulkner, with the support of the Green Party, to disenfranchise only prisoners serving three years or more.239 Faulkner's amendment was supported by the government and it passed without division (a formal vote).240 When pressed by Bob
Brown (Greens), Faulkner concluded that he "did not expect the opposition's amendment would be carried but it was."241 This compromise was brokered to ensure that prisoners would be disenfranchised at least once in an election cycle. A three-year ban was a narrowing of the earlier five-year ban of 1986, but not the complete disenfranchisement that was desired by the Howard Government.
To this point, we see the traditional role of the Senate as a moderating influence over the House of Representatives. This moderating influence is due to the partisan alignment of the differing chambers, and just as the early American Founders predicted,
237 Ibid. 21. 238 Bills Digest No. 136 Government of Australia, "Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004," ed. Information and Research Services (2004). 239 Senate of Australia, "Debates," (2004), 32605. 240 Colin A. Hughes, and Brian Costar, Limiting Democracy: The Erosion of Electoral Rights in Australia (Sydney: University of New South Wales Press Ltd., 2006), 82. 241 Ibid.
99 checks and balances between the overtly political branches do achieve moderate rights- policy outcomes.
Following the Howard Government's successful 2004 re-election, in which they gained control over the Senate by one member, the issue of prisoner voting once again came to the fore. In September 2005, the Joint Standing Committee on Electoral Matters
(JSCEM) recommended "that persons sentenced to a period of full-time imprisonment
should not be allowed to vote during that time and urges the Government to pursue this through legislative change as soon as possible"242 - in short, a blanket disqualification.
On May 10 2006, in response to the JSCEM report, the Howard Government introduced the Electoral and Referendum Amendment (Electoral Integrity and Other
Measures) Act 2006. During second reading Special Minister of State Gary Nairn outlined the government's position:
"[w]ith respect to prisoner voting, the government remains firmly of the view that people who commit offences against society sufficient to warrant a prison term should not, while they are serving that prison term, be entitled to vote and elect the leaders of the society whose laws they have disregarded."243
This time, because of its control of the Senate, the government was successful, and blanket prisoner disenfranchisement was enshrined in the Electoral and Referendum
242 Tony Smith, (chair), "The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto," Commonwealth Parliament, http://www.aph.gov.au/house/committee/em/elect04/report/fullreport.pdf. 243 Commonwealth of Australia, "House of Representatives Hansard," Commonwealth of Australia, http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?id=2564725&table=HANSARDR.
100 Amendment Act, assented to on June 22" 2006. Approximately 20,000 prisoners were disenfranchised.244
This was not the end of the story, however. In a dramatic (and to some surprising) move, the High Court stepped into the breach, with clearly moderating results. As noted in chapter 2, the courts can play an important role in policy "dialogues" even without a constitutionally entrenched bill of rights. Common law rules of interpretation, for example, can often have a significant effect. In addition, where there is a written constitution entrenching, say, parliamentary government, courts can sometimes "imply" relevant entrenched rights (though they tend to use them more cautiously and explicitly entrenched rights). This is clearly what happened in Australia.
The newly minted blanket disqualification was challenged on constitutional grounds by Vickie Lee Roach, a 49 year old aboriginal woman who was serving a sentence for negligently causing serious injury in a car accident. She was entitled (and required) to enrol on the electoral role, but because of her incarceration, she was unable to vote. She claimed this was a violation of sections 7 and 24 of the Constitution, which specify that members of the House of Representatives and the Senate, respectively, are
"directly chosen by the people."
Constitutional case law had cultivated two rival conceptions of what Parliament could do in relation to the franchise. The first theory emphasized parliamentary supremacy. The alternative theory underscored the evolutionary nature of the constitution, in which changes become manifest over time through convention. Both
Hughes, Limiting Democracy.
101 conceptions focused on sections 7, 24, 8, 51 (xxxvi), and 30 of the Constitution. As just
noted, sections 7 and 24 require that members of the House of Representatives and the
Senate be chosen "directly by the people." Sections 8, 51 (xxxvi), and 30 make
Parliament responsible for making laws for the qualification of electors.
The parliamentary supremacy interpretation focuses on the recurring
constitutional phrase "until Parliament otherwise provides."245 Supporters of this view
argue that it is clearly in the purview of the Commonwealth Parliament to broaden and restrict the franchise as the government sees fit. Indeed, the most important advances in the history of the Australian franchise were driven by the Commonwealth Parliament.
For example, the most important features of Australian democracy: compulsory voting, preferential balloting, proportional representation in the Senate, and the extension of the
franchise to women and minorities, are not constitutionally entrenched, but rather a
function of legislative action.246
Constitutional case law underlines this point. In Lange v Australian
Broadcasting Corporation (1997) the High Court observed that the Constitution provides the "fundamental features of representative government," but cautioned that a great deal of latitude is given to Parliament to fill in the details.247 In McGinty v Western Australia
(1996) Chief Justice Brennan considered the phrase "directly chosen by the people" as
admitting a requirement "of a franchise that is held generally by all adults or all adult
By my count, the phrase "until Parliament otherwise provides" appears in the Australian Constitution 21 times. For the purposes of this study, we are most interested in sections 7,24, 30 and 51. 246 See for example: Galligan, A Federal Republic : Australia's Constitutional System of Government, Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament. 247 Lange v Australian Broadcasting Corporation, 189 CLR 520 (1997).
102 citizens unless there be substantial reasons for excluding them" (emphasis added).
Finally, in Mulholland v Electoral Commissioner (2004) Chief Justice Gleeson remarked that the constitution has requirements for senators and members of the House of
Representatives to be chosen "directly by the people;" however, this constitutional requirement only "imposes a basic condition of democratic processes but leaves substantial room for parliamentary choice and for change from time to time."249 Taken as a whole, these features of the case law suggest that Parliament should be given substantial latitude in relation to the franchise.
The alternative interpretation relies on the evolutionary nature of the Constitution.
To borrow a phrase from Canadian case law, "the constitution is a living tree capable of growth and expansion within its natural limits." 25° In this interpretation the Australian constitution has evolved in such a way as to entrench an implied right to vote. This is not to suggest that the Justices have "read in" such a constitutional right, but rather the language of the constitution itself was broad enough to cultivate the development of the right.
Again, Australian public law had developed in such a way as to support this second view. In McKinlay, Justices McTiernan and Jacobs argued "the long established universal adult suffrage may now be recognized as a fact."251 Moreover, the words
"chosen by the people of the commonwealth" in section 24 were to be applied to different
248 McGinty v Western Australia, 186 CLR 140 (1996), at para 14. 249 Mulholland v Australian Electoral Commission 220 CLR 181 (2004), at para 14. 250 Edwards v. A.G. of Canada, A.C. 124 (1930). I'm indebted to Rainer Knopff for reminding of this line of constitutional thought. 251 Quoted in Mcginty v Western Australia, at 6.
103 circumstances at different times.252 They concluded that anything less than universal adult suffrage could not be described as choice by the people.253 Justice Toohey in
McGinty expressed a similar view:
[i]n 1900, the popular perception of what this entailed was certainly different to the current perceptions. For instance, the franchise did not include all, or even a majority, of the population. But according to today's standards, a system which denied universal adult franchise would fall short of a basic requirement of representative government.254
Thus, the question posed in Roach v Electoral Commissioner was whether the accepted norm of universal franchise, a basic requirement of representative government, entailed a right to vote for prisoners.
The Court split 4-2. Chief Justice Gleeson delivered the main majority opinion, with Justices Gummow, Kirby, and Crennan adding a separate concurring opinion.
Justices Hayne and Heydon delivered separate dissenting judgements, while the seventh judge, Justice Callinan, did not participate because of impending retirement.
The Chief Justice accepted the evolutionary account of sections 7 and 24 of the
Constitution, maintaining that they have, over time, "come to be a constitutional protection of the right to vote."255 Parliament, he conceded, has the authority to place some exceptions on this right, but he insists that disenfranchising "any group of adult
252 Ibid. 253 Ibid. 254 Ibid, at 29. 255 Roach v Electoral Commissioner, 43 HCA, at para. 7 (2007).
104 citizens" without "substantial reason... would not be consistent with choice by the people."256
The question then, is what would constitute a "substantial reason"? The Chief
Justice suggests there needs to be a "rational connection" between the definition of the excluded class and either capacity to exercise free choice or the demonstrated commitment to the community. He concludes that a rational connection for disenfranchising prisoners may be found in "conduct which manifests such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right."257 Note that not any rejection of civic responsibility will do; it must be "such a rejection ... as to warrant... withdrawal of a civic right." Accordingly, it "is consistent with [the] constitutional concept of choice by the people for Parliament to treat those who have been imprisoned for serious criminal offences" differently.258 Logically, it is not consistent to disenfranchise those convicted for offences that do not qualify as "serious."
Thus the Howard government's 2006 amendments had gone too far in not "attempting] to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence."259 In other words, no blanket disqualifications. And no lifetime bans either, because, as the Chief Justice also emphasizes, a disqualification must be "temporary."
The concurring judgement of Justices Gummow, Kirby, and Crennan similarly concluded that the blanket disenfranchisement was not justified by "substantial" reasons
256 Ibid. 257 Ibid, at para 8. 258 Ibid, at para 19. 259 Ibid, at para 24.
105 because it "operates without regard to the nature of the offense committed, the length of the term of imprisonment imposed, or the personal circumstances of the offender."260 In short, "the net of disqualification is cast too wide." The pre-existing three-year provision, by contrast, was "appropriate and adapted to serve an end consistent or compatible with the maintenance [of representative government]' because it attempts to "distinguish between the serious lawlessness [and] less serious but still reprehensible conduct."263 The practical effect of this judgment was thus to re-establish the pre existing 3-year sentence threshold for disqualification.
For a Court which is normally deferential to Parliamentary power, this decision struck a surprising balance between parliamentary sovereignty and the protections outlined in the Constitution. There was no way that the Australian Court could satisfy all parties involved in the Roach decision. By "finding" an implied right to vote through
Parliamentary change, the Court satisfied both Roach's lawyers (by opening the door to future litigation) and the Howard Government (by suggesting a more restrictive ban than three years may pass constitutional muster). This decision shows, clearly, that the Court plays an important role in the system of checks and balances. Bicameralism can, and does, play a role in moderating extreme policy outcomes. However, when checks and balances break down, as they did when the Howard government took control of the
Senate, we see the Court play this reasoned check on the legislature when it passed a
u Ibid, at para 90. 1 Ibid, at para. 95. 2 Ibid, at para 100. 3 Ibid, at para 102.
106 blanket disenfranchisement law that clearly went against the international trends (and
Australian history).
Prisoner Voting in Canada
In contrast to Australia, Canada had a blanket disqualification on prisoner voting
th
from Confederation until well into the 20 century. For example, the Canada Elections
Act 1985, affirmed the enfranchisement of all members of society with the exception of
"every person undergoing punishment as an inmate in any penal institution for the
commission of any offence."264
Three years prior to that amendment, however, Canada had adopted the Charter
of Rights and Freedoms, in which section 3 outlines the democratic rights of Canadians.
Section 3 says: "Every citizen of Canada has the right to vote in an election of members
of the House of Commons or of a legislative assembly and to be qualified to membership
therein." The late Donald Smiley wrote at the time that "some of the rights contained in
the Charter are stated so explicitly that there is little doubt of their meaning and effect,"
and that "Section three is one of those Sections."265 Smiley's view was understandable.
The franchise has been extended through successive waves of parliamentary reform over
the past century, leaving only a very few restrictions, particularly age limits and prisoner
disqualifications, and those remaining limits did not seem to be contentious at the time.
Said Sterling Lyon, Premier of Manitoba at the time of the Charter's adoption, and later a
respected judge on the Manitoba Court of Appeal, "if anyone had said to [the First
264 Government of Canada, "Canada Elections Act 1985 R.S.C.," (1985), s 51(e). Emphasis added. 265 Donald V. Smiley and Ontario Economic Council, The Canadian Charter of Rights and Freedoms, 1981 (Toronto: Ontario Economic Council, 1981).
107 Ministers] in 1981 that the Charter would be used to win voting rights for prison inmates, we never would have believed it."266 The perceived clarity of s.3 may help to explain why it is one of the Charter sections that is not subject to the section 33 notwithstanding clause.
As it turned out, the undoubted clarity many saw in section 3 was very short-lived after the adoption of the Charter, perhaps not with respect to age limits, but certainly with respect to prisoner voting. A number of challenges emerged during the 1980s from prisoners claiming their right to vote was guaranteed in the Charter. These challenges generally demanded the complete enfranchisement of prisoners, which would place
Canada at the extreme liberal end of the policy continuum. This was certainly true of the case, launched by Richard Sauve, that eventually brought the issue to the Supreme Court.
Sauve was serving a life sentence for murder. Given the seriousness of his crime and the length of his sentence, he was clearly seeking a complete invalidation of any prisoner voting disqualification
Sauve would have found little comfort in the 1989 report of the Royal
Commission on Electoral Reform and Party Financing (hereafter the Lortie
Commission). While the Commission considered the complete blanket disenfranchisement in Section 51(e) of the Canada Elections Act to be unjustifiably broad,267 it nevertheless maintained that disqualification was justified "where the offences committed constitute the most serious violations against the community or
Paul Brunner, "The Framers Revolt," The Western Standard, 4 April 2005. Government of Canada, "Royal Commission on Electoral Reform and Party Financing," (1991), 40.
108 against the basic rights of citizens to life, liberty and the security of person."268 Such a disqualification, the commission argued, "is rationally connected to the specific limitation on an individual's right to vote, because persons convicted of these crimes have offended the very foundations of a civilized personal community."269 Accordingly, they argued for the disqualification of anyone convicted of an "offence punishable by a maximum of life imprisonment and a minimum sentence of 10 years or more to be disqualified from voting during the time they are in prison."270 This would not have helped Sauve.
The federal government, obviously prompted by judicial challenges and by the kind of arguments made by the Lortie commission, did eventually do away with the blanket disqualification and moved to a sentence-based threshold. It did not, however, put that threshold as high as the Lortie Commission had recommended. Instead Bill C-114, passed in May 1993, disqualified prisoners who were serving sentences of two-years or more. Again, this liberalization would not have helped Sauve. But his legal challenge was still ongoing. If the Supreme Court accepted his arguments, the new law would be as unconstitutional as the old blanket disqualification and Sauve would be able to vote.
It did not turn out that way, at least not immediately. When the Supreme Court decided Sauve's case, it issued a very short oral judgement finding only that the previous blanket disqualification violated Section 3 of the Charter, and not at all addressing the constitutionality of the new two-year limit. Conceding that the law infringed the Charter right to vote, the Court devoted its very brief comments to considering whether that
268 Ibid. 45 269 Ibid. 270 Ibid.
109 infringement could be justified as a "reasonable limit" under section 1 of the Charter.
Justice Iacobucci spoke for the unanimous Court: "In our view, s. 51(e) [the previous blanket disqualification] is drawn too broadly and fails to meet the proportionality test, particularly the minimal impairment component of the test, as expressed in the s. 1 jurisprudence of the Court."271 There was a little additional verbiage, but that sentence represents the full extent of the Court's substantive judgment.
It would appear from this ruling that the Court was permitting inter-institutional dialogue between courts and legislatures. Ruling that the previous legislation failed the minimal impairment portion of the section 1 Oakes test certainly suggests that legislation more narrowly tailored to achieve the desired outcomes, short of complete disenfranchisement, might pass constitutional muster. Perhaps the new two-year threshold would be justified in a subsequent case, and if not, surely something like the
Lortie Commission's 10 year threshold would pass constitutional muster. Or so one might think.
Sauve (or his lawyers) obviously did not think so because they quickly launched a second case, again challenging the law (the new law now) on grounds that would, if accepted, make all prisoner disqualifications unconstitutional. They noticed that while the very brief Sauve /judgment emphasized the way the blanket disqualification
"particularly" failed to meet the "minimal impairment component of the" Oakes test, it suggested that it may "fail to meet the proportionality" test as a whole. Recall that the
"proportionality" test, which insists that legislative means be "proportional" to a
271 Sauve v Canada (Attorney General), [1993] 2 S.C.R. 439.
110 compelling legislative purpose, has two main components. First, a law must show that it
is "rationally connected" to that purpose, i.e., that it actually achieves the purpose. If it
does not, the inquiry is at an end; a law that does not even achieve its purpose cannot be a
"reasonable limit" on Charter rights. If a law does achieve its purpose, however, it must not use sledgehammer means when a fly swatter would do. I noted in chapter 2 that this
"minimal impairment" test provides the main opportunity for moderating or "fine tuning"
dialogue. Obviously, no such room for dialogue exists with respect to a law that is not even rationally connected to its purpose. Sauve's lawyers read the judgment in Sauve I as
leaving room for this rational connection argument and thus launched Sauve II.
Sauve IPs full-scale attack on prisoner disqualification did not fare well on its way to the Supreme Court, although a partial victory was secured in the Federal Court
Trial Division.272 That court accepted the proffered dual purpose of prisoner disenfranchisement, "the enhancement of civic responsibility and respect for the rule of law; and the imposition of an additional sanction on prisoners who had committed serious anti-social acts."273 Moreover, it found the law "rationally connected" to its purpose. The law, in its view, failed the minimal impairment requirement of the Charter's Section 1.
Interestingly, the Court did not conclude that a longer sentence limit, such as Lortie's 10- year suggestion, was required. Instead, it decided that Parliament had not considered the alternative of case-by-case disqualification by the sentencing judge, using criteria set by
Parliament. For Sauve, this was certainly better than a judgment upholding the law, but it did not directly gain prisoners like him the vote.
272 Sauve v Canada (Chief Electoral Officer) 132 D.L.R. (4th) 136 (1995). 273 Ibid, at para 2.
Ill At the next level, the Federal Court of Appeal dismissed Sauve's claim altogether.
The Appeal Court overturned the trial decision on the grounds that the denial of the right to vote to those imprisoned for more than two years was a reasonable limit under Section
1 of the Charter. The court found that the new law "was sufficiently different from its predecessor, which provided for a total disenfranchisement, to warrant a fresh consideration under Section l."274 The objectives of prisoner disenfranchisement, civic responsibility, respect for the rule of law, and enhancement of penal sanction, were sufficiently pressing and substantial to warrant a Charter infringement. Moreover, the legislative means chosen, namely the two-year limit, were both rationally connected to that purpose and only minimally impaired the Charter right to vote. Indeed, in contrast to the previous law, the new law disenfranchised only the most serious offenders. The court concluded, "that there was no reason for the court to declare invalid the balancing in which Parliament had engaged."275
When his case was decided by the Supreme Court for the second time in 2002, almost a quarter of a century after his first trial court appearance in Sauve I, Richard
Sauve was finally fully successful, gaining a ruling - albeit a narrow 5-4 one - that invalidated any and all prisoner disqualifications on the grounds that they could not be rationally connected to any plausible compelling purpose.276 Chief Justice McLachlin, who wrote the majority decision, explicitly recognized that striking down the law on rational connection grounds effectively cuts off any "dialogue," arguing that:
Sauve v Canada (Chief Electoral Officer), 180 D.L.R. 4th 408 (1999). Ibid, at para 419. Sauve v Canada (Chief Electoral Officer), at para 19.
112 The challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial does not mean that the Court should defer to Parliament as part of a "dialogue." Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of if at first you don't succeed, try, try • 277
again.
Writing for the four Sauve II dissenters, Justice Gonthier came to the opposite conclusion, reading the "language of [Justice] Iacobucci's reasons in [Sauve /as implying] that... Parliament was free to investigate where an appropriate line [of prisoner disenfranchisement] could be drawn."278 In other words, Gonthier saw the former blanket disqualification as failing only the "minimal impairment" test, not the rational connection test. He thus preferred to treat the policy development on the issue of prisoner voting as: another episode in the continuing dialogue between courts and legislatures on the issue of prisoner voting. Parliament responded to [the 1993] judicial advice by enacting legislation aimed at accomplishing part of its objectives while complying with the Charter.279
Gonthier, who had participated in Sauve I, obviously thought the judiciary had played a beneficial role of moderating dialogue in moving the legislature away from blanket disqualifications into the middle ground of disqualifying more serious prisoners as determined by length of sentence. McLachlin, also a participant in Sauve I, thought the middle ground was entirely unjustified and invalidated the very idea of prisoner
Ibid, at para 19. Ibid, at para 161. Ibid, at para 104.
113 disqualifications. Given the vociferous disagreement of these (and other) judges in Sauve
II, one suspects that their unanimous, but unusually brief and cryptic, judgment in Sauve I was a carefully constructed strategic compromise.280 However that may be, the result was to position Canada at the liberal end of the policy continuum, while Australia remained in the middle, although both policies were the direct result of judicial decisions.
Conclusion
The moderate middle on the issue of prisoner voting rights is to disqualify more
"serious" offenders (as defined by length of sentence) for the duration of their incarceration. This position is well represented in the policies of many liberal democracies, in available studies of public opinion, and across the spectrum of judicial opinion. How does this middle ground fare in our two case-study countries: Canada with its strong-form judicial review under an entrenched Charter of Rights, and Australia, which lacks an entrenched rights document and relies instead on other checks and balances, including a more vibrant bicameralism?
In the legislative arena, the Canadian Parliament had moved to the moderate middle, while its Australian counterpart had abandoned moderation in favour of the very extreme Canada had rejected. Moreover, in the early stages, litigation under the Charter clearly contributed to policy moderation in Canada while the Australian Senate did not prevent a move to one of the extremes in Australia. If this were the whole story, it might
Rainer Knopff, Dennis Baker and Sylvia LeRoy, "Courting Controversy: Strategic Judicial Decision Making," in Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms, ed. James B. Kelly, and Christopher P. Manfredi (Vancouver: UBC Press, 2009).
114 seem to support those who distrust legislative checks and balances and see courts as the better moderating force.
The story is more complicated, however. When litigation challenging the new
Canadian law reached the Supreme Court in 2002, a narrow majority (5-4) moved
Canadian policy to the liberal extreme on the policy continuum, concluding that no restrictions on prisoner voting could be justified as "reasonable limits" on the Charter's right to vote . In Australia, by contrast, the High Court, using a constitutionally implied right to vote, struck down the Howard government's blanket disqualification but affirmed the constitutionality of a sentence-dependent disqualification .
In many ways, the Canadian Sauve progression resembles the analogous development in South Africa. Recall that the 1999 South African judgment seemed, like
Sauve I, to invite the kind of dialogue that would allow some kind of more carefully tailored prisoner disqualification, but that the Court then responded to the government's tailoring by invalidating any disqualification of prisoners whatsoever. Both Canada and
South Africa, one may observe, have fully explicit, entrenched rights to vote, the kind of rights than can sustain "strong form" judicial review.
The Australian judicial decision stands in obvious contrast. The viewpoint expressed in Canada by the Gonthier minority attracted the High Court majority in
Australia. Indeed, Justice Gleeson approvingly cites Gonthier's Sauve I opinion in support of his own judgment in Roach?u The Australian judgment, moreover, is similar to the British judgment in Hirst. At least with respect to prisoner voting rights, the
281 Roach v Electoral Commissioner, at para 18.
115 judicial contribution to policy dialogue appears to have been more moderating in regimes with weak-form judicial review than in those with entrenched bills of rights sustain strong-form review. In the Australian case, the High Court relied on constitutionally implied rights. Its application of such rights is consistent with previous findings that courts tend to be less adventurous in their use of implied rights. Looked at in this way, the comparative story provides some support to the view that strong-form judicial review pulls policy in the direction of polar extremes whereas weak-form judicial contributions to interinstitutional dialogue reinforce moderation.
One should treat this conclusion with some caution, however. We need to keep in mind, for example, that the swing of a single vote would have led the Canadian Court to the same policy moderation exhibited in Australia. Similarly, on the Australian side, we need to pay attention to the Howard government's unusual, if narrow, Senate majority.
The issue of prisoner voting had arisen at several earlier junctures in Australian history, with one or other of the policy extremes being discussed and sometimes preferred in the
House of Representatives. In these earlier cases, the Senate often exercised the moderating influence envisioned by legislative-checks-and-balances side of the institutional debate by rejecting the policy extremes in favour of time-based cut-offs for prisoner disenfranchisement. In chapter 4, we shall see that the Senate played this kind of moderating role on the same-sex marriage issue (albeit only in a small way) despite the same party enjoying a majority in both houses. Moreover, other political checks and balances, such as the desire for bi-partisan support on a controversial issue and an electorally produced shift in government, also contributed to policy moderation on same-
116 sex relationships. If something similar had occurred on the prisoner voting issue in 2006, there may have been no need for the High Court's intervention.
Clearly, no single case study can support strong and clear conclusions. Indeed, even the small number of case studies represented in this study can go only so far in illuminating the institutional debates under consideration. Still, the more case studies we have, the better. In chapter 5 I turn to the issue of same-sex marriage.
117 CHAPTER 5: SAME-SEX MARRIAGE
Since the early 1990s, one of the most contentious policy debates has dealt with the issue of same-sex relationships. Gay rights, including marriage rights, are highly controversial because they deal with issues of sexual intimacy, societal taboos and centuries of religious and legal prohibitions. While same-sex marriage can be presented as the logical culmination of the gradual abandonment of other societal restrictions on marriage, such as race, it remained a remarkably resistant "last frontier." Even with the dramatic recent acceptance of gays and lesbians in other respects, resistance to the idea that gays and lesbians should be legally entitled to marriage remained significant, and the issue has occasioned pitched battles on many institutional fronts throughout the liberal democratic world. Clearly, same-sex marriage has presented the kinds of polarizing moral politics of interest to this study. Is there a moderate middle to be found between the polar positions occupied by Lowi's "radicals"? How have the different positions on the policy continuum been affected by their passage through the different institutional systems in Canada and Australia? This chapter follows the logic laid out in previous chapters to address these questions.
Same-Sex Marriage as Moral Politics
As noted in Chapter 3 the issue of same-sex marriage involves a clash between libertarian and social conservative perspectives of harm. The libertarian perspective
118 suggests that as long as one does not harm other individuals, one should be allowed to
live life as one chooses. This includes the use of illicit drugs, possession of pornography,
and engaging in homosexual relationships. In this view, all government coercion "equals
a violation of the greatest good in a civilized society, individual liberty."282 Accordingly,
government coercion should be kept to a minimum.
In particular, government should not subject individuals to any official view of
the requirements of human happiness. As Mill argued, the individual is "the person most
interested in his well-being: the interest which any other person, except in cases of strong personal attachment, can have it, is trifling, compared with that which he himself has."283
It follows that people are not good judges of what will make others happy, and that "the
preservation of autonomy is the key to happiness."284 Jonah Goldberg refers to this as
"cultural libertarianism" or the idea that "whatever ideology, religion, cult, belief creed,
fad, hobby, or personal fantasy you like is just fine so long as you don't impose it on
anyone else, especially with the government."285 Joel Feinberg cogently summarizes this
libertarian vision:
The fully voluntary choice or consent of a mature and rational human being concerning matters that only affects his own interests is such a precious thing that no one else
Scott Croft, "Good Government and the Happiness of Mankind: A Case Study in the Libertarian/Social Conservative Debate over Morals Legislation," Georgetown Journal of Law and Public Policy 2 (2004). 283 Currin V. Sheilds, ed., John Stuart Mill: On Liberty (Indianapolis Bobbs-Merrill Eucation Publishing, 1956), 93. 284 Ibid. 285 Jonah Goldberg, "Freedom Kills: John Walker, Andrew Sullivan, and the Libertarian Threat," National Review Online (2001), http://article.nationalreview.com/267250/freedom-kills/jonah-goldberg.
119 (and certainly not the state) has a right to interfere with it simply for that persons 'own good'.286
But libertarian freedom is not absolute. In the libertarian vision, one is free to live one's own dream only up to a point: the point at which pursuit of one's own vision tangibly harms others, thus restricting their freedom. Libertarian freedom, in other words, is subject to the constraints necessary to secure the same freedom for everyone else, and only to those constraints. That is the purpose of Mill's "harm principle." Simply put, libertarians can find no good reason, as long as one does not hurt another, to restrict individual choice. Indeed, if choice is restricted, it damages one's potential and development.
On the issue of same-sex marriage, a libertarian would argue that what two consenting adults agree to is no one else's business. This perspective is reflected in Prime
Minister Pierre Trudeau's famous statement "the state has no place in the bedrooms of the nation."287 The main pitch from the libertarian camp has been that the state should allow people to marry as long as there are no injuries to third parties. Taking it to its logical conclusion, libertarians see marriage as a private contract to be enforced by the private legal system. Indeed, viewed in this light marriage is simply a private status recognized socially with contractual and legal effects.
Social conservatives, by contrast, seek "traditional values," or put another way, those values, beliefs, and practices related to the life of the traditional family. Rather than
286 Joel Feinberg, Rights Justice and the Bounds of Liberty: Essays in Social Philsophy (Princeton NJ: Princeton University Press, 1980). 287 Barry D. Adam, Jan Willem Duyvendak, and Andre Krouwel, The Global Emergence of Gay and Lesbian Politics: National Imprints of a Worldwide Movement (Philadephia: Temple University Press, 1999), 13.
120 the individual as the basic social unit, social conservatives are more likely to see the
world from a Durkheimian view, where it is "the hierarchy of structured family that
serves as the model for institutions. Individuals in such societies are born into strong
constraining relationships that profoundly limit their autonomy."288
Social conservatives approach policy issues with a different set of priorities than
libertarians. While social conservatives certainly promote individual liberty and limited
government, they argue that "shared values, morals and standards, along with [basic
institutions]... are necessary for the order and stability of that society."289 This idea
underpins the notion that social conservatives believe in the existence and necessity of a public morality.
Robert P. George defines public morality as "the moral uprightness of individual people and the associations they form - insofar as it a public good."290 Put another way public morality is the "principles and norms of rights and wrong as they pertain to the establishment of a system of government and to the government's actions."291 George is making the classic claim that a system of self-government must be composed of at least minimally self-governed citizens. Without such citizens, the government police powers required to maintain order and protect individuals from harm will become far too extensive. Even James Madison, who so clearly emphasized the institutional channelling
288 Jonathan Haidt, "What Makes People Vote Republican?," Edge: The Third Culture (2008), http://www.edge.org/3rd_culture/haidt08/haidt08_index.html. 289 Croft, "Good Government and the Happiness of Mankind: A Case Study in the Libertarian/Social Conservative Debate over Morals Legislation," 644. 290 Robert P. George, "The Concept of Public Morality," American Journal of Jurisprudence 17 (2000): 23, See generally: , Making Men Moral; Civil Liberties and Public Morality (Oxford: Clarenden Press, 1993). 291 George, "The Concept of Public Morality," 23.
121 of self-interest - the pitting of ambition against ambition - as a substitute for virtue, conceded that it could only ever be a partial substitute. Madison wrote in Federalist 55 that:
As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.292
In other words, without the virtue or morality of self-governing citizens, a self-governed polity becomes impossible and will inevitably be replaced by a police state. It is in this sense that apparently private morality is in fact a public good.293
For many observers (including social conservatives), the necessary public morality is nurtured in the institutions of civil society, including families, religious communities, social organizations, even bowling leagues.294 For social conservatives, the family is the central institution in this respect. As Brian Lee Crowley notes, "family is the first and most important institution where character is formed. It is there that the struggle to civilize children and turn them into mature adults begins and is largely
292 Hamilton et al., Federalist Papers, 342. 293 Knopff and Morton, Charter Politics, 313-14. 294 Robert D. Putnam, Bowling Alone : The Collapse and Revival of American Community (New York ; Toronto: Simon & Schuster, 2000).
122 completed." Simply put, family is where the "moral uprightness" of individuals is first established.
To this point, of course, the argument for "public morality" and for "civil society" as the engine of such morality could be - and often is - accepted by libertarians as well as social conservatives. John Stuart Mill himself conceded that his prescriptions in On
Liberty applied only with the advent of "civilization," by which he meant in part the development individual self-restraint, and that despotism was the appropriate form of government in what he called "barbarous" ages.296 However, the need for "public morality" did not persuade Mill, nor does it persuade his libertarian followers, that it needs legal support once the threshold of "civilization" had been reached. Libertarians who concede the public goods provided by civil society believe that civil society can and will provide those goods without legal endorsement and certainly without legal enforcement. As far as marriage and the family is concerned, this libertarian orientation logically culminates in claims that the state should get out of the business of marriage altogether.297
Social conservatives, by contrast, believe that the kinds of stable and nurturing families that best contribute to public morality are sufficiently fragile to need and benefit from a degree of state recognition and endorsement. By itself, however, this claim does not necessarily support only state endorsement of traditional heterosexual marriage. Even conservatives have been known to concede that if state endorsement benefits the stability
295 Brian Lee Crowley, Fearful Symmetry: the Fall and Rise of Canada's Founding Values (Toronto: Key Porter Books, 2009). 296 Sheilds, ed., John Stuart Mill: On Liberty. See also: Knopff and Morton, Charter Politics, 314-15. 297 Eskridge Jr., William N., "A History of Same-Sex Marriage," Virginia Law Review 79 (1993): 1432.
123 of conjugal relationships, this benefit (with its public-good spin-offs) should apply to homosexual as much as to heterosexual relationships.298 Conservatives of this ilk will often endorse at least civil unions and sometimes even full same-sex marriage.
The divide between those who promote full same-sex marriage and those who wish to stop short at civil unions involves a debate about the relative status of the
(potentially) procreative dimension of heterosexual conjugality. Is this relationship more important in the overall civil-society production of public morality? If so, does that warrant a somewhat higher legal status? The debate about this question is extensive and complicated, and this study is not the place to assess and settle its many claims and counter claims. We know enough to appreciate the major positions on the policy continuum about this hotly debated moral issue. The next section develops the continuum in more detail.
298 For example see: Rainer Knopff, "The Case for Registered Domestic Partnerships," Policy Options 20 (1999). 299 Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (New York: Holt Paperbacks, 2004), esp. ch. 4; Andrew Sullivan, ed., Same Sex Marriage Pro & Con: A Reader (New York: Vintage, 2004).
124 Same-Sex Marriage: The Policy Continuum
Table two, below, presents the range of positions on this contentious debate.
Table 2: Same-Sex Marriage Policy Alternatives
Extension of No recognition of Benefits Marriage-like Same-sex Marriage same-sex couples Couples access to Recognition couples health insurance, in marriage like employee benefits, situations (e.g. Civil and inheritance Unions) but rights stopping short of marriage
The conservative pole of this continuum- no formal recognition of same-sex couples - is obviously the longstanding tradition in most societies. It is important to note that in contemporary liberal democracies this pole does not include an equally longstanding but now abandoned part of the tradition: the legal prohibition of homosexual relationships and activity. The conservative pole of the policy continuum on same-sex relations now assumes the widespread decriminalization of homosexuality.
From this policy perspective, same-sex relationships, including long-term, stable cohabitation, are legal (in the sense that what is not legally prohibited is legally permitted), but are given no formal status-based legal recognition or benefits.
The other pole, of course, is full recognition of same-sex marriage, on a completely equal footing with heterosexual marriage, including all of the rights, privileges, benefits, and obligations involved.
125 The first of the middle ground positions extends certain limited benefits, such as
health and employment benefits, to unmarried cohabitating couples, without regard to
their sexual orientation. So-called "de facto" relationships are a good example of this type
of arrangement.300 The second middle ground option goes further, providing not only
discrete benefits but the overarching status of a "civil union" or "registered domestic
partnership" to unmarried couples, again without regard to sexual orientation. Couples
entering civil unions or domestic partnerships enjoy nearly all of the legal rights and
privileges of married heterosexual couples, but without the legal and symbolic status of
full marriage (and sometime without certain rights available to married couples, such as
adopting children). Although civil unions represent a common middle-ground position
on the policy spectrum surrounding same-sex marriage, they come, as Lowi teaches us to
expect, under attack from both polar positions. Supporters of same-sex marriage suggest
that anything less is a explicit form of discrimination based on sexual orientation. For
marriage traditionalists, by contrast, civil unions are the first step down the slippery slope
to the inevitable recognition of marriage for same-sex couples.
The Moderate Middle in Comparative Context
Is the middle ground position of civil unions supported by more than simple
logic? Does it find reasonable representation in the policies of other acknowledged liberal
democracies, in judicial opinion, and in public opinion?
Siew-Ean Khoo, "Living Together as Married: A Profile of De Facto Couples in Australia," Journal of Marriage and Family 49, no. 1 (Feb) (1987).
126 Comparative Policies.
As in the case of prisoner voting, a clear liberalizing trend is evident in the approach taken to same-sex relationships by liberal democracies. Just as blanket disqualifications of all prisoners have become rare, so have legal regimes that provide no recognition or benefits at all to same-sex couples - though the latter are not quite as rare as the former. The conservative pole of the policy continuum on same-sex relationships - no formal recognition - still exists in parts of Europe, the United States, and the
Caribbean. Among the European states that provide no legal recognition or benefits to same-sex relationships are Italy, Cyprus, Malta, Greece, Russia and the Ukraine. The
Dominican Republic and Jamaica are notable Caribbean holdouts in this category.
In the United States, some jurisdictions, not content with providing no formal recognition, have explicitly banned same-sex marriage and sometimes also civil unions.
In 1996, the United States Congress passed, and President Clinton signed, the federal
Defence of Marriage Act (DOMA). The Act defined marriage as a "legal union between one man and one woman as husband and wife." The federal DOMA denied federal benefits to same-sex couples, "and attempted to protect each state's power to deny recognition of same-sex marriages performed in other states."
DOMAs have also been passed in many states (42 in total). Some these explicitly ban both same-sex marriage and civil unions. For example, Section 32 of the Texas State
Pew Research Centre, "Same-Sex Marriage: Redefining Marriage around the World," (2009), http://pewforum.org/Gay-Marriage-and-Homosexuality/Same-Sex-Marriage-Redefining-Marriage-Around- the-World .aspx. 302 Kenneth P. Miller, Direct Democracy and the Courts (Cambridge: Cambridge University Press, 2009), 206.
127 Constitution contains not only the standard statement that "[mjarriage in this state shall
consist only of the union of one man and one woman" but also a provision saying that
"[t]his state or a political subdivision of this state may not create or recognize any legal
status identical or similar to marriage."303 Eighteen US states, including Florida, Texas, and Michigan, fit this profile.304
Civil unions, de facto relationships or registered domestic partnerships are, of course, not prohibited everywhere, including, as we shall see, in the United States. Such arrangements first emerged in Europe during the late 1980s as a middle ground compromise for same-sex couples some of the benefits of married couples. Denmark, for instance, enacted such a statute in 1989, conferring some of the rights of heterosexual couples on same-sex couples. The Danes, however, stopped short of full marriage and did not allow same-sex couples to adopt children.305 In 1998, Belgium passed a law similar to Denmark's. That is, same-sex couples could register with the city clerk and assume joint responsibility for a household. In 2003, the Belgian law was liberalized and same-sex couples were granted the same tax and inheritance rights as heterosexual couples. In France, a law regulating civil unions was passed in 1999. Known as pacte civil de solidarite (civil pact of solidarity), same sex couples are entitled to the same fiscal (taxes and inheritance) and social (work permits) as married couples. In Germany, a "contract of common life" was passed in 2001 vesting similar rights to same-sex
303 State of Texas, "Constitution of the State of Texas," (1876), amendment added November 8,2005. 304 The full list of states that ban same-sex marriage and civil unions: Nebraska, Kentucky, Georgia, Louisiana, Arkansas, Michigan, North Dakota, Oklahoma, Utah, Virginia, South Carolina, Alabama, Idaho, Florida, Kansas, Texas, Ohio and South Dakota. 305 CBC News, "CBC News in Depth: Same-Sex Rights World Timeline," http://www.cbc.ca/news/background/samesexrights/timeline_world.html.
128 couples. Variations on this kind of law were adopted in Norway (1993), Sweden (1995),
Iceland and Greenland (1996), Netherlands (1998), Switzerland (2005), Finland (2002),
and Austria (2010).306
Commonwealth countries like the United Kingdom and New Zealand also passed
civil union laws. In 2005, the New Zealand Parliament passed the Civil Unions Act,
which allows same-sex couples to register under the Births, Deaths, and Marriages
Registration Act of 1995, but not adopt children.307 Similarly in 2005, the United
Kingdom passed the Civil Partnership Act. The British Act gives same-sex couples the
same rights and responsibilities as opposite-sex married couples, including adoption
rights.308 (Of the intermediate initiatives listed thus far, only Britain's and Iceland's
allowed same-sex partners to adopt children.) Moreover, the British law provides
legislation for the dissolution of same-sex civil partnerships.
While the federal DOMA in the U.S. means that there is no national civil union or
registered partnership scheme in that country, some states (and the District of Columbia)
liberalized their relationship laws along these lines. While eighteen states, as noted
above, ban both same-sex marriage and civil unions, there are numerous states, including
many with DOMAs, that do not ban the intermediate position. Thus, twenty-four U.S.
states have DOMAs - twelve of them constitutional;309 the other twelve statutory310 - that
New Zealand Legislation: Acts, "Civil Union Act," (2004). 308 Kelly and Linzi Bull Noel-Smith, "The United Kingdom's Civil Parternship Act," Money and Family Law 21, no. 4 (2006). 309 Constitutional bans: Oregon, California, Nevada, Arizona, Montana, Colorado, Missouri, Wisconsin, Tennessee, Mississippi, Hawaii, Alaska. For full descriptions see: The Wall Street Journal, "Same-Sex Marriage Laws, a State-by-State Rundown," http://online.wsj.com/public/resources/documents/info-
129 ban only same-sex marriage, leaving open the possibility of civil unions or registered partnerships.311 Eleven of these DOMA states - Colorado (2009), Washington (2007),
Alaska (2005), Nevada (2009), Oregon (2008), California (2000), Maryland (2008),
Illinois, Hawaii (1997), Maine (2004) and Wisconsin (2009) - in fact adopted some kind
of intermediate relationship legislation. Wyoming, also a DOMA state, recognizes same-
sex unions (including marriage) performed in other jurisdictions, but does not perform them in state. Five non-DOMA jurisdictions also passed laws which recognize same-sex relationships: New Jersey (2004), Vermont (2000), Connecticut (2005), New Hampshire
(2008), and the District of Columbia (1992). New York, a non-DOMA state, is similar to Wyoming in that it recognizes out of state relationships (including marriage), but does not perform them.
The fact that American states (and state populations) have often simultaneously
supported both civil unions and strong bans on full same-sex marriage indicates that the middle ground position can maintain some independent stability. This is underlined by the fact that some state DOMAs, both statutory and constitutional, were enacted as
initiated ballot measures, having their origin and finding their ultimate support in direct popular mobilization and votes, rather than in legislatures.312 In other states, ballot
SAME_SEX_MAP_0905.html, DOMA Watch, "Issues by State," (2010), http://www.domawatch.org/stateissues/index.html. 310 Statutory bans: Washington State, Wyoming, Minnesota, Illinois, Indiana, West Virginia, Pennsylvania, Maryland, Maine, Delaware, North Carolina and Iowa. 311 Five states have neither constitutional nor statutory DOMAs: Massachusetts, New Jersey, New Mexico, New York, and Rhode Island. 312 Voters in the following states voted in favour of a DOMA: Oregon, California, Nevada, Montana, Colorado, Nebraska, Missouri, Arkansas, Michigan, Indiana, Ohio, and Florida.
130 measures were not "popularly initiated", but were put before voters by legislatures.313 In
all, 30 DOMAs were approved by state ballot measures. And this expression of popular
support for traditional heterosexual marriage has co-existed in some of these states
(California, Colorado, Nevada, Oregon, Wisconsin) with support for civil union
legislation. Outside of the United States, middle ground positions have, to date,
maintained a similar stability in such jurisdictions as France, Britain, New Zealand, and
Germany.
Yet, middle ground positions have not always been characterized by such
stability, as conservative critics feared might be the case. For not a few jurisdictions
domestic partnership or civil union laws have proved to be a way station on the road to
full same-sex marriage.
The Netherlands was the first country to transcend their civil union laws and
legalize same-sex marriage in 2000. The legislation allowed same-sex couples to marry,
divorce, and adopt children. The overall impact on the civil marriage statute was minimal, requiring only one sentence to be altered, which now reads "a marriage can be
contracted by two people of different of the same sex."314
Belgium similarly moved from civil unions to full same-sex marriage. The process began in 2003, when the law was amended to recognize marriages of same-sex couples from countries where the practise was legal. Although this 2003 law did not permit same-sex marriages to be performed in Belgium, it clearly made that continuing
313 Idaho, Utah, Arizona, North Dakota, South Dakota, Kansas, Oklahoma, Texas, Louisiana, Wisconsin, Mississippi, Kentucky, Tennessee, Alabama, Virginia, South Carolina, Georgia, and Alaska. 314 Pew Research Centre, "Same-Sex Marriage: Redefining Marriage around the World."
131 restriction rather anomalous. Thus the law was further liberalized in 2004 when the
Belgium Parliament allowed same-sex couples to marry provided they had lived in
Belgium for a minimum of three months. A final restriction was removed in 2006, when rights of adoption were granted to same-sex couples.315
In Norway, the same progression occurred in January of 2009, when Parliament replaced the 1993 civil union law, which did not permit church weddings or adoptions316 for same-sex couples, with a new law that allows both, as well as permitting lesbians to be artificially inseminated. It is worth noting that the Norwegian same-sex marriage law does not legally require churches and clergy members to perform the ceremony.
Sweden has also moved from civil union legislation to full same-sex marriage.
The liberalization process began in 2002, with a law allowing same-sex couples in civil unions to adopt children. In April, 2009, the Swedish Parliament voted 226-22 to replace the 1995 civil unions law with full same-sex marriage. The law integrates a 2002 law, which allowed same-sex couples to adopt children. Like the Norwegian law, the Swedish law allows churches and clergyman to opt out of marrying same-sex couples.
Iceland became the ninth country to permit same-sex marriage on June 11, 2010.
The vote moves Iceland to the most liberal pole of the spectrum. Interestingly in moving to the liberal pole, Iceland ended its use of registered partnerships for same-sex couples.
This change in the law brings same-sex marriage in line with opposite sex marriage. That is, opposite sex couples never had the option of registered partnerships.
1U1U. 7 Ibid.
132 Similarly, a number of US states that began with civil union arrangements have moved to recognition of same-sex marriage. At the time of writing six US jurisdictions:
Connecticut (2008); Maine (which repealed its DOMA - 2009), New Hampshire (2009),
Vermont (2010) and the District of Columbia (2009) are jurisdictions that have made this shift from intermediate positions to full same-sex marriage318 - some of them, as we shall see, because of court decisions rather than independent legislative action.
While some jurisdictions have used civil unions as an intermediate stepping stone from the conservative tradition to full same-sex marriage, others have made the transition in a single bound. For example, Spain moved in 2005 from the conservative pole directly to the liberal side of the continuum. Same-sex marriage was legalized by a legislative vote of 187-147.319 The Spanish law recognized same-sex couples and granted them all of the rights and privileges of heterosexual couples. The policy debate was passionate, and marked by large-scale demonstrations both for and against the legislation.320 The law was challenged by two municipal court judges who refused marriage licences to same-sex couples. The Constitutional Court of Spain ruled that the lower court judges did not have sufficient standing to challenge the law.
Massachusetts and Iowa similarly made the leap from one extreme to the other.
As discussed in the section on judicial opinion below, the Supreme Courts of
318 National Public Radio, "State-by-State: The Battle Over Gay Marriage," (2009), http://www.npr.org/templates/story/story.php?storyld=l 12448663. 319 MSNBC, "Spanish Parliament Legalizes Gay Marriage," (2005), http://www.msnbc.msn.com/id/8413036/. 320 BBC News, "Spanish MPs Approve Gay Marriages," (2005), http://news.bbc.co.Uk/2/hi/europe/4636133.stm. 321 Pew Research Centre, "Same-Sex Marriage: Redefining Marriage around the World."
133 Massachusetts and Iowa ruled that it was unconstitutional to exclude gays and lesbians
from the institution of civil marriage. South Africa, also discussed below, made the same
leap through judicial decision.
The movement of some regimes from civil unions to full same-sex marriage, and the movement of others directly from the conservative pole to same-sex marriage, might
suggest that civil unions are not in fact a plausibly stable middle ground for this policy issue, but simply a stepping stone from one pole to the other. In fact, however, we have seen that many jurisdictions that have stuck with civil unions and resisted the shift to full same-sex marriage. As in the case of prisoner voting rights, the middle ground remains well represented in comparative public policy.
Indeed, the overall trend is similar to the trend we observed with respect to prisoner voting rights. In both cases the most conservative position - blanket disenfranchisement of prisoners; no recognition for same-sex couples - is clearly in decline. In the case of same-sex relationships, a declining number of European
Caribbean, and U.S. jurisdictions inhabit the conservative pole of the policy continuum.
At the same time, the movement away from this conservative pole has not meant a wholesale shift to the liberal pole of the continuum.
Judicial Opinion
In the previous chapter, I noted that the conservative pole of the prisoner voting continuum received some support from legislatures, but none at all from the international judiciary. At the same time, while the liberal pole of complete prisoner enfranchisment
134 was required by some courts, the middle ground positions were permitted or supported by many courts. The situation is similar with respect to the matter of legally recognizing same sex couples.
Recently, the European Court of Human Rights was asked to rule on the requirement of same-sex marriage in the European Union.322 In the case ofSchalk and
Knop v Austria (2010), two Austrian men, sought a marriage permit in Vienna in 2002, but were turned down because Austrian law (at that time) only recognized marriage between a man and a woman. Moreover, when the litigation began, Austria had not yet passed its 2010 civil union legislation. The litigants in this case, would not, in any case, have been satisfied with civil unions. They challenged the Austrian law based on Article
12 of the European Convention of Human Rights which reads: 'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.323 They argued that the wording of Article 12
"did not necessarily imply that a man could only marry a woman." Rather, they saw no reason, based on the wording, that two men (or two women) should be prohibited from marrying each other.
A unanimous court (seven Justices) at the European Court ruled that Article 12 did not cover the situation of same-sex couples. They suggested that if the Article was
"read in isolation" it could perhaps be interpreted to include the right of same-sex marriage. However, they concluded that the wording of Article 12 was "deliberate [and]
322 Schalk and Kopfv Austria 30141/04 European Court of Human Rights (2010). 323 Council of Europe, "The European Convention on Human Rights," (1950), http://www.hri.org/docs/ECHR50.html.
135 must be read in the proper historical context." That is, Article 12 only guarantees a
right of opposite sex marriage.
The judges clearly did not want to leave the issue without providing some support
for legal reform, however. Thus they emphasized "an emerging consensus" that same-sex
couples should have some degree of legal recognition. Nevertheless, they saw no legal
ground on which they, as judges, could order such reform, and emphasized that it was up
to individual states to decide what form that recognition should take.325 Simply put, the
Court suggested that marriage laws should be updated by legislatures, not by judges, and
that a range of reforms to recognize same-sex relationships was possible. This part of the
European Court's judgment should, of course, be set alongside the fact that Austria was
engaged in passing civil union legislation in the same year. The Court's judgment
obviously left room for this option.
In a 1999 U.S. same-sex marriage case, the Vermont Supreme Court similarly left
room for legislative discretion on this subject - though (formally, at least) not as much room. In Vermont, the marriage statute did not explicitly state "a union of man and a woman." Thus, as in the Austrian case above, the plaintiffs argued that they could not be
excluded from the institution of marriage. In Baker v. Vermont (1999), a unanimous
Court ruled that denying legal recognition to same-sex couples was a violation of the
Vermont Common Benefits Clause, which guarantees all citizens equal protection. Yet, the judges were unwilling to re-write the marriage statute to require full same-sex
Schalk and Kopfv Austria at para 55. Ibid, at para 105. Baker v Vermont, 744 A.2d 864 (Vt.) (1999).
136 marriage. The majority ruled, "[w]e do not purport to infringe upon the prerogatives of
the Legislature to craft an appropriate means of addressing this constitutional mandate."
They concluded that a "domestic partnership" or "registered partnership" act that
"generally establishes] an alternative legal status to marriage for same-sex couples," would fulfil the constitutional requirement. As noted above, in early 2000, the
Vermont Legislature responded to this judgment by passing a civil unions act, before a
further liberalization to full same-sex marriage in 2010.
Although the unanimous Vermont decision preserved a degree of legislative
discretion, it obviously imposed more constraints than the European Court, which did not mandate even civil unions. Again, however, we must take note of the fact that the
European Court handed down its judgment as Austria passed civil union legislation. We cannot know whether the judges would have ruled differently in a different, more conservative, legislative context.
A 2006 judgment by the New Jersey Supreme Court followed the Vermont lead.
Since New Jersey had already enacted civil union legislation in 2004, the case concerned the constitutional adequacy of this option. In Lewis v. Harris, New Jersey Supreme Court
Justices, in a 4-3 decision, turned the civil union legislation into a constitutional requirement, but did not go as far as requiring same-sex marriage. The majority ruled
"that denying to committed same-sex couples the financial and social benefits and privileges given to their 57 married heterosexual counterparts bears no substantial
Ibid, at para 3.
137 relationship to a legitimate governmental purpose." In their view, while the State
Constitution "guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples," as the state had already done, it remains to "the Legislature [to] determine whether to alter the long accepted definition of marriage."329 In other words, civil unions were a minimal constitutional requirement, though the legislature had the discretionary power to implement full same-sex marriage. In dissent, the minority argued that anything short of same-sex marriage would be a violation of the Constitution.
In preserving some degree of legislative discretion, the New Jersey Court had refused to go as far as an earlier, 2002, judgment of the Massachusetts State Supreme
Court. In Goodridge v. Department of Public Health, the Court was asked whether denying same-sex marriage "was consistent with the Massachusetts Constitution"?330 At the time, Massachusetts, although a non-DOMA state, continued to inhabit the conservative end of the policy continuum in the sense of providing no legal recognition or benefits to same-sex couples. The 4-judge majority decision, penned by Chief Justice
Margaret Marshall, examined existing marriage laws and found "persistent prejudices against persons who are (or who are believed to be) homosexual." She concluded that the state may not "deny the equal protections, benefits, and obligations conferred by civil marriage to two individuals who wish to marry."331 After declaring the law unconstitutional, the Court rewrote the definition of marriage as "the voluntary union of
328 Goodridge v Department of Health, 798 N.E.2nd 941, at para 75 (2002). 329 Ibid, at para 85. 330 Miller, Direct Democracy and the Courts, 207. Goodridge v Department of Health, at para 15.
138 two persons as spouses, to the exclusion of all others," thereby moving Massachusetts
directly from one end of the policy continuum to the other.
The 3 dissenters argued that the State Constitution prohibited discrimination based on equal protection, but maintained that changing the definition of marriage should be left to the legislatures. Said Justice Spina, the"power to regulate marriage lies with the
Legislature, not with the judiciary." Similarly, Justice Sosman observed:
"[a]bsent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that redefinition will not have unintended and undesirable social consequences."333
In 2008, the Connecticut State Supreme Court adopted the Massachusetts rather than the New Jersey approach. As was true of New Jersey, Connecticut, a non-DOMA state, had enacted civil union legislation in 2005. The 2008 challenge claimed that this was inadequate and that the state constitution required full same-sex marriage. This time the more expansive claim won the day. The Connecticut court issued a ruling that required same-sex marriage and left no room for a legislative discretion. Connecticut
Justices, in a 4-3 decision, ruled that the State constitution protects the right to same-sex marriage.334 The majority concluded, "our statutory scheme governing marriage [civil unions] impermissibly discriminates against gay persons on the basis of their sexual
Ibid, at para 58. Ibid, at para 91. Kerrigan v Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008).
139 orientation. In dissent, the minority concluded that there was no constitutional right to same-sex marriage in the Connecticut constitution.336
Finally, in 2009, the Iowa Supreme Court also adopted the Massachusetts approach, making the leap from no formal recognition to full same-sex marriage. It did so in even more dramatic fashion, for two reasons. First, unlike Massachusetts and
Connecticut, Iowa had passed a statutory DOMA, whose limitation of marriage to only heterosexual couples the Court invalidated. Second, unlike the closely divided judgments in Massachusetts and Connecticut, the Iowa ruling was unanimous. Twelve same-sex couples challenged the 1998 Iowa DOMA statute, using the equal protection clause of the
Iowa State Constitution. A unanimous court ruled the equal protection clause required marriage rights be extended to same-sex couples to marry. Indeed, the Court made it plain that the intermediate position of civil unions would not pass constitutional muster:
"a new distinction [civil union regime] would be equally suspect and difficult to square with the principles of equal protection," thus, "limiting marriage to a man and a woman must be stricken from the statute."
Judicial decisions requiring full SSM are not limited to the U.S. The previous chapter highlighted the way in which the South African Supreme Court took that country beyond the middle ground position on prisoner voting rights to the liberal pole of complete enfranchisement. The South African Court did much the same thing on the issue of same-sex marriage, playing a pivotal role in liberalizing marriage laws. What
Ibid, at para 5. Ibid. Ibid, at para 127.
140 makes this liberalization notable is that in Africa "homosexuality is largely taboo - notably in [neighbouring] Zimbabwe."338 In the case of Minister of Home Affairs and
Another v. Fourie and Another, the Constitutional Court ruled that Section 9 of the 1996
South African Constitution, which prohibits discrimination based on sexual orientation, guarantees the right of same-sex couples to marry.339 Writing for a unanimous Court
(except for the remedy) Sachs J held if opposite sex couples had the option of deciding to marry or not, same-sex couples should have the same set of entitlements.340 By not providing this option, the law "has failed to achieve the dignity, status, benefits and responsibilities available to heterosexual couples through marriage."341 The
Constitutional Court suspended judgement for 12 months, allowing Parliament to amend the marriage legislation. The lone partial dissent came from O'Regan J who agreed with the judgement of the Court but not the remedy. She would have immediately read in the change to the existing marriage law, rather than suspending judgement and allowing
Parliament to respond.342
In November, 2006, the South African Parliament responded to the High Court passing the Civil Union Bill by a margin of 230-41.343 Although this legislation has the term "civil union" in its title, it actually fulfills the Court's requirement of full same-sex marriage, though it does provide a voluntary option of "civil union." That is, it gives to all South Africans the option of marriage or a civil union. As we saw in the last chapter
338 BBC News, "SA Same-Sex Marriage Law Signed," (2006), http://news.bbc.co.Uk/2/hi/6159991.stm. 339 Minister of Home Affairs and Another v Fourie and Another, CCT 60/04 524 (2005). 340 Ibid, at para 72. 341 Ibid, at para 78. 342 Ibid, at para 105. 343 BBC News, "SA Same-Sex Marriage Law Signed."
141 with prisoner voting, the South African Court is not afraid to overshoot the middle and to move directly from the conservative to the liberal end of the policy continuum. Clearly the involvement of the South African Constitutional Court stimulated a shift away from the most conservative pole, but it was at the expense of the moderate middle compromise of civil unions only.
Finally, it is worth returning to the United States and the rather special case of
California, which involves a particularly intriguing interplay between courts, legislatures, and the public. California, like New Jersey and Connecticut, had middle ground legislation giving many of the rights and responsibilities of marriage to same-sex couples.
As in New Jersey and Connecticut, therefore, the most likely constitutional challenge would attack the adequacy of this middle ground solution. However, unlike New Jersey and Connecticut (but like Iowa prior to 2009) California is a DOMA state that explicitly protects the tradition of heterosexual marriage. A legal challenge in California must thus attack the constitutionality of the state's DOMA, and, unsurprisingly, such challenges have arisen.
In fact, two successive DOMAs, the first statutory (like Iowa's) and the second constitutional, have been challenged. Both DOMAs were the result of popularly initiated ballot propositions. In 2000, Californians voted in favour of Proposition 22, a statutory
DOMA, by a 61.4 - 38 percent margin. The state legislature was not entirely on-side and in 2005 passed a bill, which would have recognized same-sex marriage. Citing
142 proposition 22, Governor Schwarzenegger vetoed this bill. The battle soon shifted to the courtroom.
In 2008, the California State Supreme Court in a 4-3 decision struck down
Proposition 22's statutory ban of same-sex marriage, arguing that sexual orientation
"does not constitute a legitimate basis upon which to deny or withhold legal rights."345
The California majority did not go as far as the Iowa Court would a year later. The
California judges denied that they were creating a right to same-sex marriage; in striking down a ballot proposition banning same-sex marriage, they were simply re-establishing legislative discretion on the issue, making room, as it were, for the kind of legislative bill proposed in 2005, but not requiring such legislation.346
Opponents of same-sex marriage were not prepared to leave the question to the legislature, however. In response to the Supreme Court's ruling, they initiated another
DOMA proposition (Proposition 8). Unlike Proposition 22, however, Proposition 8 was no mere statutory ban; rather it amended the state Constitution, placing full constitutional weight behind the tradition of heterosexual marriage.347 In 2008 proposition 8 passed
52.2 to 47.7 per cent.
What courtroom strategy was left to proponents of same-sex marriage? How, in other words, can one claim that the constitution itself is unconstitutional? Difficult as such a manoeuvre might seem at first glance, it was in fact possible. Indeed, it turns out
344 John Ritter, "Calif. Governor to Veto Same-Sex Marriage Bill," USA Today (2005), http://www.usatoday.com/news/nation/2005-09-07-gay-marriage_x.htm. 345 Miller, Direct Democracy and the Courts, 1. 346 Ibid. 347 CNN News, "US Election 2008: Ballot Measures," http://www.cnn.com/ELECTION/2008/results/ballot.measures/.
143 that there are two ways of challenging the constitutionality of Proposition 8. First, one could argue, under the state constitution, that Proposition 8 was more than an
"amendment" of that constitution, that it actually amounted to a "revision." The
California constitution distinguishes between these two kinds of constitutional change. A constitutional "amendment" can be achieved by simple majority vote in a public referendum, but a "revision" requires a two-thirds majority in both houses of the state legislature.348 In 2009, the state Supreme Court decided a challenge claiming that by eliminating a fundamental right (same-sex marriage), Proposition 8 revised rather than amended the constitution. The same Court that had narrowly struck down Proposition 22 four years earlier, now rejected this new challenge by a 6-1 margin. Chief Justice Ronald
George, writing for the majority, observed that Proposition 8 only restricted marriage and did "not otherwise affect the fundamental rights of same-sex couples."349 Accordingly,
Proposition 8 was an "amendment" that could legitimately be passed by majority vote.
He further acknowledged that when such amendment was possible, as in this case,
California had a "strong form of democracy," which "gave the people, not the court, the last word on a contested issue."350 The California constitution, in short, arguably falls into
Tushnet's category of documents that sustain "weak form" review because of the comparative ease of overriding judicial decisions though constitutional amendment.
This decision leaves only one other legal challenge open to California proponents of same-sex marriage. They can claim that Proposition 8, now a part of the California
Miller, Direct Democracy and the Courts. ' Strauss v Horton, 46 Cal.4th 364 (2009), at para 59. ' Miller, Direct Democracy and the Courts, 12.
144 constitution, violates the federal Constitution, which is the archetypical document
sustaining "strong-form" judicial review. Indeed, this option was initiated when a
Federal District Court struck down Proposition in August of 2010. District Court Judge
Vaughn Walker concluded that Proposition 8 "is unconstitutional under both the due
process and equal protection clauses [of the federal constitution]."351 The decision has
been appealed to the Ninth Circuit.
In order to be fully successful, a challenge along these lines would, strike down
not only California's DOMA but the many other DOMAs in the United States, both
statutory and constitutional. A potential intermediate option for the Supreme Court would
be to invalidate the bans on civil unions but not those on full same-sex marriage. Another
intermediate possibility might be to strike down the constitutional bans but uphold the
statutory bans on same-sex marriage, thus preserving a greater degree of political
discretion on the issue. Thus far, however, the United States Supreme Court has given no
indication that it is willing to tackle these issues.
To summarize, this survey of judicial opinion reveals a pattern not unlike that
seen with respect to prisoner voting rights in the previous chapter. Although the
conservative pole of no formal recognition of same-sex relations still exists - to a greater
extent, in fact, than blanket disqualification of prisoner voting - it is difficult to find judicial decisions that clearly endorse it. The European Court endorses a degree of
legislative discretion that might permit the conservative pole, but it does so in a
legislative context favourable to civil unions and it explicitly underlines the gathering
351 Perry et al v. Schwarzenegger, 2010 U.S. Dist. LEXIS 78817 (2010).
145 consensus in favour of at least such intermediate policies. California's Supreme Court upheld a DOMA in 2009, but did so in large measure because of its constitutional status, and after having struck down a statutory DOMA four years earlier in the name of legislative discretion. And again, it upheld the constitutional DOMA in the context of state laws establishing domestic partnerships. The Vermont and New Jersey's Supreme courts went further in a liberal direction by explicitly establishing civil unions as a constitutionally minimal requirement, but left the matter of full same-sex marriage to legislative discretion. Clearly the middle ground of civil unions has been acceptable to many judges.
Not to all judges, of course. Judicial endorsement of the liberal pole of the policy continuum (full same-sex marriage) is much more common than any judicial tilt toward the conservative pole. It bears noting, for example, that the legal status quo of civil unions, but not same-sex marriage, was upheld by the narrowest of margins in New
Jersey (though it had attracted judicial unanimity several years earlier in Vermont). The shift of a single vote in New Jersey would have led to the constitutional requirement of same-sex marriage.
That critical swing vote emerged in favour of same-sex marriage in the
Massachusetts and Connecticut judgments. Again, however, it is worth underlining the narrowness of the decision in both states. Even when appeal court panels have made the leap directly to same-sex marriage, it has remained highly controversial among the participating judges. Only in Iowa and South Africa do we find a unanimous judgment in favour of full same-sex marriage. Overall, there is more than enough support for civil
146 unions and domestic partnerships to underline their bona fides as plausible middle ground positions.
Public Opinion
The same conclusion emerges from an analysis of public opinion data. While much of the pubic opinion data is based in the US, these data suggest there is more support for the moderate middle position of civil unions than for full same-sex marriage.
Both start as minority positions, with support increasing over time, but civil unions have clearly become more popular than same-sex marriage. Indeed, civil unions currently attract majority support in the United States while support for same-sex marriage continues to be a minority position.
On the matter of full same-sex marriage, Gallup began asking the following question in 1996: "Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?"
At this early point (1996) about two-thirds (67 per cent) of Americans were against same sex marriage, while only 27 per cent were in favour. By 2000 support had gone up to about 40 percent and opposition down to about 60 percent, a pattern that continued throughout the 2000's:
• Los Angeles Times (2003): "Do you support or oppose allowing same-sex
couples of marry, or haven't you heard enough about it yet to say?" Thirty-one
147 per cent in favour, 55 per cent opposed (14 per cent had not heard enough to
comment)352
• Time/CNN Poll (2004): "Do you think marriages between homosexual men or
between homosexual woman should be recognized as legal by law or not?" 30 per
cent yes, 62 per cent no.353
• Gallup (2005): "Do you think marriages between homosexuals should or should
not be recognized by the law as valid, with the same rights as traditional
marriages?" 39 per cent in favour, 58 per cent opposed354
• Pew Research (2006): "do you strongly favour, favour, oppose, or strongly
oppose allows gays and lesbians to marry legally?" 35 per cent in favour, 56 per
cent opposed.355
• Quinnipiac University (2008): "In general do you support or oppose same-sex
marriage?" 36 per cent in favour, 55 per cent were opposed.356
• CNN/Opinion Research Corporation (2009): "Do you think marriages between
gay and lesbian couples should or should not be recognized by the law as valid,
with the same rights as traditional marriage?" 44 per cent in favour, 55 per cent
opposed.357
352 Polling Report, "Law and Civil Rights," (2010), http://www.pollingreport.com/civil.htm. N=1345. 353 Ibid. N=1000. 354 Ibid. N=515. 355 Ibid. N=2003. 356 Ibid. N=1783. 357 Ibid. N=1013.
148 • Gallup 2010: Do you think marriages between homosexuals should or should not
be recognized by the law as valid, with the same rights as traditional marriages?"
44 per cent in favour, 56 per cent opposed.358
In short, while the opposition to same-sex marriage in the U.S. decreased somewhat from the mid-1990s, it has remained robust at about the 60 per cent level.
A similar result is found in Europe, considered as a whole. The 2006
Eurobarometer survey asked whether "homosexual marriages should be allowed throughout Europe?" The EU average indicated that 44 per cent of respondents indicated it should be allowed. However, this European average is less revealing than significant differences among countries. Answers to the Eurobarometer question ranged from 82 per cent in favour in the Netherlands, to only 12 per cent in Latvia. Eight EU countries indicated majority support for same-sex marriage.359 Among those expressing majority opposition to same-sex marriage were France (52 per cent), the UK (54 per cent), Finland
(55 per cent), Italy (69 per cent), Portugal (71 per cent), Malta (82 pre cent) and Greece
(85 per cent).360
In Australia there is increasing public support for same-sex marriage. A 2004 poll asked, "Are you personally in favour or against same-sex couples being given the same rights to marry as couples consisting of man and a woman?" Respondents indicated 38
358 Gallup, "Gay Marriage May 24, 2010," (2010), http://www.gallup.com/poll/128297/Gay-Marriage- May-2010.aspx.N=1029. 359 Netherlands 82%, Sweden 71%, Denmark 69%, Belgium 62%, Luxembourg 58%, Spain 56%, Germany 52% and the Czech Republic 52%. European Commission, "Eurobarometer 66: Public Opinion in the European Union," (2006), http://europa.eu.int/comm/public_opinion/index_en.htm N= Approximately 1000 per country.
149 per cent in favour, while 44 per cent were opposed.361 By 2007, a dramatic change had taken place. In June of that year, a Galaxy poll indicated that 57 per cent of respondents favoured same-sex marriage. Two years later, a Galaxy poll found 60 per cent of
Australians would favour same-sex marriage, with 36 per cent opposed.362 In 2009
Gallup asked, "Do you agree or disagree that same-sex couples should be able to marry in
Australia?" Fifty-nine per cent of respondents indicated they should be able to marry.363
In Australia, then, there is growing majority support for same-sex marriage.
Canada too has seen an increase in support for same sex marriage. For example:
• In 2004 Leger Marketing asked: "are you in favour or not of same-sex
marriages?" Forty-three per cent of respondents indicated support, while 47 per
cent were opposed.364
• In February 2005 an SES Poll asked: "Do you support or oppose same-sex
marriage?" Thirty-nine per cent agreed, while 37 per cent were opposed.365
• In April 2005 (about the time the issue was being debated in Parliament), an
Environics Poll asked: "Do you agree or disagree with changing the definition of
361 Angus Reid Global Monitor, "Australians Split over Same-Sex Marriage," (2004), http://www.angus- reid.com/polls/view/3086/australians_split_over_same_sex_marriage. N=1200. 362 Ari Sharp, "Rise in Support for Gay Marriage," The Age (2009), http://www.theage.com.au/national/rise-in-support-for-gay-marriage-20090616-ce8k.html. N=1100. 363 Angus Reid Global Monitor, "Australians Favour Same-Sex Marriage," (2009), http://www.angus- reid.com/polls/view/australians_favour_same_sex_marriage/. N=l 100. 364 Leger Marketing, "Same-Sex Marriage, Adoption Divides Canadians," (2004), http://www.angus- reid.com/polls/view/2809/same_sex_marriage_adoption_divides_canadians. N= 1511. 365 SES Research, "Canada Remains Split over Same-Sex Marriage," (2005), http://w\ reid.com/polls/view/5898/canada_remains_split_over_same_sex_marriage. N=l 000.
150 marriage?" Fifty-two per cent disagreed with changing the definition, while only
44 per cent agreed.
• In July 2005, about a month after same-sex marriage legislation was passed, the
Strategic Council asked: "Do you think Bill C-38 should stand or be repealed by
the next government?" Fifty-five per cent of respondents indicated it should stand
while only 39 per cent said repeal.367
By 2009, a majority of Canadians were supportive of same sex marriage.368 Angus Reid asked, "Should same-sex couples be allowed to legally marry?" Sixty-one per cent of respondents indicated they should be allowed to marry.369 In contrast to the US,
Canadian support for same-sex marriage has increased to about 60 per cent, and maintains a steady level of support.
As for civil unions, they, too, gained only minority support for a time but now clearly enjoy the favour of majorities. In the US, majority opposition to civil unions continued as late as 2003, when the Associated Press asked "Would you favour or oppose allowing gays and lesbians to form a civil union that would give a same-sex couple the same rights and benefits as a married couple?" Fifty-three per cent of respondents opposed civil unions while 41 per cent were in favour.370
Environincs Research Group, "Most Canadians Reject Same-Sex Marriage Bill," (2005), http://www.angus-reid.com/polls/view/6731/most_canadians_reject_same_sex_marriage_bill. N=1203. 367 The Strategic Council, "Canadians Support Same-Sex Marriage Bill," (2005), http://www.angus- reid.com/polls/view/8147/canadians_support_same_sex_marriage_bill. N=1000. 368 Angus Reid Strategies, "Canada More Open to Same-Sex Marraige Than Us., Uk," (2009), http://www.angus-reid.com/polls/view/34194/canada_more_open_to_same_sex_marriage_than_us_uk. N= 1006. 369 Ibid. N=1006. 370 Polling Report, "Law and Civil Rights." N=1028.
151 A Los Angeles Times Poll, also in 2003, found similar (though somewhat more nuanced) results. The poll asked:
"Would you support or oppose allowing same-sex couples to form civil unions that are not marriages, but would give similar legal protection in areas such as inheritance, taxes, health insurance and hospital visits, or haven't you heard enough about it yet to say?"371
As with the Associate Press poll of that year, 40 per cent opposed civil unions. However, only 36 per cent of respondents supported civil unions. The question clearly invited respondents to decline clear support one way or the other and indicate instead that they didn't know enough to form an opinion. Twenty-four per cent took this option, raising the question of what the results might be if people simply knew more about civil unions.
Another 2003 poll helps to answer this question. The poll, by National Public
Radio, asked two different questions regarding civil unions. The first question was relatively uninformative about civil unions: "Do you favour or oppose a law that would allow homosexual couples to legally form civil unions, giving them some of the legal rights of married couples?"372 Respondents replied 42 per cent in favour 49 per cent opposed. The second question was more informative: "Do you favour or oppose a law that would allow homosexual couples to legally form civil unions, giving them the legal rights of married couples in areas such as health insurance, inheritance, pension coverage and hospital visiting privileges'?" (emphasis added).373 On this question, respondents were a more evenly split 45 per cent in favour and against, suggesting that
371 Ibid. N=1345. 372 Polling Report, "Law and Civil Rights." N= 501. 373 Ibid. N=501.
152 greater knowledge brings greater support for civil unions (though still not majority
support at this time). One should acknowledge, however, that the differences between the
two questions are not large. Moreover, the above mentioned 2003 Los Angeles Times
poll was as informative as the Public Radio poll (specifying such benefits as "inheritance,
taxes, health insurance and hospital visits"); yet it elicited only 40 percent support for
civil unions. One wonders what the Public Radio poll would have found had it included a
"don't know enough" option.
If the 2003 polls don't fully tease out the relationship between knowledge and
support, more recent data allow more solid conclusions. In the aftermath of the 2002
Massachusetts same-sex marriage ruling (discussed above), civil unions, as an alternative
to same-sex marriage, became more prevalent in public discussion. One might assume in
this context that people came to know more, and also that some people with conservative
inclinations might come to support civil unions as the "lesser evil." These speculations
are at least consistent with a 2004 poll commissioned for CNN-USA Today, which asked
a relatively uninformative question: "Would you favour or oppose a law that would allow
homosexual couples to legally form civil unions, giving them some of the legal rights of
married couples?"374 When virtually the identical question was asked a year earlier by
National Radio, we saw only a 40 percent support for civil unions. The 2004 CNN-USA
Today poll, by contrast, showed a jump to 54 per cent support for civil unions.375
Ibid.N=1005. Polling Report, "Law and Civil Rights." N=466.
153 A 2006 Quinnipiac University Poll is particularly revealing insofar as it explicitly
invoked the New Jersey ruling as context for a question about the relative merits of civil
unions and same-sex marriage:
The New Jersey Supreme Court recently ruled that homosexual couples are entitled to the same rights as heterosexual ones and that state legislators must rewrite New Jersey laws to make this happen. If you had to choose in your state, which would you prefer: allowing same-sex couples to form civil unions or allowing same-sex couples to get married?"376
Forty-four per cent of respondents indicated support for civil unions. This is obviously a
lower level of support than the 54 percent that supported civil unions on the CNN-USA
Today poll, but notice that in the Quinnipiac poll, civil unions are a minimum option
existing alongside the more liberal option of same-sex marriage. The latter was supported
by 24 per cent of respondents, many of which, had they answered the CNN-USA Today poll would have supported the lesser (and only) option presented in that poll: civil unions.
Had the Quinnipiac poll asked the same, more limited question as the CNN-USA Today poll, one could plausibly expect support for civil unions to be as great and probably higher.
Certainly by 2009 a trend in favour of support for civil unions was clear. In that year, a CNN-Opinion Research Corporation asked: "if a state's government does not legally recognize marriages between gays or lesbians, do you think that state should or
should not allow gay and lesbian couples to form civil unions which would give them
some of the legal rights of married couples?" Sixty per cent of respondents were now in
Ibid.N=1623.
154 favour of civil unions while 38 per cent were opposed, virtually a mirror image of opinion at this time on the same-sex marriage question. A Quinnipiac University Poll shows similar results. When asked "Would you support or oppose a law in your state that would allow civil unions for same-sex couples?" respondents indicated 57 per cent
-37R support and only 38 per cent opposition.
Outside the U.S. data on support for civil unions is rare, in part because the question is not usually asked. However, support for a marriage-like scheme also finds support in Australia. In 2006, a Newspoll asked, "Do you agree or disagree? - The federal government should introduce a new law which formally recognizes same-sex relationships?" Fifty-two per cent indicated support.379 The above-mentioned 2007
Australian Galaxy poll also indicated overwhelming support for de facto relationships.
Respondents were asked, "Do you agree or disagree with same-sex couples having the same legal rights as heterosexual partners in common-law marriages?" Seventy-one per cent of respondents indicated support for a legal regime which vests rights and responsibilities of marriage on same-sex couples stopping short of full marriage, significantly higher than the 59 per cent that supported full same-sex marriage.
Overall, support for same-sex marriage has been on the rise, attaining majority levels on some jurisdictions. Civil unions similarly become more popular over time, generally showing higher levels of support than full same-sex marriage.
377 Ibid. N=1005. 378 Ibid. N=2041. 379 Angus Reid Global Monitor, "Australians Bake Same-Sex Civil Unions," (2006), http://www.angus- reid.com/polls/view/10947/australians_back_same_sex_civil_unions. N=l 139. 380 , "Australins Back Same-Sex Marriage," (2007), http://www.angus- reid.com/polls/view/16291/australians_back_same_sex_marriage. N=1100.
155 We can safely conclude that civil unions or domestic partnerships constitute a plausible middle ground position on the issue of same-sex relations, one that has significant representation and support in comparative policy, judicial opinion, and public opinion. We should also note the broad similarities, over time, in public opinion in
Canada and Australia. Australians are no less supportive of same-sex marriage than
Canadians, yet (as we shall see) Australian public policy on this issue remains more conservative than Canadian policy. Since the two political cultures seem quite similar on this issue, institutional differences more readily explain the different policy outcomes. I turn now to a comparative assessment of the impact of the differing institutional frameworks.
Same-Sex Marriage in Australia
In Australia, marriage is the exclusive domain of the Commonwealth Parliament.
This power is found in the Constitution in section 51(xxi), one of the 39 enumerated powers. Because of the exclusive dominion over marriage by the Commonwealth,
Australian states and territories, unlike their American cousins, are unable to pass DOMA legislation. Logically, they are also unable to pass into law full same-sex marriage. Yet, nothing in the Australian Constitution prohibits Australian states from extending spousal benefits or a civil union scheme to same-sex couples.
As in most common law countries, the Australian definition of marriage relied on the common law (a man and a woman to the exclusion of all others, entered into voluntarily for life) and was largely uncodified until very recently. In 1961, the Menzies
156 Government moved to introduce a Commonwealth Marriage Bill, for the purposes of
streamlining taxation and spousal benefits. Since same-sex marriage was not on the
public agenda, it was not considered necessary to codify the traditional definition. Indeed,
during second reading, then Attorney-General Barwick said, "it will be observed there is
no attempt to define marriage in this bill."381 When the issue was raised during Senate
debate, by a Country Party Senator, who proposed an amendment defining "marriage" as
the "voluntary union of one man with one woman, for life to the exclusion of all others,"
the amendment was defeated in the Senate, 40 votes to 8.382 It was defeated not out of
any opposition to the traditional definition, but because that definition was so obvious to
everyone that there was no need for codification. It was simply assumed that marriage
would maintain the common law definition.
The strength of this assumption is evident in a guide or suggestion to marriage
celebrants (e.g., ministers) contained in section 46 of the 1961 Act. That section advises
celebrants to explain to the couple the nature of marriage in Australian law with words
that include, "[m]arriage, according to the law of Australia, is the union of a man and a
woman to the exclusion of all others, voluntarily entered into for life [or words to that
effect]." It is important to note, that this was meant as a guide rather than a definition of
marriage.
It was not until 2004 that the Marriage Act was once again in the spotlight, with the Howard government proposing its amendment. By this time, same-sex marriage had
381 Jennifer Norberry, "Law and Bills Digest No. 155: Marriage Legislation Amendment Bill 2004," (Canberra: Information and Research Services, Parliament of Australia, 2004).
157 become a matter of significant controversy worldwide, and Australia was no exception.
As noted above in the public opinion section, there is deep division in Australian society over whether to legally recognize same-sex couples. The primary purpose of the Howard
Government wading back into the marriage debate was to codify the traditional definition of marriage. In addition, the government proposed to exclude the recognition of same- sex marriages from international jurisdictions (e.g. Canada) and to prevent same-sex couples from adopting international children.383
In his second reading speech, Attorney-General Phillip Ruddock outlined the reasons for the amendment:
The government has consistently reiterated the fundamental importance of the place of marriage in our society. It is a central and fundamental institution. It is vital to the stability of our society and provides the best environment for raising children. The government has decided to take steps to reinforce the basis of this fundamental institution.384
Later in the process the Attorney-General highlighted the importance of the legislation's ban on recognition of foreign same-sex marriages, citing cases of couples seeking such recognition as contributing to "a significant community concern about the possible erosion of the institution of marriage."385 Ruddock further claimed: "It is the government's view that the provisions of the marriage act which we are seeking to enact should not... having restricted it to those matters that relate to a definition of marriage
Phillip (Attorney-General) Ruddick, "Title: Second Reading - Inquiry into the Provisions of the Marriage Legislation Amendment Bill 2004," (2004), http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002- 04/marriage/info/second_reading.doc. 385 Government of Australia, "House of Representatives Official Hansard," (Parliament of Australia, 2004).
158 and the recognition of overseas marriage, which they support - that they receive speedy
passage."386
Given this study's focus on the relationship between courts and legislatures, it is
important to note that the Howard Government saw codification of the traditional
definition of marriage as a way to forestall gradual implementation of same-sex marriage
by the courts. In an address to the National Marriage Forum, Prime Minister John
Howard said:
If there is to be a change in the understanding of marriage in this country [...] it is not something that should happen bit by bit, judgement by judgement, through a judicial process. Rather, if there is a change, it is a change which is to be legislated by an expression of will of the Australian people through the national parliament.
It is clear that Prime Minister Howard was not concerned with the possibility of policy
being moved from one extreme pole to the other via the judicial process, as happened in
Massachusetts or South Africa. Rather, he was worried about the ability of courts when
faced by under-specified legislation to choose novel interpretations. For example, judges
might decide, in a benefits case or a recognition case, to read the neutral "marriage"
language as if it applied to same-sex couples. Since the existing legal definition of
marriage was a matter of judge-made common law, moreover, judges might feel free, in
absence of clear legislation, to engage in creative evolution of their own work. The
proposed legislation Marriage Amendment Act intended to prevent this by entrenching
Right Honorable John Howard, "Transcript of the Prime Minister the Hon John Howard Address to the National Marriage Forum," ed. Prime Ministers Office (2004).
159 the traditional definition of marriage, making it much harder for the courts, with only
"weak-form" judicial review, to overturn.
Significantly, there was bi-partisan support for the main provisions of the legislation - namely entrenching the traditional definition of marriage and banning recognition of international same-sex marriages. Shadow Attorney-General Nicola Roxon said in a press release "Labor has made it clear that we do not support gay marriage."388
At a later point in the legislative process, she underlined the point: "the content of the bill is something that we do not have an objection to, and obviously we will not be voting against the bill."389 And at the same National Marriage Forum conference at which the
Prime Minister made the comments about judicial power quoted above, the Shadow
Attorney General reiterated Labor's support: "Labor supports these provisions [banning same-sex marriage and recognition of overseas marriages].390 As we will see below,
Labor would raise a number of issues and concerns about the legislation, but its support for its essential elements remained firm throughout a lengthy legislative process. It was clear, then, that Australia would pass something like the American DOMAs that were being enacted in roughly the same time period
But what kind of DOMA would it resemble? The kind represented by the 18 U.S. states that also prohibited the intermediate position of civil unions, or the kind represented by the 24 states whose DOMA legislation limited "marriage" to heterosexuals but left the door open to civil unions or domestic partnerships? The
388 Donna Cooper, "For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-Sex Marriage?," Australian Journal of Family Law 19, no. 2 (2005). 389 Ibid. 390 Nicola Roxon, "Speech to the National Marriage Forum," (2004).
160 legislation did not in fact contain a broad and explicit prohibition along the lines of the
more Conservative American DOMAs, perhaps because it would have jeopardized, the
support of Labor, which wanted at least some degree of recognition and support same-sex
couples, especially with respect to superannuation benefits. Thus, the proposed
legislation tilted heavily toward the conservative position, but did not reach the extreme position exhibited by some US DOMAs.
Indeed, in response to Labor's concerns, the legislative process addressed the
question whether at least some limited and particular marriage-like benefits should be made available to relationships outside of marriage. The two main issues here were the
aforementioned superannuation question and the ability of same-sex couples to adopt
children. On these issues the bi-partisan agreement broke down, with Labor supporting
superannuation rights outside of marriage and opposing Commonwealth prohibition of
adoption rights for same-sex couples.
Labor won a quick victory on the superannuation issue. In an early tradeoff to maintain bi-partisan support, the Howard government agreed to amend the bill to allow
gay couples to have the same rights of superannuation as married couples.391 This provision was made more palatable to conservative sensibilities by a wording that did not explicitly target homosexual couples. Instead, it was phrased in terms that did not require any kind of conjugal relationship. True, gay and lesbian couples could invoke the provision, but so could elderly sisters living together in an interdependent relationship.
Cooper, "For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-Sex Marriage?"
161 Labor did not win a similarly quick victory on the adoption issue. Adoption was a matter of state jurisdiction, and Labor MPs were hesitant to be seen interfering with state matters - especially with a federal election and pre-selection on the horizon. At least in the early stages of the policy debate, however, the Howard government insisted on keeping this provision. Labor was not, however, prepared to oppose the legislation on this ground, at least in the House of Representatives. With Labor's support, the legislation passed that House with ease.
In the Senate, however, the legislation received a rougher ride. It did so, even though the government was in the unusual situation of having a majority in both houses.
Although it is typical for the government party in the House of Representatives to lack clear control of the Senate, in this case the government enjoyed a one-vote majority in the upper chamber. Because some Coalition senators were "soft" on this issue, however, the government's Senate majority turned out to be too narrow for comfort, and, as we shall see, it adjusted its draft law to ensure Senate support.394
The story begins when Labor Senators, in conjunction with soft-Liberal Senators,
Australian Democrats, and Greens, referred the bill to the Senate Committee on Legal and Constitutional Affairs for an inquiry. The Senate Committee was charged with looking at whether the power of legal interpretation of marriage was a Commonwealth
In Australia, nominations for the House of Representatives are controlled by the state, not the central party. Undue Commonwealth interference in state matters, especially in the Labor Party, may be detrimental to one's re-nomination chances. 394 Chris Aulich, Howard's Fourth Government (Sydney: University of New South Wales Press, 2008).
162 responsibility, whether the draft bill breached international treaties, and the potential consequences of the bill coming into law.395
Before the Senate Committee could report, the Howard government attempted to outflank the committee by reintroducing a new version of the bill - the Marriage
Amendment Act (no. 2) - that dropped the ban on adoption by same-sex couples. This shift was undertaken because Liberal Party and National Senators (in particular Senators
Humphries (ACT) and Joyce (Queensland)) were strong supporters of states' rights
(including adoption), and in this context the government's one-Senator majority, Howard could not discount a potential revolt.396
Even though Labor supported the removal of the adoption clause, there were widespread protests from Labor MPs about circumventing the established process of waiting for the Senate Committee to report. Nicola Roxon, the Shadow Attorney-General, conceded that Labor would still support the bill, but warned that her colleagues in the
Senate might not be as supportive. She was right about the House of Representatives. The
Bill quickly passed the lower house 76-58.
Senate, "Debates - August 12," (2004). Specifically the committee was charged with looking at the legal interpretation of the marriage power in the constitution, and the extent of this power with regard to the creation of marriage law and the recognition of foreign marriages 1. Whether the bill raises internal comity issues, or inconsistency with laws, politics and standards o domestic and overseas jurisdictions 2. Whether the bill breaches international instruments including the Hague Convention and human rights mechanisms prohibiting discrimination on the grounds of sexual orientation. 3. Whether treaties relied upon in Schedule [2] of the Bill provide the Commonwealth with the necessary power to act, and how this action interferes with state and territory responsibilities to legislation for and to run adoption processes 4. The consequences of the bill becoming law and those remaining avenues available to the Commonwealth for legal recognizing inter-personal relationships including same-sex relationships 5. The government's insistence that this Bill be introduced as a matter or urgency when there has been no demonstrated reason for its urgent introduction and no community consultation for the provisions of the bill 396 Aulich, Howard's Fourth Government.
163 Roxon was also right (at least partially) about more trouble for the Bill in the
Senate. As an initial expression of displeasure with the government's procedural haste, the Senate denied the new Ruddock amendment first reading in the Senate (27-25) in favour of the previously announced Committee process.397 The Senate did not follow through on this protest, however. Just two days later, on August 12, 2004, first reading was successfully accomplished in the upper house
Debate in the Senate was heated, with both the social conservative and libertarian positions finding support among Senators. Among those Senators who supported the traditional definition of marriage, Liberal Senator Barnett observed that marriage is "a loving and mutually respecting relationship between a man and a woman. Where children in this institution are protected and nurtured to grow and prosper in a safe and balanced environment."398 For National Party Senator Boswell, "marriage is a sacred union, the most basic building block of society and the foundation of a family. It is a union in which children can be created and brought up in a loving, secure environment."399 Independent
Senator Harradine argued:
the system of marriage between a man and a woman is one that has been relied on for thousands of years across the world and across all cultures. It has been tried and tested over time and found to be the best arrangement available. Moving away from this shared community standard would mean that marriage would become just one option in a list of relationship options. It would in fact lose its ,,400 meaning.
Australia, "Debates." House of Representatives Government of Australia, "Hansard," (2004). Ibid. 26533. Ibid. 26521.
164 Speaking for the other side, Australian Democrats Senator Bartlett said "[this amendment] will prevent people from being able to marry." Indeed, taking a play from the libertarian playbook Senator Bartlett argued
"[pjerhaps the lawyers amongst us would remind us that marriage is first and foremost a civil contract—a piece of paper that you sign and a contract into which you enter. That civil contract is what is reflected in the law, and what we are actually debating here today is an amendment to the civil law."401
In the view of long time Greens Senator Brown, "Today the government of this country and the alternative government, the Labor Party, are promoting hate, the most negative of human values, over love, the most positive and wonderful of human values."402
Here we see Madison's warning about factionalism in full flower: neither side was willing to engage the middle ground position. Serious consideration of civil unions or domestic partnerships played no role in the heated debate. At the same time, it bears repeating that the bill did not explicitly exclude them. In this sense the bill was like those
American DOMAs that entrenched the traditional definition of marriage but left room for a civil union scheme - a position close to, but not at, the conservative pole of the continuum. Of particular importance was the Senate's role in having the proposed ban on same-sex couples adopting children dropped. We have seen that even as jurisdictions extend recognition and benefits to same sex couples, they often draw the line at adoption rights. In Australia, a national legal prohibition on such rights was abandoned early on, although other rights and benefits associated with domestic partnerships or civil unions
1 Senate, "Debates - August 12."
165 would not come until later. With this change in place, and despite all of the heated rhetoric, the bill passed the Senate by a 38-6 margin.403
Although the Marriage Amendment Act (2004) did not engage the issue of civil unions, it proved impossible for the Commonwealth government to avoid that issue for
long. It was brought to a head when the Australian Capital Territory (ACT), passed the
Civil Unions Act 2006. The ACT has a long history of recognizing relationships between
same-sex couples, passing the Domestic Relationship Act as early as 1994.404 The 2006
Act created civil unions for both opposite-sex and same-sex couples with equal legal recognition under the Territorial law.
The Civil Unions Act 2006 immediately caused friction between the two levels of government. I indicated above that the Howard government actually favoured banning civil unions as well as full same-sex marriage. This claim is confirmed by its reaction to the ACT legislation, namely, that the Act was an attempt to contravene the constitutional powers of marriage, and the Marriage Amendment Act. The ACT countered that it had the constitutional authority to extend benefits to same-sex couples, which it had
successfully done in the 1994 Domestic Relationship Act.
Attorney-General Phillip Ruddock fired the Howard government's first shot just after Civil Unions Act was promulgated by the ACT, claiming that, "to assert that a civil union is a marriage in all but title, and we're going to use marriage celebrants to
Australian Capital Territory, "Domestic Relationships Act," (Canberra, 1994).
166 demonstrate that, let me make it very clear: that will not satisfy the Commonwealth."405
Prime Minister John Howard also weighed in: "[t]he legislation, by its own admission, is
an attempt to equate civil unions with marriage and we don't find that acceptable." The
Howard Government vowed to disallow the bill at the earliest opportunity, under Section
35 of the Australian Capital Territory Self-Government Act 1988, which reads: "the
Governor-General may, by legislative instrument, disallow an enactment [passed by the
ACT Legislative Assembly] within 6 months [of passage].407
On June 15th 2007, on the advice of the Attorney General, the Governor General
disallowed the Civil Unions Act on the grounds that it contravened the Marriage Act
1961 & 2004. The ACT Legislative Assembly subsequently moved to re-introduce the bill
under the new title, The Civil Partnerships Bill 2006, which was subsequently blocked by
the Commonwealth Parliament in February 2007.408 With the defeat of the Howard
Government in 2007, the ACT once more introduced the Civil Partnerships Act 2008.m
The 2008 Act follows a pattern established in such states as Tasmania, South Australia
and Victoria, which recognize the legality of same-sex relationships via relationship
registries or formal (contract) agreements.
405 Liz Foschia, "Ruddock Moves to Block Act Gay Marriage Proposal," (2006), http://www.abc.net.au/am/content/2006/sl604320.htm. 406 Sydney Morning Herald, "Gay Couples to Lose Right to Say 'I Do'," Sydney Morning Herald (2006), http://www.smh.com.au/news/National/Gay-couples-to-lose-right-to-say-I- do/2006/06/06/1149359735351.html. 407 Commonwealth of Australia, "Australian Capital Territory (Self-Government) Act 1988," (1988). 408 Kate Corbett, "Same-Sex Union Bill Blocked Again," New.com.au (2007), http://www.news.com.au/story /0,10117,21184064-421 ,OO.html?from=public_rss. 409 Cathy Alexander, "Corbell to Revive Gay Union Act," The Canberra Times (2007), http://www.canberratimes.com.au/news/local/news/general/corbell-to-revive-gay-union-act/329093.aspx.
167 In the 2007 Commonwealth Election, Kevin Rudd's Labor Party defeated the
Howard Liberal-National Coalition Government. This event signalled a dramatic turn on
the road to recognizing same-sex unions in Australia. The contribution made by
bicameralism to shifting Australia into the middle ground on the issue of same-sex
relationships was, as we have seen, fairly minor. But bicameralism is not the only
political check and balance that affects policy outcomes. The electoral cycle is another,
and in this case the latter check played a more significant role.
During the election campaign, the Labor Party promised to remove any legal
discrimination against gays and lesbians. In office, Prime Minister Rudd reiterated the
promise, observing that "we've also said that in terms of all legal discriminations against
same-sex partners that we would act to remove them, and the Attorney-General has been
hard at work."410 The measures passed by the Rudd Government removed over 100
inequalities of law vesting gay and lesbian couples with the same rights as de facto
opposite sex couples. Attorney General Robert McClelland said the reformed laws, "will
make a practical difference to the every day lives of a group of fellow Australian who
have suffered discriminations under Commonwealth laws for too long."
The measures stop short of full same-sex marriage, however. The Rudd
Government did not turn its back on Labor's consistent support of the Marriage
Amendment Act 2004, which entrenched the common law definition of marriage. Indeed, the updated Australian law maintains a statutory DOMA, but provides same-sex couples
with legal recognition and the same rights of taxation and social security as opposite sex
410 ABC News, "Rudd Firm on Gay Marriage Stance," (2009), http://www.abc.net.au/news/stories/2009/07/29/2639885.htm.
168 de facto couples. The overall result was to shift Commonwealth policy in Australia into
the middle ground. In effect, the Rudd government's legislative changes put the
Australian Commonwealth in the same category of jurisdictions as, say, Hawaii and
Wisconsin in the United States. The government was not, however, prepared to go as far
as the more extensive civil union schemes that exist in other American jurisdictions and
parts of Europe. As Prime Minister Rudd explained,
[w]e support the removal of discrimination from same-sex couples and from de facto heterosexual couples when it comes to basic arrangements in terms of tax, superannuation and the rest, and also a nationally consistent relationships register, but when it comes to civil unions, as it is described, civil unions mean the effective amendment of the Marriage Act, and that is something we don't 411
support.
Rudd's modest middle ground laws passed without amendment in both the House and the
Senate on December 9, 2008.412
So what lessons about moderation can we take from the Australian example?
First, even with a rare majority in the Senate and bipartisan support for the essence of the
legislation, the Howard Government was unable to pass its original marriage law.
Because of soft-support on the adoption issue from Liberal Senators unbeholden to the
Prime Minister, the Prime Minister was forced to reconsider his marriage bill. On the
second attempt a narrower version of the bill was passed, entrenching the traditional definition of marriage, but dropping the ban on international adoption by same-sex
411 Australian Associate Press, "P.M. Kevin Rudd Says No to Gay Marriage," Perth Now (2009), http://www.perthnow.com.au/lifestyle/pm-kevin-rudd-says-no-to-gay-marriage/story-e6frg3pl- 1225755944534. 412 Phillip Coorey, "Matching Rights for Gay Couples," Sydney Morning Herald (2008), http://www.smh.com.au/news/national/matching-rights-for-gay-couples/2008/04/29/1209234862823.html.
169 couples. More significantly, with the defeat of the Howard Government, the Rudd
Government undertook a further liberalization of Australia's marriage laws to include
same-sex couples in the de facto couples scheme, putting it into the middle ground,
though at a somewhat more conservative level than jurisdictions with more developed
civil union schemes.
Same-Sex Marriage in Canada
In Canada, the powers of marriage are split between the Federal and Provincial
Government. In 1867, the powers to define marriage were given to the Federal
Government (s. 91(26) of the BNA Act), while the powers of solemnization (issuing
marriage certificates and presiding over the civil ceremony) were given to the Provincial
Governments (92(12) of the BNA Act). As in the Australian case above, there was no
attempt to define marriage either in the Constitution, or in subsequent Marriage Acts.
There was one significant challenge to the Federal Powers in 1912. Clearly, it did
not deal with the issue of same-sex marriage, but rather the Marriage Act 1906, which
declared that every marriage, performed in accordance with the law where it took place
(Alberta for example), was to be a valid marriage anywhere in Canada.413 The Judicial
Committee of the Privy Council rejected that amendment as ultra vires the powers of the
Federal Parliament,414 holding that:
the Dominion Parliament does not, on the true construction of sees. 91 and 92, cover the whole field of validity....
413 EGALE Canada, "Division of Powers and Jurisdictional Issues Relating to Marriage " (2000), http://dsp-psd.pwgsc.gc.ca/Collection/JL2-14-2000E.pdf. 414 Re the Marriage Law of Canada, AC 880 (P.C.) (1912).
170 [T]he provision in sec. 92 conferring on the provincial Legislature the exclusive power to make laws relating to the solemnization of marriage in the province, operates by way of exception to the powers conferred as regards marriage by sec. 91, and enables the provincial legislature to enact conditions as to solemnization which may affect the validity of the contract.415
Simply put, the Lordships argued that both Federal and Provincial governments were required to complete the marriage contract.
As in most countries in the early to mid-20th century, the issue of same-sex relationships was not on the radar of the Canadian Government. Indeed, homosexual
activity was criminalized, and remained that way for much of the twentieth century. In
1965, Everitt Klippert, was arrested and jailed indefinitely as a "dangerous sex offender" for having sex with men, a habit he was "unlikely to change."416 The Supreme Court of
Canada upheld the sentence in R. v Klippert417
In 1967, when then Justice Minister Trudeau introduced the Criminal Law
Amendment Act (passing in 1969), he made his famous libertarian claim mentioned above, "that there's no place for the state in the bedrooms of the nation."418 Despite the
Act's decriminalization of homosexuality between consenting adults, however, it failed to liberate homosexuals from a position of legal inferiority. Gays and lesbians continued to
415 EGALE Canada, "Division of Powers and Jurisdictional Issues Relating to Marriage." 416 CBC News, "CBC News in Depth: Same-Sex Rights Canada Timeline," http://www.cbc.ca/news/background/samesexrights/timeline_canada.html. 417 R V. Klippert, S.C.R. 822 (1967). 418 CBC News, "CBC News in Depth: Same-Sex Rights Canada Timeline."
171 be the subject of socio-legal control (police raids on bath houses and gay bars, the continued linking of homosexuality to pedophilia).419
Indeed, it was not the Federal Government that would take the lead in protecting the equality rights of gays and lesbians beyond simple decriminalization, but rather the provincial governments. Beginning in 1977, Quebec was the first to add "sexual orientation" to its quasi-constitutional Charter of Human Rights and Freedoms as a prohibited ground of discrimination. Other provinces would follow, and by 2001 all provinces except Alberta, Prince Edward Island and the Northwest Territories would have sexual orientation as a prohibited grounds of discrimination in their human rights codes. Miriam Smith suggests that this active role taken by the provinces explains, in part, the success of the gay rights movement in Canada when compared to other parts of the world.420
The 1982 Charter of Rights and Freedoms has also played a significant role in the success of the movement, though it did not do so immediately. Indeed, sexual orientation was explicitly left out of the enumerated grounds of prohibited discrimination in the
Charter's equality clause (s. 15). Then Justice Minister Jean Chretien was adamant that his government did not want the words "sexual orientation" in the Charter of Rights.421
419 Ryan K. Schmidt, "The Courts and Same-Sex Marriage" (M.A., University of Calgary. 2005), 36. 420 M. Smith, "The Politics of Same-Sex Marriage in Canada and the United States," Ps-Political Science & Politics 38, no. 2 (2005). 421 F. L. Morton, "Brief," Submission to the House of Commons Standing Committee on Justice and Human Rights. (2000).
172 Despite this original political intention, however, the wording of s.15 left room for the eventual judicial addition of sexual orientation to the list of constitutional prohibited grounds of discrimination. Section 15(1) of the Charter reads as follows:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).
The emphasized portion makes it clear that the explicitly enumerated grounds are examples rather than a closed list of prohibited grounds of discrimination. Discrimination on other grounds must also be covered. The Supreme Court has indicated that unenumerated grounds must be analogous to the enumerated ones, and eventually it determined that sexual orientation was such an "analogous" ground. This enabled a gradual judicial assault on legislation excluding gay and lesbian couples from various legislated benefits, including eventually the benefit of marriage itself. Canada, in short, is now among the jurisdictions that have legalized full same-sex marriage, and the contribution of strong-form judicial review to this development is difficult to understate.
In broad terms, the comparative developments in Australia and Canada on same-sex relationship policy parallel those on prisoner voting rights. In both cases, Australia's greater reliance on legislative processes produced (or preserved) middle ground outcomes, while Canada's greater reliance on judicial processes shifted policy to the liberal pole of the continuum. The judicial contribution to same-sex marriage in Canada did not occur overnight, however. Moreover, it occurred despite the fact that Canada's
173 Supreme Court has yet to rule definitively on whether the Charter requires same-sex marriage.
The story begins with Egan and Nesbitt v. Canada (1995), a Supreme Court judgment that denied the claim of gay litigants but that nevertheless laid some of the doctrinal foundation required for subsequent liberalization. In Egan, the Court was asked to consider the constitutionality of excluding same-sex couples from federal old age security programs.422 Upon retiring, Egan filed for spousal support for Nesbitt, his gay partner of 21 years. The government denied the claim on the basis that Egan and his partner did not fit the definition of spouse (person of the opposite sex) under federal law.
Egan appealed this decision on the grounds that his partner's exclusion from the benefits was discrimination on the basis of sexual orientation.
The Court was narrowly divided, with five judges (Lamer, La Forest, Gonthier,
Major, and Sopinka) voting to deny Egan's claim and four (Cory, Iacobucci, L'Heureux-
Dube, McLachlin, and L'Heureux-Dube) voting to uphold his claim. Although Egan lost, however, the legal basis for gay rights jurisprudence in Canada did not. All nine judges agreed that "sexual orientation" was an "analogous ground" for section 15 purposes. The majority concluded that the exclusion of gays and lesbians from "spousal benefits" should nevertheless be sustained (either because it was justified as a "relevant" distinction under section 15 or a "reasonable limit" under section 1). Nevertheless, the solid establishment of sexual orientation as analogous to section 15's enumerated
Egan and Nesbitt v Canada, [1995] 2 S.C.R. 513.
174 grounds of discrimination laid the ground for continuing litigation on gay and lesbian issues.
The closely divided nature of the decision also held out the prospect of greater litigation success in the future. This is particularly so because the five judges who denied
Egan's claim, did not agree on all counts. Justice Sopinka, while agreeing with the other four in denying Egan's claim, wrote a separate, swing judgment, indicating the conditional and perhaps temporary character of his support for the existing exclusion of gays and lesbians from spousal benefits. While the other four judges on the majority side
- in an opinion written by Chief Justice Lamer - emphasized the protection of marriage as a "fundamental social objective" of the existing law,423 Justice Sopinka did not.
Indeed, in his reasons for upholding the law as a "reasonable limit" on equality rights under section 1 of the Charter, he emphasized that "it should not be assumed that
Parliament has made this choice for all time," and that this case should be "seen as a substantial step in an incremental approach" to changing the definition of spouse.424
The Court's acceptance of sexual orientation as an "analogous" ground of discrimination under section 15 in Egan provided the constitutional ammunition for
Vriend v Alberta (1998).425 Vriend did not concern "spousal" relationships, but it nevertheless signalled a strongly activist shift by the Supreme Court on gay rights issues, and thus further enhanced Justice Sopinka's portended shift on spousal issues. Vriend had been a laboratory coordinator at a private Christian school who had been fired when it
Ibid, at 538. Ibid, at 574. Vriend v Alberta [1998] 2 SCR 493.
175 was discovered he was gay. He challenged the legality of his firing with the Alberta
Human Rights Commission, but was informed by the Commission that sexual orientation was not a prohibited grounds of discrimination in Alberta under the Individual Rights
Protection Act (IRPA). Using the equality protections won in Egan, Vriend challenged the validity of the IRPA, arguing that because sexual orientation was a protected analogous non-enumerated right under section 15 of the Charter, anti-discrimination legislation that excludes this ground is unconstitutional. The Court unanimously agreed.
Moreover, 8 of the 9 Justices took the striking remedial step of reading sexual orientation into the Alberta A ct, rather than striking the legislation down and permitting the legislature, in its part of the interinstitutional "dialogue," to choose whether it wished to re-enact the law.426
Coming back to spousal relationships, the breakthrough predicted by Justice
Sopinka in Egan came in Mv H (1999):427 At issue in M v H was Section 29 of the
Ontario Family Law Act, which excluded same-sex couples from the legal protections provided to heterosexual common law couples in the event of a partnership ending. "M" was in a long-term lesbian relationship (12 years) with "H." Over the course of the relationship, they were completely interdependent financially, pooling all income and sharing expenses. When the partnership broke down, H informed M that she was not entitled to income or assets acquired over the 12-year period. Had this been a heterosexual common law relationship, M would have been entitled to legal protections
Ibid, at para 179. MvH, [1999] 2 SCR 3.
176 under section 19 of the Ontario Family Law Act.42* To the extent that these protections did not extend to same-sex couples, M would be out of luck. Accordingly, M, relying on the ground-work laid in Egan and Vriend, challenged the constitutionality of the heterosexual definition of "spouse" in the Act.
In an 8-1 decision, the Court held that M's assertion was correct. In an indication of how far the Court had come on the issue of same-sex relations, the same Chief Justice
Lamer who had written the "conservative opinion" in Egan now held that it was unconstitutional to exclude same-sex couples from legal definition of "spouse."429 Such exclusion, he wrote, implied that "same sex relationships are less worthy of recognition and protection.430 Only Justice Gonthier, in his lone dissent, maintained the former position of the Egan 4, that the heterosexual definition of "spouse" is not discriminatory because there is a "social function specific to opposite sex couples and their position as a fundamental unit of society."431
The Mv. if majority was more cautious on remedy than the Vriend majority had been, however. Instead of using "reading in" to remedy the situation itself, the Court struck down Section 29 of the Family Law Act and gave the Ontario Legislature 6 months to bring the Act into line with the Court's ruling.432 Only Justice Bastarache, in a
428 CBC News, "CBC News in Depth: Same-Sex Rights Canada Timeline." 429 Mv//at para 298. 430 Ibid, at para 306. 431 Ibid, at para 181. 432 Ibid.at para 145.
177 concurring opinion, would have immediately remedied the problem, suggesting there "is no need to be deferential."433
Mv. //clearly had implications extending well beyond the Ontario Act it had
invalidated. Although the judgment did not require full same-sex marriage, it required the extension of "spousal" benefits to same-sex couples. In short, it required a policy shift at
least into the middle ground of the policy continuum. The federal Parliament quickly made it clear that it would accept such a middle ground policy. At the same time, however, it also made it clear that it wished to draw the line at full same-sex marriage.
Part of Parliament's acceptance of the middle ground implication of Mv //came a mere five days after the ruling, when it passed the Act to Establish the Public Sector
Pension Investment Board434 The amended act gave survivor rights to same-sex couples.
Later Parliament passed the much more expansive Bill C-23 - The Modernization of
Benefits and Obligations Act435 - amending 68 federal statutes to bring them in line with the Mv Hruling.
During the same time period, however, Parliament was expressing DOMA-like views. Thus, in June 1999, the Chretien Government introduced the Definition of
Marriage Motion affirming the traditional definition of marriage:
In the opinion of the House, it is necessary in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one women to the exclusion of all others, and that Parliament will take all necessary steps within the
433 Ibid, at para 321. 434 Government of Canada, "C 34: Act to Establish the Public Sector Pension Investment Board," (Canada 1999). 435 , "Bill C-23: The Modernization of Benefits and Obligations," (Ottawa: 2000).
178 jurisdiction of the Parliament of Canada to preserve this definition of marriage (emphasis added).436
The Government even suggested that it would go as far as using the s.33 notwithstanding clause should a court subsequently rule that same-sex marriage was required. The
Definition of Marriage Motion passed 216-55 in favour of the heterosexual definition of marriage.437 As in Australia, this defence of marriage as traditionally understood attracted considerable multi-partisan support.
Unlike Defence of Marriage Acts, the Definition of Marriage Motion was, precisely, a motion, not a legislative enactment. Nevertheless, its spirit found some legislative expression. Thus, although Bill C-23 gave same-sex couples the same status and benefits as common law heterosexual partners, it maintained a distinction between common law relationships and marriage, with same-sex couples only permitted to enter into the former. Indeed, the bill contained a clause embodying the essential language of the Definition of Marriage motion. The clause stated that "for greater certainty, the amendments made by this Act do not affect the meaning of the word 'marriage', that is, the lawful union of one man and one woman to the exclusion of all o^ers'Xemphasis added).438 Taken together, the Definition of Marriage Motion and Bill C-23 expressed
Parliament's intention to position Canada within the middle ground on the policy continuum, much as Australia's Commonwealth Parliament did.439
CBC News, "CBC News in Depth: Same-Sex Rights Canada Timeline." 437 Ibid. 438 Ibid. 439 Alberta also entrenched the traditional definition of marriage in Bill 202, The Marriage Amendment Act. The Bill was primarily symbolic, however, Alberta does not have the constitutional authority to define marriage.
179 As compared to Australia, however, Canada occupied this middle ground
relatively briefly. By 2005, Canada had become one of the few jurisdictions to grant full
marriage rights to gays and lesbians. It did so, in part, because of ongoing litigation. In
Halpern et al v Attorney General of Canada, EG ALE Canada v Canada, and Hendricks
and Leboeufv. Attorney General of Quebec the Appeal Courts of Ontario, BC, and
Quebec respectively, found that the common law definition of marriage, i.e. "a man and a
woman to the exclusion of all others" was a violation of Section 15 equality rights that
could not be saved as a reasonable limit under section 1 of the Charter.440
Instead of appealing these decisions to the Supreme Court, the Federal
Government chose the route of a reference case to that Court. By this time, the Liberals,
perhaps in part because they wished to use this issue to paint their Conservative electoral
opponents as anti-Charter, had reversed their earlier defence of heterosexual marriage
(including their proposal to use s.33 to override contrary court decisions) and accepted the principle of same-sex marriage.441 The Chretien government thus drafted legislation to implement same-sex marriage and, in July of 2003, asked the Supreme Court of
Canada for its opinion on the constitutionality of the draft bill.
The primary question initially asked by the Reference re: Same-Sex Marriage442 was whether Ottawa had the constitutional power to change the legal definition of
Halpern et al v Attorney General of Canada et al 225 DLR 4th 529 (2003), Egale Canada v Canada (Attorney General), 225 DLR 4th 472 (2003), Hendricks and Leboeufv Attorney General of Quebec, 238 DLR (4th) 577 (2002). 441 See: Rainer Knopff and Andrew C. Banfield, "It's the Charter Stupid! The Charter and the Courts in Federal Partisan Politics," in The Canadian Charter of Rights and Freedoms at Twenty Five Years, ed. Joseph Eliot Magnet (Markham Ont: Butterworths, 2009). 442 The Reference Re: Same-Sex Marriage, [2004] 3 SCR 698.
180 marriage to incorporate same-sex couples - in short, whether same-sex marriage legislation was constitutionally permitted, a question highly likely to be given an affirmative answer. Significantly, the original reference did not ask the more contentious question of whether such legislation was constitutionally required. Eventually, Paul
Martin, Chretien's successor as Prime Minister, added this 'missing' question during the lead-up to the 2004 election ("probably as an attempt to defuse the issue somewhat for the upcoming election campaign and perhaps to delay a judgment until after the election").443
The opinion of the Court was delivered in December of 2004. Unsurprisingly, the
Court agreed that the constitution permitted the legislative enactment of same-sex marriage, both on federalism and Charter grounds. Perhaps more surprisingly, it declined to pronounce on whether the Charter required same-sex marriage, essentially leaving that question to another day, should the draft legislation not be enacted. In a purely formal sense, this ruling left the door open to middle ground civil-union legislation, but it was widely assumed that that the Supreme Court would ultimately strike down such legislation and require same-sex marriage if it were forced to decide the matter. This widespread assumption entered partisan politics in ways that made middle ground compromises virtually impossible. The Civil Marriage Act was introduced in to the
House of Commons on June 28th, 2005 and received Royal Assent on July 20, 2005.444
443 Knopff and Banfield, "It's the Charter Stupid! The Charter and the Courts in Federal Partisan Politics."; Jane Taber, "P.M. Aims to Bury the Bad in a Blizzard of Good," Globe and Mail 2004, Al. 444 Government of Canada, "Bill C-38: The Civil Marriage Act," (2005), http://www.parl.gc.ca/common/bills_ls.asp?Parl=38&Ses=l&ls=c38.
181 During the election campaign of 2006, Conservative Leader Stephen Harper
promised a free vote on whether to restore the traditional definition of marriage with a
civil union compromise.445 With his successful election the promised free vote took
place in parliament on December 6, 2006. The motion was defeated 175-123. In the
aftermath, Prime Minister Harper said, "I don't see reopening this question in the
future."446 To date, it has remained closed.
Conclusion
The moderate policy position on same-sex relations - some kind of "de facto"
benefits, domestic partnership arrangements, or civil unions - finds significant support in
liberal democracies, including some where the traditional definition of marriage is
affirmed by constitutional amendment or statute. It also finds support injudicial
decisions and broad support in public opinion. How does this middle ground position fare
in our case-study countries of Canada and Australia?
Broadly speaking, the situation parallels that found in the previous chapter on
prisoner voting rights. In both cases, Australia's policy process, with its heavier reliance
of political checks and balances, positioned that country somewhere in the middle
ground, whereas Canada's process saw strong-form judicial review take the country past
the middle to the liberal pole of the policy continuum. Again, those of the judicial-
polarization view will find some support in the Canadian experience with this issue. They
might well acknowledge that Charter-based litigation played a role in extending some of
445 See: Knopff and Banfield, "It's the Charter Stupid! The Charter and the Courts in Federal Partisan Politics." 446 CBC News, "MPs Defeat Bid to Reopen Same-Sex Marriage Debate," (2006), http://www.cbc.ca/canada/story/2006/12/07/vote-samesex.html.
182 the benefits of civil unions to same-sex couples (e.g., in Bill C-23), but would point to the ways in which continued judicial involvement contributed to Canada overshooting this middle ground compromise.
As with prisoner voting rights, however, this conclusion must be approached with some caution. In the previous chapter, I noted that the swing of a single vote in the
Supreme Court's second Sauve case would have preserved the middle ground. Here it bears repeating that the Supreme Court has not actually pronounced in any way on the constitutional requirement of same-sex marriage. Even so, it is difficult to imagine that the strong cross-partisan support received by the traditional definition of marriage in
1999 would have disintegrated as quickly as it did without ongoing litigation and the partisan advantages provided by "Charter politics."
In Australia, although middle ground outcomes on both prisoner voting rights and same-sex relationships are evident, the process whereby those outcomes were reached differs in important ways. On prisoner voting rights, the Australian Senate played a significant moderating role on several occasions, and when that role broke down, the
High Court - exercising more cautious review in a system generally characterized by weak-form judicial review - stepped in to fill the gap. On same-sex relationships, the
Senate played a smaller role (mainly on the issue of same-sex adoption rights), and the courts, similarly, had less impact than the High Court did on prisoner voting rights. On same-sex issues, the most substantial movements into the middle ground range came by way of the electoral cycle, when the left-leaning Labor Party took control of the lower house. Unlike the Liberals in Canada, by contrast, Australian Labor has not found it
183 advantageous to abandon its support of the heterosexual definition of marriage, no doubt partly because it has not been prodded in that direction by judges exercising strong-form
review.
184 CHAPTER 6: EUTHANASIA
"If I cannot give consent to my own death, whose body is this? Who owns my
life?"447 With this simple question, Sue Rodriguez thrust the issue of euthanasia into the
limelight of Canadian policy debate. When it comes to euthanasia and physician-assisted
suicide (PAS), many countries have dealt with high profile cases. Names like Jack
Kevorkian, Sue Rodriguez, Terry Shiavo, and Chantal Sebire dominate the editorial
landscape. These types of incidents attract large-scale attention to one of the most contentious moral policies: physician assisted suicide. On one hand, there is the ability to prolong life while on the other, the problem of how to treat those who decide their lives are no longer worth extending. Euthanasia, or physician-assisted suicide, is a consideration for those people who have conditions of terminal illness or incurable suffering. It is seen as a way of taking back one's death from life extending machines, or as a means of stopping incurable disease. This chapter attempts to understand how the differing institutional structures - Canada with Charter-enhanced judicial power, and
Australia with a reliance on overtly political checks - treat the moderate middle position on this moral issue.
This chapter has the same structure as the previous case-study chapters. I begin by situating euthanasia within the category of passionate, extreme-prone "moral politics." I then develop the full policy continuum, identifying the compromise position between the two extreme positions, and ask whether this plausible middle ground finds support in comparative public policy, comparative judicial opinion, and public opinion data.
447 CBC News, "The Fight for the Right to Die," FAQs Assisted Suicide (2009), http://www.cbc.ca/canada/story/2009/02/09/f-assisted-suicide.html#ixzz0t6XgtNpJ.
185 Finally, I examine how this issue fares with in the differing institutional contexts of
Canada and Australia
Euthanasia as Moral Politics
Moral theorists, academics, and physicians have contributed to a voluminous literature on various aspects of euthanasia and it is certainly one of those "moral issues" that has swept through the liberal democratic world in recent years.448 Like other moral issues, it is seen, at least by Lowi's "radicals" on either side, as a matter of fundamental and uncompromisable principle. For social conservatives, killing in any context is wrong.
Central to this view is the Judeo-Christian ethic where "life is on loan to us from God, and 'one's' passage from this life is subject to the will and power of God."449 As is characteristic of such radical moralisms, moreover, this position sees any attempted middle ground as little more than the edge of a slippery slope to the other extreme. Thus,
See for example: J. P. Bishop, "Euthanasia, Efficiency, and the Historical Distinction between Killing a Patient and Allowing a Patient to Die," Journal of Medical Ethics 32, no. 4 (2006); H. M. Buiting et al., "Dutch Criteria of Due Care for Physician-Assisted Dying in Medical Practice: A Physician Perspective," Journal of Medical Ethics 34, no. 9 (2008); G. L. Carter et al., "Mental Health and Other Clinical Correlates of Euthanasia Attitudes in an Australian Outpatient Cancer Population," Psycho-Oncology 16, no. 4 (2007); F. J. Coombe, ""Death Talk": Debating Euthanasia and Physician-Assisted Suicide in Australia," Medical Journal of Australia 179, no. 1 (2003); S. Frileux et al., "When Is Physician Assisted Suicide or Euthanasia Acceptable?" (2003); T. Lemmens, "Towards the Right to Be Killed? Treatment Refusal, Assisted Suicide and Euthanasia in the United States and Canada," British Medical Bulletin 52, no. 2 (1996); I. Marcoux, B. L. Mishara, and C. Durand, "Confusion between Euthanasia and Other End-of- Life Decisions - Influences on Public Opinion Poll Results," Canadian Journal of Public Health-Revue Canadienne De Sante Publique 98, no. 3 (2007); H. R. C. Pankratz, "The Sue Rodriguez Decision - Concerns of a Primary-Care Physician," Humane Medicine 11, no. 1 (1995); C. D. M. Sanchez and A. L. Romero, "Euthanasia and Physician-Assisted Suicide: Where We Are and Where We Are Going," Medicina Paliativa 14, no. 1 (2007); L. M. Solomon and R. C. Noll, "Physician-Assisted Suicide and Euthanasia: Disproportionate Prevalence of Women among Kevorkian's Patients," Gender Medicine 5, no. 2 (2008); K. Wilson, "Euthanasia and Physician-Assisted Suicide: Lessons from the Canadian National Palliative Care Survey," Journal of Palliative Care 20, no. 3 (2004). 449 WB Smith, "Judeo-Christian Teaching on Euthanasia: Definitions, Distinctions and Decisions," Linacre Quarterly 54, no. 1 (1987).
186 to permit a terminally ill and acutely suffering patient to self-administer a drug supplied by a medical professional is sometimes portrayed as the first step to Nazi-style genocide.450 On the libertarian side are those who are unprepared to compromise the right of individuals to choose what to do with their lives, including ending them at their unlimited discretion with the aid of a physician.
Individual freedom, we have seen, is the central good for libertarians, provided only that it is not used to harm others. This liberty extends to the decision to end one's own life. Nor can the physician who assists someone who wishes to die be understood as
"harming" another, and thus violating the libertarian harm principle. Helping someone fulfill his or her own freely chosen end cannot, in this view, be understood to "harm" that individual. Indeed, denying the requested assistance is the real "harm," because it substitutes someone else's judgment of what is right and good for the patient's own judgment, depriving them of control of their own life (and death). "Whose body is this," asks Sue Rodriguez in classically libertarian tones. "Who owns my life"?
Libertarian supporters of voluntary euthanasia thus suggest there is a "moral duty to respect the wishes of a patient who desires death as a final treatment."451 Moreover, they maintain that "quality of life," which is seen as a legitimate factor in decision making, should not be ignored if extending life will lead to prolonged suffering or a dehumanizing descent to death.452 Indeed, many theorists suggest the distinction - to be further discussed below - between allegedly more problematic "active" and less
450 J.A. Burgess, "The Great Slippery-Slope Argument," Journal of Medical Ethics 19 (1993). 451 Russel Ogden, "The Right to Die: A Policy Proposal for Euthanasia and Aid in Dying," Canadian Public Policy 20, no. 1 (March) (1994): 3.
187 problematic "passive" euthanasia is a fallacy. Here as elsewhere, of course, the more compromising and moderate perspectives of Lowi's "mainstream" politics exist, as the next section shows.
Euthanasia: the Policy Continuum
Let us begin by making some distinctions and setting some boundaries to our inquiry. First, it is important to note that we are not concerned with simple or direct suicide (the action of killing oneself intentionally), or attempted suicide (a failed attempt), but with euthanasia understood as physician-assisted suicide (PAS). The
Webster's Medical Dictionary defines "physician assisted suicide" as "the voluntary termination of one's own life by administration of a lethal substance with the direct or indirect assistance of a physician." There are two distinctions embedded in this definition: the distinction between voluntary and involuntary termination of one's own life, and the distinction between the direct or indirect assistance of a physician. In addition, of course, the definition implicitly distinguishes between suicide assisted by physicians and by non-physicians. Table three uses these distinctions to help clarify the issues at stake.
188 Table 3: Euthanasia by Type/Action
Self-administered death Other-administered death independent assisted passive active Voluntary Individual acts Individual self- others respect Others act on entirely alone administers individual's individual's (suicide) method explicit desire instructions to end supplied by not to be his/her life - e.g., others - e.g., treated or physician physician resuscitated administered drug, prescribed (instructed (direct PAS) drug {indirect inaction) PAS) Involuntary n/a n/a Others do not Others end treat or individual's life resuscitate without that without being individual's so instructed instruction/consent by patient (mercy killing) (merciful inaction)
To begin, a terminological clarification is useful. One of the Table's primary
distinctions is between "self-administered" and "other-administered" death. The
"administered" in "other-administered" - which is terminologically necessary as the
logical counterpart to ".^//"-administered - needs specification in order to avoid misunderstanding. Read literally and without context, "administration" suggests active
implementation of death by the "other." The main intention, however, is to distinguish this category from "se/^-administered" by emphasizing the involvement of others.
Indeed, the "other administered" category is subdivided into the "passive" and "active" ways in which others may be involved.
189 Keeping this terminological clarification in mind, the least and most problematic activities are found, respectively, in the top left and bottom right cells of the table. At the top left, we find simple, direct "suicide," in which an individual, acting entirely independently, takes his or her own life. This is not (or is no longer) illegal and falls outside the scope of our investigation. At the bottom right, we find "mercy killing" of the kind famously (or infamously) undertaken in Canada by Robert Latimer, a non-physician, when he put an end to the life of his severely disabled daughter, Tracy, without any explicit indication of consent on her part.453 Such mercy killing by non-physicians, while certainly controversial, falls outside the scope of legislation permitting or regulating euthanasia and thus, like suicide, lies beyond our investigation. Generally speaking, euthanasia laws and regulations concern the actions only of physicians and this study follows the same limitation. It thus includes mercy killing by physicians, as part of the discussion.
A physician's mercy killing of a patient who has not explicitly consented is clearly a form of what is usually called "active" euthanasia. The "passive" counterpart in cases of involuntary euthanasia occurs when physicians fail to treat or resuscitate a patient who has not consented to such actions and who may even have expressed the desire to live ("merciful inaction" in the table). Merciful inaction seems less problematic or controversial than active mercy killing but is certainly more controversial than not treating or resuscitating on the explicit instructions of the patient (what the table calls
"instructed inaction").
453 CBC News, "Compassionate Homicide: The Law and Robert Latimer," (2008), http://www.cbc.ca/news/background/latimer/.
190 The active counterpart of instructed inaction is "direct PAS," in which the
physician ends life - e.g., by injecting lethal drugs - on the patient's explicit instruction.
Like merciful inaction, direct PAS obviously falls between mercy killing and instructed
inaction on the scale of controversy. Where these two intermediate categories fit in
relation to each other is less clear.
It is similarly unclear where "indirect PAS" fits on the scale of controversy. Here
the individual self-administers a lethal drug but is assisted by a physician in acquiring that drug. One would plausibly expect this to be less controversial than either mercy
killing or direct PAS, and more controversial than instructed inaction, though, as we shall
see below, at least one jurisdiction (Belgium) reverses this common intuition by
legalizing direct PAS and prohibiting indirect PAS. Moreover, even if one considers
indirect PAS to be the less problematic form of assisted suicide, its placement with respect to merciful inaction is not perfectly obvious.
Given this context, how do we identify the poles and the middle ground of the policy continuum? The "conservative" end of the continuum, clearly, is maintaining the
widespread tradition of banning physician-administered or -assisted death, including both
indirect and direct PAS, but not including instructed inaction, which is generally legal.
Part of the rationale stems from the slippery slope argument. Just as critics of civil unions
see them as paving the way to full same-sex marriage, so some conservative participants
in the euthanasia debates maintain that once the doors are opened to indirect voluntary
euthanasia, there will be no way to stop involuntary euthanasia (or mercy killing.) J. Gay-
Williams, for example, argues:
191 A person apparently hopelessly ill may be allowed to take his own life. Then he may be permitted deputize others to do it for him should he no longer be able to act... It is only a short step, then, from voluntary euthanasia to [involuntary] euthanasia.454
Margaret Somerville, who is well known for her opposition to assisted suicide and
euthanasia, suggests that such a slippery slope is encouraged by the way that the
euthanasia debate focuses the discussion on death rather than life. She maintains that in a
"pluralistic society, medicine and law are the principal institutions that maintain the value of respect for human life in society as a whole. Changing the law to allow physicians to carry out euthanasia - making an exception to the norm that we must not kill each other - would seriously damage these institutions' capacity to carry that value."455
What about the "liberal" end of the policy continuum? In theory, it might be the
legalization of mercy killing by physicians, but this seems improbable in the current
context. It is possible, of course, for court decisions to propel the policy process down
such a path, thereby moving the goalposts, but that has not yet happened either. Indeed, we shall see that courts have been relatively reluctant to push the envelope on the
euthanasia issue to the extent they have on either prisoner voting rights or same-sex marriage. In practice, the contemporary public policy debate is focused mainly on the voluntary euthanasia represented in the top row of Table 1, that is, on whether physicians may assist patients who desire to end their lives. Among other things, this option fits the libertarian paradigm more squarely than the mercy killing of someone without their
Quoted in: J. M. Dieterle, "Physician Assisted Suicide: A New Look at the Arguments," Bioethics 21, no. 3 (2007): 129. 455 M. Somerville, "Why Euthanasia Is Bad for Doctors," in The Mark (2009). More generally see: , Death Talk: The Case against Euthanasia and Physician-Assisted Suicide (Montreal and Kingston: McGill- Queens Press, 2001).
192 consent. Thus, the liberal end of the currently practical continuum is to permit direct PAS
simply at the request of a patient, based on an unconstrained libertarian freedom to choose not only how to live, but how and when to stop living. In Sue Rodriguez's terms,
she owns her life and therefore has the sole and unfettered authority to dispose of it, and to recruit willing physicians to help her.
The moderate middle is occupied by policies that permit PAS, usually only in its indirect form, and (whether indirect or direct) only in carefully circumscribed circumstances. The constraining circumstances in these middle ground approaches to voluntary euthanasia typically include the presence of terminal illness (perhaps with only a short time left to live) and severe pain. In other words, simple unhappiness or depression is not enough. They often also require that the person requesting assisted suicide be of sound mind. A series of requests, third-party oversight, and the like are among the procedural safeguards frequently included. Torsten Nielsen, for example, suggests a panel of nine doctors, psychologists and ethicists who would consider patient requests for physician assisted suicide. In his scheme a procedure would only be granted if a two-thirds majority of the committee approved the application.456
Moderate Middle in Comparative Context
As in the case of prisoner voting rights and same-sex marriage, the full range of positions on the policy continuum can be found in existing policy arrangements, and/or judicial opinion, and/or public opinion. That said, the issue of assisted suicide often
Somerville, Death Talk: The Case against Euthanasia and Physician-Assisted Suicide, 150.
193 stands in marked contrast to the other two issues, and the differences are as interesting
and revealing as the similarities.
Of particular note, the conservative pole of the policy spectrum remains much
more thoroughly established in the liberal democratic world than is true with respect to
either of the other two issues. In the case of prisoner voting, we saw some remaining
support for blanket disqualifications, but not much at the policy level and none at the judicial level. Most liberal democratic regimes have moved at least into the middle
ground on the issue or prisoner voting rights, disqualifying only those convicted of more
serious offenses, usually as determined by the length of incarceration. Indeed, many jurisdictions had moved all the way to the liberal pole of complete enfranchisement of all
prisoners (though others strongly resist this shift). Something similar is evident in the
case of same-sex relations, where domestic-partnership or civil union arrangements have
become common and some jurisdictions have opted for full same-sex marriage. By
contrast, euthanasia, including both direct and indirect PAS, remains illegal in most jurisdictions, with only three countries (the Netherlands, Belgium, and Switzerland) and
three U.S. states (Oregon, Washington, and Montana) having legalized PAS in some
form. Germany illustrates the more common conservative norm. Section 216 of the
German Criminal Code makes it an offence to kill even " by the express and earnest
request of the victim."457 Judicial opinion on assisted suicide seems similarly less liberal than it is on the other two issues. This difference between the assisted suicide and the
other two case-study issues is particularly remarkable given that public opinion on
457 Government of Germany, "German Criminal Code (as Amended on 4 July 2009)," (2009).
194 assisted suicide seems more strongly oriented to liberalization than it does with respect to either prisoner voting rights or same-sex marriage.
Comparative Public Policy
The broad persistence of laws banning euthanasia is by no means to suggest that the issue has been absent from the public agenda in liberal democratic regimes. To the contrary, many proposals - typically limited to the middle ground option of indirect PAS
- have been presented and legislatively considered. To date, however, such legislative initiatives have failed much more often than they have succeeded. There have been some successes, however. Indeed, among the few regimes with legalized PAS, some have gone to the more liberal end of legalizing direct PAS. As with the other two case studies, the full panoply of positions can be found in comparative public policy, but the distribution of policies across the continuum is more heavily tilted toward the conservative side.
Not only have the widespread public debates about euthanasia failed to persuade many jurisdictions to adopt more liberal policies, they have led some of them to explicitly reaffirm the conservative tradition through new legislation, just as we saw the enactment of Defence of Marriage (DOMA) legislation in response to debates about same-sex marriage. For example, since 1994 seven US states- Iowa, Louisiana, Maryland,
Michigan, Rhode Island, South Carolina and Virginia - have adopted laws that prohibit
195 both direct and indirect assisted suicide. Clearly the conservative position in such jurisdictions cannot be seen as an unreflective holdover from the past.
The same can be said of jurisdictions that may not have enacted new bans, but have rejected liberalizing legislative initiatives on the issue, even if those initiatives proposed only the middle ground option of indirect PAS. This occurred in New Zealand, which considered, but rejected, different versions of Death With Dignity legislation in
1995 and 2003. The 1995 version proposed only indirect PAS, under which a physician could prescribe, but not directly administer, deadly medication. The 2003 version of the legislation was more ambitious. In permitting the physician to directly administer the lethal medication (direct PAS), this bill would have moved New Zealand closer to the liberal pole of continuum. The bill required that the patient make a request in writing, which had to be verified by two witnesses. At that point, the attending physician was required to request a consultation with a second doctor for confirmation of the diagnosis and set up a meeting with a psychologist for assessment. Once those appointments were complete, a mandatory 48-hour minimum cooling off period was required before the procedure could take place. At any time the patient could withdraw their request.
Interestingly, the 2003 version of the Death with Dignity Act was killed in part by the 1993 Bill of Rights Act (BORA). Recall that the Attorney General examines all legislation for potential incompatibilities with BORA before legislation is passed. In the case of prisoner voting rights, we saw that this process contributed to New Zealand's move away from blanket disqualification to the middle ground length-of-sentence based
458 International Task Force, "Failed Attempts to Legalize Euthanasia/Assited Suicide in the United States " (2007), www.dredf.org/assisted_suicide/Failed_attempts.pdf.
196 disqualification. On the issue of physician assisted suicide, BORA has had the opposite effect of helping to maintain the conservative tradition. Attorney General Margaret
Wilson found the Death with Dignity Act violated sections of BORA, particularly s.8, the
"right to life." This violation could not be saved as "reasonable" under a proportionality test similar to the Oakes Test in Canada. The Bill was defeated 60-57.459
The fact that a BORA right - the right to life - was used against liberalization of euthanasia policy is worth underlining. The point here is that a right widely considered to be central, one that is included in all bills of rights and features centrally in "rights talk" even in the absence of such bills, could be invoked by the conservative tradition. True, this right co-exists with other centrally featured rights - e.g., the right to "liberty" or to
"dignity" - and the winner in this "clash of rights" is not pre-determined. Still, there is something to be said for being able to invoke at least one of two (or more) contending rights. This strategy is not available to conservatives on the issue of prisoner voting rights, where the only relevant right (the right to vote) clearly weighs against the conservative tradition, which must thus be defended as a "reasonable limit" on an otherwise central right. The same is true of the same-sex marriage debate, where the rights most easily invoked are equality or non-discrimination rights. Here again, the conservative tradition must typically defend itself in terms of reasonable limits on rights.
We have seen that "reasonable limits" arguments have some power and persuade many, including many judges. Still, they suffer an obvious disadvantage in an era of rights talk, perhaps especially in the courtroom, or in analogous legal exercises. Although
459 Dignity New Zealand, "Dignity New Zealand Trust," http://www.dignitynz.co.nz/index.php?option=com_content«&task=view&id=43&Itemid=59.
197 New Zealand's BORA is clearly a "weak-form" bill of rights from the perspective of judicial power, the Attorney-General's function under BORA can be considered quasi- judicial. Whether the rights consideration is judicial or quasi-judicial, the ability to
invoke a clearly protected right enjoys an inherent advantage over justifications for
limiting that right.
The outcome of the euthanasia debate in New Zealand is a common one. The
United Kingdom has seen similarly unsuccessful attempts to introduce assisted suicide
legislation. In March 2004, Lord Joffe introduced the Assisted Dying for the Terminally
III Bill [HL]. The Bill would permit "a competent and terminally ill person" to request
indirect PAS, that is, to request a prescription of drugs for self-administration.460 A
number of procedural safeguards were present: a signed, written request by the patient for
the procedure; the presentation by the doctor of alternatives to assisted suicide; and a
consultation with a second doctor who was a specialist in palliative care. If either doctor
had the opinion that the patient lacked the capacity, an independent psychiatrist was
consulted. If the qualifying conditions were met, a patient must sign a declaration
indicating they wanted to end their life, witnessed by two people, one of whom had to be
a solicitor. Either the attending or consulting physician must provide the lethal cocktail
of drugs. The procedure could not take place earlier than 14 days after the initial request.
The Bill was given second reading, at which time it was referred to the [Lords]
Select Committee on Assisted Dying for Terminally III. The Select Committee made a
The bill made a provision that allowed "patients who were physically unable" to ingest the medicine to have the doctor provide the medication via a feeding tube.
198 number of recommendations based on "key issues" they thought should be taken in to account. Among the recommendations, the Committee suggested both a mandatory psychological evaluation and a mandatory waiting period. Only the latter was incorporated.
The Assisted Dying for the Terminally III Bill [HL] died with an election call in
2005, and was reintroduced in early 2006. It received second reading on May 12.
During debate, Lord Joffe argued the bill would be good "for the society as a whole," and
"we must find a solution to the unbearable suffering of patients whose needs cannot be met by palliative care."461 Critic Lord Carlile maintained, "that [the bill will] lead to voluntary (direct) euthanasia."462 The critics won, and the Bill was rejected in the House of Lords 148-100.
In the United States significant debates on euthanasia have occurred in several states. With three exceptions (to be discussed below) these have also been unsuccessful.
As noted above, seven states have adopted new bans on both indirect and direct PAS. In other states, attempts to introduce indirect PAS have failed, sometime more than once. In
Vermont, for example, a bill permitting indirect PAS has been introduced and defeated three times in the state legislature. Similarly, the Hawaii state legislature has considered, and rejected, the issue of indirect PAS a number of times, most recently in 2005.
Also in 2005, a California State legislative committee approved the California
Compassionate Choices Act, which was again a proposed legalization of only indirect
PAS. The California Senate Judiciary Committee defeated the Act in 2006. At the time
461 BBC News, "Lords Block Assisted Dying Bill," (2006), http://news.bbc.co.Uk/2/hi/health/4763067.stm. 462 Ibid.
199 of writing three other states, Pennsylvania, Rhode Island, and Wisconsin, are debating laws which permit indirect PAS.463
U.S. legislators are not the only ones who have been asked to examine the question of euthanasia. Voters, too, in the form of initiated ballot propositions have been asked to vote on the issue.464 For example, in 1998, voters in Michigan were asked to vote on ballot Proposal B: Terminally III Patient's Right to End Unbearable Pain and
Suffering. The proposition would have made it legal for a doctor to prescribe a lethal dose of painkillers to end a patient's life. The proposition failed 71 to 29 per cent.465
Similarly, voters in Maine were asked to vote, and rejected, a ballot proposition supporting indirect PAS in 2000. The Maine Death With Dignity Act, or Ballot
Proposition 1, however, suffered defeat by a much narrower margin (51 to 49 per cent) than the Michigan proposal.
Not all American reform efforts have failed, however. In 1994, Oregon voters, passed initiated ballot Measure 16: The Death with Dignity Act. The Measure allows terminally ill residents of Oregon, with less than six months to live, to obtain prescription medication for the purpose of committing suicide. In other words, it permits indirect
PAS. A number of conditions apply, including two oral requests for the medication, a
Marlisa Tiedemann, and Dominique Valiquet, "Euthanasia and Assisted Suicide: International Experiences," ed. Parliamentary Information and Research Services (Ottawa: Library of Parliament, 2008), 5-6. 464 An initiated ballot proposition occurs when a petition is signed by a certain number of registered voters can bring about a public vote during an election on a proposed statute or constitutional amendment. 465 International Task Force, "Assited Suicide Rejected by Michigan Voters," (1998), http ://www. internationaltaskforce .org/m ichv.htm.
200 second consulting medical opinion and a waiting time of more than 15 days before the doctor would prescribe the medication.466
Washington State similarly used an initiated ballot proposition to legalize indirect
PAS in 2008. Washington Initiative 1000 was designed to "allow terminally ill, competent, adult residents of the state to request and self-administer lethal medication prescribed by a physician." The person requesting the treatment "must be medically predicted to have six months or less to live."467 The proposition passed 59 per cent to 41 per cent.
A third state, Montana, also has a law legalizing indirect assisted suicide, but it arrived at that destination by a different route. Montana was taken in this direction by litigation, in which the state Supreme Court found that the existing legal protection of
"merciful inaction"468 - that is, letting nature take its course at the patient's instruction- was best interpreted as also covering indirect PAS, thus allowing physicians to prescribe lethal medication to be self-administered by the patient.469 As we shall see in the section on judicial opinion below, constitutional issues arose in this litigation, but the majority of the Montana Supreme Court preferred to proceed by way of ordinary statutory interpretation. This is the kind of interpretive approach that, as I noted in the previous chapter, Australian Prime Minister Howard was concerned to prevent in the case of same- sex relationship policy when he legislated the hitherto common law traditional definition
Tiedemann, "Euthanasia and Assisted Suicide: International Experiences," 3. 467 CNN News, "Us Election2008: Ballot Measures." 468 This protection was found in the Montana Rights of the Terminally III Act. 469 Associated Press, "Monana Judge Endorses Right to Assisted Suicide," New York Times, http://www.nytimes.com/2008/12/07/health/07montana.html.
201 of marriage. In the case of Montana's merciful inaction legislation, of course, broadening
it through interpretation left the door open to the state to legislatively overrule the Court
by re-enacting the legislation to clearly prohibit indirect PAS. Had it done so, any
subsequent legal challenges would have had to rely on constitutional issues. Instead of
enacting new, more restrictive legislation, however, Montana has to date chosen to live
with its Supreme Court's statutory interpretation. For reasons John Howard probably
understood, it is more difficult to take away rights once courts provide them than it is to
legislatively confirm an existing legal status quo in a manner to pre-empt interpretive
liberalization.470
The kind of indirect PAS permitted in Oregon, Washington, and Montana was
also legalized by Luxembourg in April 2009. The law allows doctors to prescribe a lethal
dose of medication to people suffering from "a grave and incurable condition." Like
other countries discussed, the Luxembourg law has a number of procedural safeguards, which need to be met. Among them, a patient must make "multiple" requests for the procedure, and the consent of the attending doctor and a consulting physician is required.
Within eight days of the procedure the doctor must file a questionnaire with a national committee who will verify if the procedures were correctly met.
Switzerland also has legislation permitting indirect PAS, but it differs in
interesting ways from the examples of such laws outlined above. Swiss Penal Code
470 Thomas Flanagan, "The Staying Power of the Legislative Status Quo: Collective Choice in Canada's Parliament after Morgentaler," Canadian Journal of Political Science /Revue canadienne de science politique 30, no. 1 (1997), Tom Flanagan, "Canada's Three Constitutions: Protecting, Overturning, and Reversing the Status Quo," in Myth of the Sacred: Charter, the Courts, and the Politics of the Constitution in Canada, ed. Patrick James, Donald E. Abelson, and Michael Lusztig (Montreal and Kingston: McGill- Queens University Press, 2002).
202 Section 115 states: "Whoever incites another person to commit suicide or helps him or her to do so from motives of self interest, will be liable to a maximum of 5 years imprisonment if the suicide is carried out or attempted" (emphasis added). In practise, this means that if there is no self-interest (for example, monetary gain) on the part of the assistant, there is no penalty for indirect assisted suicide. However, Section 114 of the
Swiss Penal Code states that if a person who is aiding in the suicide carries out the action that results in death, then the act is no longer assisted suicide. In those cases, it is direct active euthanasia, which is a crime. Put another way, the critical last step must be taken by the individual wanting to die and witnessed by a third party. Unlike the jurisdictions discussed above, there is no legislated requirement to restrict assistance in suicide to situations of significant medical distress, such as terminal illness and severe suffering.
Administrative tribunals have stipulated, however, that "a medical indication in the sense of a terminal illness with an inevitable progression to death" should be minimally present.
Another intriguing difference between Switzerland's law and the others we have considered is that Switzerland does not specify that assisted suicides require a doctor to be present. This has given rise to voluntary organizations, which aid in assisted suicide by providing facilities and lethal doses of medication for the suicide. There are three main organizations: EXIT Deutsche Schweiz (German Switzerland) who deal with the German and Italian regions; EXIT A.D.M.D: Association Pour Le Droit De Mourir Dans La
Dignite (Association for the Right to Die in Dignity) who deal with French speaking areas; and DIGNITAS who provides assistance to foreign nationals. These organizations are the primary facilitators of assisted suicides in Switzerland. This has given rise to
203 some concerns about "death tourism." At the time of writing the Swiss Government has not acted.
To date, only two jurisdictions, the Netherlands and Belgium have legalized direct
PAS, thus positioning themselves at the liberal end of the policy continuum. In August
of 1999, the Dutch Ministers of Health and Justice tabled legislation which legalized
direct physician assisted suicide. The Bill passed the lower house in November of 2000
104-50, and the Senate in April of 2001, 46-28. The Act came into effect on April 1,
2002. One of the most controversial aspects of the Dutch law is the provision allowing children as young as 12 to request physician-assisted suicide.471
The Dutch law set out several criteria for a patient to terminate his or her life: there must be a voluntary and well considered request to die; the suffering must be
"perpetual, unbearable and hopeless"; there must be a consideration of treatment alternatives; the doctor and the patient must be convinced there is no compelling alternative; the doctor must consult another doctor who must visit the patient and provide written opinions that the above conditions are true.
Once the patient has died, the doctor must report the assisted death to the coroner and submit a report. Both the doctor's report and the coroner's report are submitted to the public prosecutor and the civil registrar. Finally all reports are submitted to one of five regional assessment committees who ensure the conditions outlined above were met before the procedure took place. If it is found that the procedures were violated, a doctor may be brought before a disciplinary tribunal.
471 Natasha Cica, "Euthanasia - the Australian Law in an International Context: Part 2: Active Voluntary Euthanasia," ed. Library of Parliament (Canberra: 1997).
204 In May 2002, Belgium legalized direct PAS, which is defined as "an act of a third party that intentionally ends the life of another person at that person's request."472
Interestingly, indirect assisted suicide remains illegal, meaning that the patient who wishes to die cannot administer the lethal injection to himself or herself; a doctor must perform the procedure. Belgium clearly has joined the Netherlands at the more liberal end of the policy continuum.
Like the other legislative acts examined above, the Belgian law outlines a number of criteria that must be met before the procedure can take place. The written request for direct PAS must be "voluntary, well-considered and repeated;" the patient must be in a
"futile medical condition of constant and unbearable physical or mental suffering that cannot be alleviated". The doctor must obtain a second medical opinion, and the doctor
"must allow at least a month between the patient's written request and the act."
Similar to the Netherlands legislation, once the act has taken place, the doctor must report the direct PAS to the authorities. The Federal Control and Evaluation
Commission decides whether the conditions laid out above were met. If the conditions were met, the case is closed, if not, the case is referred to a prosecutor for criminal proceedings (e.g. "mercy killing" or involuntary euthanasia remains a crime).473
Overall, a review of comparative policy on assisted suicide shows that the issue is under widespread debate and legislative consideration but that the distribution of policies across the continuum remains strongly tilted in the conservative direction. To date, only
472 Walter De Bondt, and Thierry Vansweevelt, "Euthansia in Belgium," in Euthanasia in International and Comparative Perspective ed. Marc Groenhuijsen, and Floris van Laanen (Nijmegen, Netherlands: Wolf Legal Publishers, 2006).
205 two jurisdictions - the Netherlands and Belgium - have positioned themselves near the
liberal end of the continuum by legalizing direct PAS, and even they stop short of a
completely libertarian position in which the individual's choice to die with assistance is
an entirely unconstrained choice. Indeed many constraints apply (though there is debate
about how effective they are).47
Much more common than the Dutch or Belgian models are proposals situated
more squarely in the middle ground of indirect assisted suicide (i.e, self-administration of
the lethal medication), constrained by requirements such as repeated requests, the
requirement of a second doctor consultation, a mandatory waiting period, and the self-
administration of the lethal cocktail. In most cases, even these middle ground positions
have failed, though they have been implemented in a handful of jurisdictions:
Luxembourg, Oregon, Washington State, and Montana. In short, while the middle ground
can certainly be found in comparative public policy, it remains much rarer than the
analogous middle ground positions on either prisoner voting rights or same-sex relations.
Moreover, the challenges to middle ground policies on assisted suicide have thus
far come more often and more effectively from the conservative pole of the continuum
than from the liberal end. Again, this stands in obvious contrast to the issues of prisoner
voting rights and same-sex relations, where the conservative tradition has clearly declined
and middle ground positions have more often and more successfully been challenged
from the liberal end of the policy continuum. As previous chapters showed, liberalizing
shifts on prisoner voting rights and same-sex relations were often judicially prompted.
474 C. Cartwright et al., "Physician Discussions with Terminally 111 Patients: A Cross-National Comparison," Palliative Medicine 21, no. 4 (2007).
206 Indeed, judges were sometimes primarily responsible for implementing the liberal end of
the policy continuum (though middle ground positions retained significant judicial
support). How does this compare to the distribution of judicial opinion on assisted
suicide?
Judicial Opinion
The first point to make in comparing judicial opinion across the three case-study
issues is that the same conservative tilt on assisted suicide that characterizes legislative
comparisons shows up injudicial opinion on the issue. I have already noted the strong
support provided for the traditional conservative pole of the policy opinion by the quasi- judicial BORA-based ruling of the New Zealand Attorney-General. Fully judicial rulings
elsewhere have not been quite as conservative as New Zealand's BORA decision, but
neither have they often ventured very far in a liberalizing direction. Overall, judges have
been more cautious on the issue of assisted suicide than on the other two issues, rarely
moving the law even into the middle ground, and never to the liberal pole.
This caution has certainly been evident in the jurisprudence of the European
Court. An early appeal to that court came from Ramon Sampedro, a quadriplegic who
was paralysed when he dove into the sea near his village in the Spanish Region of
Galicia. Sampedro misjudged the water's depth and struck his head on the bottom. His
"brain worked better than most people's and his wit was as quick as his smile was warm,
but from the neck down he was limp flesh, capable of no more than involuntary spasms."
He petitioned the Spanish Courts and the European Court of Human Rights for a
207 declaration that those who aided in his suicide would be free from criminal prosecution.
The Spanish Court denied the request to avoid prosecution and the European Court declined even to hear the case.
The European Court of Human Rights did hear a case regarding assisted suicide in 2002. In Pretty v. the United Kingdom, a 43-year old woman petitioned the court not to have her husband prosecuted under British law for aiding in her planned suicide. Mrs.
Pretty suffered from motor neurone disease, which is a progressive neuro-degenerative disease of motor cells in the central nervous system. By the time she petitioned the
Court, she was essentially paralysed from the neck down.
Section 2 of the European Convention on Human Rights states that "Everyone's right to life shall be protected by law."476 Pretty claimed that the right to life entails the right to "choose whether or not to live and the right to self-determination in relation to issues of life and death."477 Moreover, because "the right to die is not the antithesis of the right to life but the corollary of it... the State has a positive obligation to protect both." It followed that legal restrictions on the "right to die," such as Britain's prohibition of assisted suicide, contravened the European Convention of Human Rights, and that states might actually need to enact "right to die" legislation.
As it did in the same-sex marriage ruling discussed in the previous chapter, a unanimous European Court rejected these claims. "No right to die," said the Court,
475 Rod Usher, "Live and Let Die," Time.com 151, no. 4 (1998), http://www.time.com/time/magazine/1998/int/980126/file.live_and_let_die.shll.html. 476 Article 2 reads: Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 477 Pretty v The United Kingdom, 4th ECHR (2002).
208 "whether at the hands of a third person or with the assistance of a public authority, can be
derived from Article 2," which clearly implied a duty of the state to protect life.478 In the
Court's view, "Article 2 cannot, without a distortion of language, be interpreted as
conferring the diametrically opposite right, namely a right to die; nor can it create a right
to self-determination in the sense of conferring on an individual the entitlement to choose
death rather than life." As in the New Zealand Attorney-General's BORA-based decision
above, a clearly protected "right to life" weighed strongly against the desire to legalize
assisted suicide.
In another respect, however, the European Court's decision is significantly
different from the New Zealand decision. In New Zealand, BORA was read to prevent a
legislative proposal to legalize assisted suicide. The European Court, by contrast, simply
refused to require the legalization of assisted suicide at the wish of a single litigant. It did
not preclude considered legislation to permit what Pretty was requesting.479 If Pretty, or her supporters, managed to persuade the British Parliament to pass legislation legalizing
and regulating assisted suicide, the European Court and Section 2 of the European
Convention would not automatically stand in the way, as the New Zealand Attorney
General and BORA had done. That is, the Justices were as unwilling to say that the right to life provisions in the European Convention prohibited right to die legislation as they were to say that it required "right to die" legislation.
Again, this has interesting parallels with the European same-sex marriage case in the last chapter. Just as the Court was unwilling to say that the European Convention
478 Ibid, at para. 39. 479 Ibid, at para. 41.
209 required a right to same-sex marriage, it was unwilling to mandate a right to die.
However, in both cases, the Court was careful to note there was nothing in the
Convention (on its face) that prohibited more liberal legislation.
Moreover, the ruling in the Pretty case is interesting from a right to life
perspective. Unlike the opinion of the Attorney General in New Zealand who used the
BORA "right to life" against the liberalization of PAS laws, the Pretty ruling used right to
life provisions to remain neutral. The Justices in the Pretty case were reluctant to rule on
the legality or requirement of PAS until permissive legislation is passed. As we will see
below, however, American courts are more willing to engage the legality of the middle
ground position.
Turning to the United States, a number of legal challenges arose from the
Oregon's Death With Dignity Act. In August of 1995, a District Court judge declared the
law's permission for indirect PAS to be unconstitutional on the grounds that it violated
the equal protection clause of the federal constitution.480 The Court came to this
conclusion because the Death With Dignity Act provided "insufficient safeguards to
prevent against an incompetent (i.e., depressed) terminally-ill adult from committing
suicide, thereby irrationally depriving terminally-ill adults of safeguards against suicide
provided to adults who are not terminally ill."481 Like the New Zealand BORA ruling, this
was a conservative judgment, using constitutional rights to resist or reverse liberalizing
reform, though it was not as thoroughly conservative. The BORA ruling was a strong
480 Lee v Oregon, 891 F. Supp. 1429 (1995). 481 Robin Lunge, Maria Royle, and Michael Slater, "Oregon's Death with Dignity Law and Euthanasia in the Netherlands: Factual Disputes," (2004), http://www.leg.state.vt.us/reports/04death/death_with_dignity_report.htm#_ftn25.
210 barrier to PAS altogether, whereas this Oregon ruling implied that a statute with better
safeguards might pass constitutional muster.
In the event, this conservative ruling did not survive appeal to the Ninth Circuit.
Significantly, however, the appeal judges chose not to reverse the constitutional ruling
and provide a more liberal reading of constitutional rights. Instead they chose to sidestep
the constitutional issue altogether on a technicality, ruling that the plaintiffs in the case
had no legal standing to challenge the measure. In other words, even the appellate
reversal of a conservative ruling was highly cautious and restrained; it did not even
constitutionally endorse the existing indirect PAS legislation. As a result of the court
action, the Oregon legislature decided to send the Act back to the people and in
November of 1997, the act was endorsed by the people by a 60 per cent majority.482
In that same year, two separate cases arrived at the United States Supreme Court.
Physicians in Washington and New York filed suits challenging the constitutionality of
state laws making it a felony to aid in suicide. The New York litigants based their
argument on rights won in Curzan v. Director of Missouri Department of Health (1990).
Curzan held a patient may refuse, or stop, medical treatment that is intrusive, even if it
hastens death. The New York suit argued that since there was no "essential legal
difference" between ending a life by terminating medical treatment and a doctor
administering life-ending drugs, the law was an "arbitrary" and "irrational" violation of the 14th Amendment's Equal Protection Clause, which requires governments to provide
equal treatment to all equally situated people. The Washington suit emphasized different
482 State of Oregon Department of Human Services, "Death with Dignity Act," http://www.oregon.gov/DHS/ph/pas/index.shtml.
211 constitutional provisions, arguing a ban on assisted suicide violated the "fundamental
liberty interest" protected by the Due Process Clause of the 14th Amendment. Lower
courts in both cases accepted these liberalizing arguments and overturned the legal prohibitions of assisted suicide in both states. These decisions were appealed to, and
overruled by, the Supreme Court of the United States.
In June 1997, in Washington v. Glucksburg and Vacco v, Quill (delivered together) the United States Supreme Court found there was no constitutional right to
assisted suicide.483 In 9-0 rulings Chief Justice Rehnquist rejected the lower court
arguments in both cases. The Chief Justice maintained that ending life by refusing treatment was not the same as ending life by assisted suicide, and thus allowing one and banning the other was neither arbitrary nor irrational, and did not violate the equal protection clause of 14th Amendment:
the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational.484
Nor did the prohibition of assisted suicide infringe a "right to die" protected by the Due Process clause. That clause protected only such substantive rights as are
"objectively, [and] deeply rooted in this Nation's history and tradition," a characterization that did not apply to the alleged "right to die."485 True, the due process clause had come to protect "personal autonomy" interests, such as the autonomy granted
483 Vacco v Quill, 521 U.S. 793 (1997), Washington V. Glucksberg, 521 U.S. 702 (1997). 484 Vacco v Quill, at para 8. Washington v Glucksberg, at para 3.
212 in Roe v. Wade, but these did not extend to assisted suicide. Indeed, the ban on assisted
suicide was justified by interests such as protecting the vulnerable, and reaffirming the
value of life.
Although the U.S. Supreme Court found that the constitutionpermitted the legal prohibition of assisted suicide, however, it did not find that the constitution required such
a ban. This was especially underlined by the concurring opinions of Justice O'Connor
and Stevens. While O'Connor agreed that there is no "generalized right to suicide," she was quick to note that "there is no reason to think the democratic process will not strike the proper balance" between those wishing to end their lives and protecting those who may feel pressured to do so.486 Justice Stevens similarly argued "there is room for further debate about the limits that the Constitution places on the power of the State to punish
[assisted suicide]."487 Even the Chief Justice's rulings made it clear that further debate was possible on the issue. In this respect, this ruling by the U.S. Supreme Court, while leaning in a conservative direction, is more like the restrained judgment of the European
Court than the New Zealand BORA ruling. The BORA ruling prevented PAS legislation.
Both the European and US high court rulings left the matter of some liberalization open to legislative discretion.
Right to die litigation in the U.S. remained relatively quiet in the aftermath of the
Glucksburg and Vacco rulings. Indeed, even the opposition to Oregon's Death with
Dignity Act died down until John Ashcroft was appointed Federal Attorney General in
2000. In November 2001, Ashcroft issued an interpretive rule suggesting that assisted
486 Vacco v Quill, at para 19. 487 Ibid, atpara.23.
213 suicide was not a "legitimate medical purpose," and that those physicians who engaged in such activity were in violation of the Federal Controlled Substances Act.m The interpretive rule was challenged in federal court, and in January 2006, the United States
Supreme Court (Gonzalez v. Oregon) in a 6-3 ruling upheld the decision of the Ninth
Circuit, ruling the Interpretive Rule was invalid since it went beyond the scope of the
Attorney General's authority under the Controlled Substances Act.m This ruling derailed a conservative attempt by the federal government to interfere in the Oregon legislation, and in this respect had a liberal effect. It did not, however, directly endorse the constitutionality of the Oregon law.
The Montana litigation mentioned above stands out as one of the few judicial interventions to directly move the law on assisted suicide in a liberal direction. Even here, however, the majority of the state Supreme Court achieved this end through the relatively more cautious route of statutory interpretation rather than through constitutional avenues.
The majority relied on the fact that under the existing legal protection of merciful inaction, "terminally ill patients are entitled to autonomous, end-of-life decisions, even if those decisions involve direct acts by a physician" - e.g., the direct removal or turning off of life extending technology. In these cases of merciful inaction, the physician is insulated from criminal, civil, or professional liability and is, indeed, punished only for ignoring the request of the patient. The key to the Act, in this view, is the expressed
Tiedemann, "Euthanasia and Assisted Suicide: International Experiences," 4. Gonzales V. Oregon, 546 U.S. 243 (2006).
214 wishes and consent of the patient. Simply put, "failure to give effect to a terminally ill patient's life-ending declaration is a crime."490
For the majority - expressing a view akin to the one rejected earlier by the
Supreme Court - the same principle governs the situation of "a physician who aids a terminally ill patient in dying" by prescribing lethal medication. Such a physician "is not directly involved in the final decision or act. He or she only provides the means by which a terminally ill patient himself can give effect to his life-ending decision, or not, as the case may be."491 As worded, in short, the legislation covers both respecting the patient's desire to let nature take its course without heroic intervention and the patient's desire to help nature along by self-administering lethal medication.
Two of the judges involved in this litigation - the original trial judge and one of the Supreme Court judges - would have gone further and grounded a liberalization of the law on constitutional grounds. They may have been aided in doing so by the fact that
Montana's constitution contains no explicit right to life. Trial judge Dorothy McCarty ruled that the existing state law, which she read as excluding PAS, unconstitutionally restricts terminally ill patients' right to dignified deaths.492 She relied on the constitutional rights of individual privacy and human dignity (Sections 10 and 4). At the state Supreme Court, the concurring opinion of Justice James C. Nelson came to the same conclusion. Montana's constitution, he wrote, guarantees "the inviolable right to human
Baxter v State of Montana, MT 449, at 32 (2009). 'ibid, at 23. 2 Associated Press, "Monana Judge Endorses Right to Assisted Suicide."
215 dignity," and thus "it must be honoured when one's inevitable destiny is death from an incurable illness."493
Two dissenters on the Supreme Court, Justices Rice and Hegel, also rested their conclusion on constitutional grounds, invoking the same right to "dignity," but for opposite purposes. In their view, the "prohibition against homicide - intentionally causing the death of another - protects and preserves human life, [and] is the ultimate recognition of human dignity."494 They make a clear distinction between situations where there is an intent to kill with assisted suicide and those where a doctor does not intend to kill by following the patient's request for withdrawing palliative care. They suggest the critical difference is the mens rea (guilty mind) component of the act. If a patient dies from care given, the doctor lacks the "requisite mental state to be charged under homicide statues." However, the deliberate act of prescribing a lethal dose of medication, in their opinion, would make a doctor guilty of homicide.
In sum, comparative judicial opinion on assisted suicide exhibits the same pattern seen in our review of comparative legislation. That is, it reveals a strongly cautious and even conservative tilt on the issue, especially as compared to the issues of prisoner voting rights and same-sex marriage. On the latter two issues, some courts have, on constitutional grounds, required implementation of the liberal pole of the policy continuum. On assisted suicide even judgments moving the law into the middle ground are hard to find. The Montana Supreme Court provides an example, but it was based on statutory interpretation, not on constitutional rights. Constitutional arguments in favour of
493 Baxter v. State of Montana, at 94. 494 Ibid, at 96.
216 assisted suicide are certainly made, but they have thus far attracted little judicial support, certainly no more support than constitutional arguments in support of the conservative tradition of prohibiting PAS. However, while the latter argument succeeded in derailing liberalizing reforms in at least one instance (New Zealand), that result is also rare, and other attempts to judicially (or quasi-judicially) invalidate assisted suicide laws have failed (e.g., in Oregon). Overall, judges seem reluctant either to require or to prohibit the middle ground position of indirect PAS. This is tepid support for the middle ground - as compared to the judicial requirements to move away from the conservative pole into at least the middle ground on, say, prisoner voting rights - but it nonetheless amounts to a kind of support (or at least tolerance) of the middle ground. It certainly permits further legislative experimentation on the issue, and if public opinion is any guide, the future may bring new legislative initiatives.
Public Opinion
Strikingly, although the middle ground on assisted suicide receives weaker support in comparative policy and judicial opinion than is true of our other two issues, it receives stronger support in public opinion. Indeed, public opinion data for PAS suggests that public policy and judicial decisions are well behind what would be supported by the public.
Public support for physician-assisted suicide has gone up dramatically over time, regardless of how one asks the question. The wording of the question remains relevant,
217 however; while differences in wording do not affect the trend, they certainly affect the actual level of support.
One way of asking the question emphasizes the distress suffered by patients who might desire assisted suicide. Gallup, for example, began asking Americans such a question in 1947: "when a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient's life by some painless means if the patient and his family request it?" (emphasis added). In 1947 and again in 1950 only 1 in
3 Americans answered yes to this question. By 2010, fully 71 per cent of Americans gave an affirmative answer to the same question, with only 27 per cent opposed.495 Note, moreover, that while the question emphasizes the consent of the patient (or the family), it does not limit itself to "indirect" assistance. Allowing doctors "to end the patient's life by some painless means" clearly covers direct PAS. Indeed, it arguably connotes direct physician administration of lethal drugs more naturally than prescription of drugs for self- administration.
The British Social Attitudes Survey asked a question that even more pointedly emphasized patient distress. Whereas Gallup underlined simply a "disease that cannot be cured," the British survey asked about "apainful incurable disease" (emphasis added).
Perhaps not surprisingly, the question whether doctors, facing such "painful" circumstances, "should be allowed by law to end the patient's life if the patient requests it" elicited even greater affirmative support. As early as 1984, 75 percent of British
Joseph Carrol, "Public Divided over Moral Acceptance of Doctor-Assisted Suicide," Gallup News Service (2007), http://www.gallup.com/poll/27727/public-divided-over-moral-acceptability-doctorassisted- suicide.aspx. N=1003.
218 respondents were in favour, a figure not yet reached on the Gallup question in North
America. A decade later, in 1994, British support for assisted suicide in response to the same question had reached 82 per cent.496 Again, it bears noting that this is support for a doctor "end[ing] the patient's life," a wording that most naturally connotes direct PAS.
Perhaps the 80 percent level of support represents a kind of upper limit in Britain.
Thus, when a National Opinion Poll asked a question going beyond "painful disease" to situations in which a person is "suffering unbearably from a terminal illness,497 support for PAS came in at 81 percent.
The influence of such qualifiers as "incurable," "painful," and "unbearable" is underlined by the results on surveys without such qualifiers. Consider a 2010 Angus Reid survey asking Canadian respondents this question: "Generally speaking, do you support or oppose legalizing euthanasia in Canada?" Sixty-seven per cent of Canadian respondents indicated they were supportive.498 This is obviously lower than British answers to questions about "unbearable suffering." But could this difference perhaps be explained not by differently worded questions but by the comparatively greater conservatism of Canadians on this issue?
We know the answer is no because of how British respondents answered the same, more neutrally worded "euthanasia" question when Angus Reid posed it to them in
496 Julie Ray, "Assisted-Dying Debate in Us, Canada, Briton," Gallup News Service (2003), http://www.gallup.com/poll/9217/assisteddying-debate-us-canada-britain.aspx. 497 Select Committee on Assisted Dying for the Terminially 111 Bill, "Appendix 7: Public Opinion on the Leaglization of Euthanasia/Pas," (2004), 5. 498 Angus Reid Global Monitor., "Most Canadians Generally Agree with Euthanasia," Polls and Research (2010), http://www.angus-reid.com/polls/view/35073/most_canadians_generally_agree_with_euthanasia. N=1003.
219 2010. Seventy-one per cent of British respondents answered yes to this question, a slightly higher rate of support than Canadians had expressed five years earlier, but nevertheless a full 10 percentage points below earlier British support of PAS when "pain" or "unbearable suffering" were mentioned.4" The question obviously matters.
Even if the roughly 7-in-10 level of support for "legalizing euthanasia" exhibited in both Britain and Canada is lower than questions emphasizing "pain" or "unbearable suffering," it is nevertheless a remarkable level of support, about the same as the level of support elicited in 2010 in the U.S. by Gallup's "incurable disease" wording. In the same vein, it is worth noting that only 23 percent of Canadian respondents and 18 percent of
British respondents expressed opposition to "legalizing euthanasia" in 2005 and 2010, respectively. Should we assume that the significant majorities expressing support for
"legalizing euthanasia" were thinking only of prescriptions for self-administration by patients? The opposite assumption seems equally, if not more, plausible.
Turning to Australia, we similarly see substantial support for assisted suicide, although such support is not quite as high as in Britain and Canada when qualifiers emphasizing pain and suffering are part of the question. When Joanna Sikora and Frank
Lewins asked, "if someone is dying slowly and painfully and wants to end their life, is it right for a doctor to help them?" (emphasis added), their data indicate that between 1993 and 2002 support averaged 70 per cent in favour.500 This is not as high as the 80 percent support found on similar questions in Britain and Canada; it more closely approximates
499 Angus Reid Global Monitor, "Seven-in-Ten- Britons Want Legal Euthanasia," (2010), http://www.angus-reid.com/polls/view/34986/seven_in_ten_britons_want_legal_euthanasia. N=2004. 500 Joanna Sikora and Frank Lewins, "Attitudes Concerning Euthanasia: Australia at the Turn of the 21st Century," Health Sociological Review 17 no. 1 (April 2007): 72.
220 the British and Canadian results on more neutrally worded questions. Perhaps this indicates a slightly more "conservative" Australian political culture on this question. Still, this difference in just how substantial a majority supports assisted suicide does not change the fact that majority support is indeed substantial in both cases. As in the case of same-sex marriage, Canadian and Australian public opinion on assisted suicide are similar enough that differences in policy outcome are more likely to flow from institutional than from cultural differences.
Overall, both legislative and judicial action (or inaction) on the issue of assisted suicide is significantly out of step with public opinion in the countries I have surveyed, including Canada and Australia. On this issue, public opinion would support movement away from a conservative tradition that has remained widely entrenched in public policy.
It supports movement at least toward the moderate middle (indirect PAS) of the policy continuum, and perhaps beyond that to more liberal versions of direct PAS. With respect to our other two case-study issues, legislatures and/ or courts have more often moved into middle ground positions that also attract public support, and in some cases have moved to liberal destinations that public opinion would not support. That is certainly not (or not yet) the case with respect to assisted suicide, though the nature of public opinion suggests that the issue will not go away any time soon.
A striking indication of the difference across issues is how they have been affected by initiated ballot measures in the U.S. In the case of same sex relations, such measures have been invoked to harness popular resistance to legislative and/or judicial interventions on behalf of full same-sex marriage, and in some cases (e.g., California) to
221 preserve the middle ground against the unpopular liberal pole of the policy continuum.
With respect to assisted suicide, by contrast, initiated ballot measures have been used in
Oregon and Washington to escape the conservative pole and move into the middle ground.
At a minimum, one can safely say that the moderate middle on this, as on the other two case-study issues, enjoys a significant degree of public support. However, that support has thus far interacted differently with legislative and judicial institutions. How have those institutions, in their different constitutional structures, affected policy on assisted suicide in Australia and Canada? In particular, has the moderate middle fared differently in these two countries because of their different institutional structures?
Australia
Criminal law is a state responsibility in Australia. Although the criminal law no longer prohibits suicide or attempted suicide, assisting suicide is illegal in all Australian jurisdictions. In New South Wales, for example, it is an offence for a person to "incite, counsel, aid or abet" another person wanting to commit suicide.501 While the penalties for assisting suicide vary across jurisdictions, actual prosecutions are rare. Most often, prosecutions tend to target family or friends who conducted a "mercy killing." Indeed, no doctor has even been prosecuted for murder in Australia for performing assisted suicide.502
501 Cica, "Euthanasia - the Australian Law in an International Context: Part 2: Active Voluntary Euthanasia," 12.
222 The fact that physician-assisted suicide remains illegal in Australia does not mean that Australia has not participated in the international wave of debate on the issue. The instance that made international headlines was the debate over the Rights of the
Terminally III Act 1995 (NT) introduced in the Northern Territory Legislative Assembly on February 22nd, 1995. The Bill was introduced as a Private Member's Bill by (then)
Northern Territory Chief Minister Marshall Peron. During second reading, Mr. Peron observed:
This is not a political issue; it is a human rights issue. I began preparing this bill after searching thought about the rights of those who face a distressing, undignified and possibly painful death and the dilemma confronting them and their medical advisers on the question of whether or not to actively terminate life. Through the laws in place today, society has made an assessment for all of us that our quality of life, no matter how wretched, miserable or painful, is never so bad that any of us will be allowed to put an end to it. I am not prepared to allow society to make that decision for me or for those I love.503
The legislation set out a statutory regime where a doctor could perform physician- assisted suicide (both direct and indirect) without violating the criminal law. In permitting direct PAS, this bill would move the Northern Territory past the internationally more common middle ground of indirect PAS to the more liberal position represented by such jurisdiction as Belgium and Netherlands.
As in such relatively liberal jurisdictions, however, the NT legislation did not implement a libertarian extreme, in which the individual has unconstrained freedom to choose death over life. In the NT legislation, as in the Netherlands and elsewhere, the
Legislative Assembly of the Northern Territory, "Parliamentary Record of the Debates on the Rights of the Terminally 111 Amendments Act," (1996).
223 request of the patient for PAS could be carried out only if a number of constraining conditions were met. The conditions included:
• The patient is terminally ill • The patient is at least 18 years old • The terminal illness is causing "severe pain or suffering" • There are no palliative care options "reasonably available to the patient" • The doctor has informed the patient that the condition will not improve • A second independent doctor has confirmed the first doctor's opinion about the illness • A third independent doctor, who is a qualified psychiatrist confirms that the patient is not suffering from clinical depression. • The patient has signed a "certificate of request", and the signature is witnessed by, and signed in the presence of, the first doctor and by a second doctor who has discussed the case with the patient and the first doctor.
Also in the bill were a number of procedural safeguards including:
• The certificate of request must not have been signed before a 7 day cooling off period since the patient indicated to the (first) doctor that the patient wished to end his or her life • A second "cooling off period of 48 hours elapsed since the certificate was signed • The patient has never indicated that he or she has changed their mind.
Even if all of the conditions were met, the patient was able to rescind his or her request at any time. Moreover, the doctor was under no time obligation to accede to the patient's request, and the legislation specifically states that a doctor may "for any reason at any time" refuse to assist the patient.504
The same day as the Bill was introduced, a Select Committee on Euthanasia was established to enquire into the Bill and report back to the legislature. The Committee reported back on May 16th and recommended a number of procedural changes including
Northern Territory of Australia, "Rights of the Terminally 111 Act 1995," (1996).
224 defining "qualified psychiatrist" and a provision to ensure depression is not the primary reason in asking for the procedure. On May 25, 1995, the Legislative Assembly passed the legislation by a vote of 15-10. The Rights of the Terminally III Act 1995 (NT) was assented to on June 16th 1995.505
Opponents of the Act immediately called for it to be repealed. In March 1996,
Neil Bell introduced two separate bills. The first, the Respect for Human Life Bill, attempted to repeal the Rights of the Terminally III Act. The second, The Care of the
Dying Consultation Bill, attempted to institute a committee system, which would examine how to streamline palliative care techniques.506 All attempts were defeated.
In February 1996, additional amendments were made to the Rights of the
Terminally III Act. The amendments increased the number of doctors involved in the process of assessing the patient, making it clear that one must be a specialist in the patient's illness. Yet, attempts to include a July 1999 sunset clause on the Act did not pass. On June 29th, 1996, the amended legislation received Assent coming into effect on
July 1st, 1996.
Although it was suggested by some critics that the Rights of the Terminally III Act
1995 (NT) was too difficult to use, controversy erupted when a Darwin (NT) resident used the legislation in September of 1996. Indeed, four people successfully used the legislation to commit assisted suicide between September 1996 and March 1, 1997.507
Cica, "Euthanasia - the Australian Law in an International Context: Part 2: Active Voluntary Euthanasia," 18-19. 506 Ibid. 507 Parliament of Victoria, "Current Issues Brief No 2: Medical Treatment (Physician Assisted Dying) Bill 2008," ed. Research Service Parliamentary Library (2008), 26.
225 In the wake of the unsuccessful attempts to repeal the legislation, a private lawsuit was launched against the Northern Territory and the Administrator of the Territory. The
President of the Northern Territory Branch of the Australian Medical Association, Dr.
Chris Wake, and Aboriginal leader Reverend Dr. Djiniyini Gondarra, both opponents of the right to die, challenged the validity of the law in the Northern Territory Supreme
Court. The case was heard on July 1-2, 1996, and the decision was rendered on July 26.
The law was challenged on two broad pillars: first, the Northern Territory did not have valid legislative competence to pass a law of this nature because of territorial status, and second even if the NT had this competence, the government has a duty to protect life.
In a 2-1 decision, the Supreme Court rejected the challenge to the legislation. The majority, Martin CJ, and Mildren J, concluded that "simply because the Northern
Territory has not achieved statehood," does not mean that its legislative powers should be interpreted more narrowly than those of the States.
On the question of a government duty to protect life, the majority concluded that absent "a constitutionally entrenched Bill of Rights," the "legislative power is not constrained in this case by reference to 'rights deeply rooted in our system of government and common law.'" Thus, the Legislative Assembly had the legislative power to abrogate any "fundamental rights, freedoms, or immunities," provided its intention to do so was clear and unmistakeable.
The dissenting judge, Angel J, agreed with the plaintiffs that the government had a duty to protect life. He argued that the only time the state should pass a law that
226 permits the taking of a life is "the legislative establishment of intentional termination of
human life... as punishment."508
The NT Supreme Court judgement stands in stark contrast to what we saw the
Australian High Court do on the issue of prisoner voting. Recall that the High Court used
the "implied rights" of the Constitution to prevent the legislation that would have taken
Australia to the conservative pole of prisoner-voting policy. Here, the Supreme Court of
the Northern Territory emphasized the absence of a Bill of Rights and declined to use
implied rights to strike down liberalizing legislation on assisted suicide. It is worth
noting that despite this difference both judgments support some degree of liberalization.
The High Court's prisoner voting decision prevented a legislative move towards the
conservative position, whereas the Northern Territory's Court refused to interfere with a
liberalization of the policy. This refusal to stand in the way of liberalization, while not
necessarily requiring it, is consistent with many of the court decisions discussed above.
Interestingly, the case was not appealed to the Australian High Court. Opponents
of the legislation had other weapons to employ in overturning the legislation. In
particular they could invoke the Australian Constitution to do the "heavy lifting" the NT
Court refused to do. Under Section 122 of the Australian Constitution, the
Commonwealth Parliament has the ability to override territorial (but not state) laws.509
Christopher John Wake and Djiniyini Gondarra v Northern Territory of Australia, 109 NTR 1 (1996). 09 Section 122 - Government of territories: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of an accepted by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
227 In September 1996, Mr. Kevin Andrews, a Liberal party backbencher, introduced a private members bill to overturn the Rights of the Terminally III Act 1996 by amending the Northern Territory (Self Government) Act 1978. Unlike the decision that overturned the Australian Capital Territory's same-sex marriage legislation, this bill was introduced by a private government member, making it possible for the government to hold a conscience vote rather than a whipped party vote.
More interestingly, unlike the ACT same-sex marriage example, the Andrews Bill would not simply have declared the act null and void. Rather, it would have amend the
Self-Government Act so that the Northern Territory could not pass any laws in relation to direct or indirect PAS. Specifically laws "which permit or have the effect of permitting
... the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life" would be prohibited.510
Here we see echoes of the dissenting judgment from the NT Supreme Court. Simply put, the territorial government would have a duty to protect life.
The debate in the House of Representatives was both passionate and lengthy.
Indeed, over 60 Members took the opportunity to debate the Bill. While it was recognized that overturning a valid Act of the Territorial Legislative Assembly was a potential problem for responsible government, the primary focus of the debate was about the merits of assisted suicide. Peter Costello (then Treasurer), for example, observed:
My view is that the dignity of life is such an important principle to be valued above other human rights that it should never be surrendered easily and, if at all possible,
Commonwealth Government of Australia, "Euthanasia Laws Bill 1996: Second Reading," ed. House of Representatives (Canberra: Government of Australia, 1996).
228 never surrendered. It is a religious belief; a moral belief, if you like. You either take that view or you do not, in my opinion.511
The Bill passed through the House of Representatives by a margin of 88-35 on a
conscience vote, with much of the Cabinet (including Prime Minister Howard) and many
opposition members voting in favour of overturning the NT legislation.512 Of greater
interest to this study, however, are the deliberations in the Senate.
In the Senate, there were a number of constitutional questions raised about the
Andrews Bill. Section 122 of the Australian Constitution permits the Commonwealth to makes laws for Government of any territory. What is not clear, however, is whether the
Commonwealth Parliament can take back legislative powers previously conferred on the
Northern Territory, ACT and Norfolk Island. Two Senate committees were charged with commenting on the legal and constitutional implications of the Euthanasia Laws Bill
1996.
The first, the Standing Committee for the Scrutiny of Bills, reported on the Bill in
September 1996. The Committee suggested the Bill was attempting "to take away from the people living within those democracies [Northern Territory, ACT, and Norfolk
Island] an ability to elect an assembly with power to legislate about a matter of great moment."513 This exercise of power further undermines the "certainty which ought to
511 Ibid, 512 Ibid. 513 Natasha Cica, "The Senate Legal and Constitutional Legislation Committee's Report on the Euthanasia Laws Bill 1996-Background, Summary and Responses ", ed. Department of the Senate (Canberra: Parlinfoweb - Parliament of Australia, 1996).
229 exist for its citizens when any one or more of the Territories passes a valid law."514 The
Committee also cautioned the Commonwealth Parliament that passing laws which restrict the legislative powers of the Territories in a way they could not restrict the powers the
States created a second class tier of legislative houses. Finally, the Scrutiny Committee was concerned with the constitutional optics of overriding the Rights of the Terminally III
Act. Specifically, they were concerned because the Self-Government Act had been in operation for more than 15 years and as a result there was a reasonable expectation of those living in the Territory that the statute would not be amended to deprive their
"Legislative Assembly of powers it had held for a decade and a half."515 As a result of those concerns, the Committee concluded that the Andrews Bill "may be considered to trespass unduly on personal rights and liberties of citizens to participate in a democratic self-government.516
The Andrews Bill was referred to a second Senate Committee on November 7,
1996. The Senate Legal and Constitutional Legislation Committee was charged with examining the Bill on four grounds:
1. The desirability of the enactment of the provisions; 2. The constitutional implication for the Territories of the enactment of the provisions; 3. The impact of the enactment of the provisions on the Northern Territory criminal code; and 4. The impact on, and attitudes of, the Aboriginal community.
514 ibid. 5,5 ibid. 516 Ibid.
230 The Committee held public hearings on the Bill in Darwin (NT) and Canberra. Over
12,500 written submissions were received, more than have been received by any other
Senate Committee during an inquiry. The Committee published its report in March 1997, and while it contained no formal recommendations, it expressed concerns on all four issues and urged the full Senate to consider them carefully when deciding on the Bill. The
Committee decided not to make a formal recommendation to the Senate because it was a private members bill, and thus subject to a conscience vote.517
At the conclusion of the Committee hearings, the Senate resumed debate on the
Andrews Bill. Like the debate in the lower house the Senate debate was both impassioned and thoughtful. Debate ranged from the Territorial rights to the moral questions that inevitably come from this type of bill. The bill eventually passed in the
Senate, by a much narrower margin (38-33) than in the lower house, and came into effect on March 24, 1997. An amendment moved by Senator Bob Brown that would have introduced a "grandfather clause" allowing two patients who had completed the necessary procedural requirements to commit assisted suicide was defeated in the Senate by the same 38-33 margin.518
The final Act amended the Northern Territory (Self Government Act) 1978 to provide that the law-making power of the Northern Territory "does not extend to the making of laws which have the effect of permitting (whether subject conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing)
5,7 ibid. 518 Commonwealth Government of Australia, "Euthanasia Laws Bill, 1996: Senate Debate 2nd Reading," ed. Department of the Senate (Canberra: 1997).
231 or assisting of a person to terminate his or her life."519 The Act made clear that the
Northern Territory had the power to make laws regarding the withdrawal or withholding of medical treatment and for palliative care of a patient (i.e., merciful inaction), but only insofar "as not to permit the intentional killing of a patient." In short, the effect of the
Federal Act was to move NT from the liberal end of continuum towards the conservative pole.520
While the amendments to the Northern Territory (Self-Government) Act 1978 prevented the NT from enacting its own assisted suicide legislation, they did not, of course, prevent the Commonwealth from enacting such laws on the behalf of territories.
Several attempts to pass such legislation were made. For example, in February 2007,
Greens Senator Bob Brown introduced the Australian Territories Rights of the
Terminally III Bill 2007, based largely on the now defunct NT Act. It did not pass second reading.521
519 Ibid. 520 The Amendment to be inserted in the Self-Government Act 1978 in toto: (1) Subject to this section the power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life. (2) The Legislative Assembly does have power to make laws with respect to: (a) the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient; (b) medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient; (c) the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment; and (3) Application For the avoidance of doubt, the enactment of the Legislative Assembly called the Rights of the Terminally III Act 1995 has no force or effect as a law of the Territory, except as regards the lawfulness or validity of anything done in accordance therewith prior to the commencement of this Act. 521 Tiedemann, "Euthanasia and Assisted Suicide: International Experiences," 14.
232 The federal debate outlined above concerned only territorial jurisdictions and does not affect the states' ability to pass laws on PAS. Nevertheless, Australian states have not (or not yet) moved in the same liberalizing direction on the issue of PAS. The State
Parliament of Victoria introduced a private members' bill in June of 2008 on the issue of physician assisted suicide. Entitled Medical Treatment (Physician Assisted Dying) Bill
2008, it sought to allow "a mentally competent adult person, who is suffering intolerably from a terminal illness or advanced incurable illness, to request a doctor to provide medical assistance (either direct or indirect) that allows that person to end his or her life."522 The bill was defeated at second reading 25-13.523
To sum up, Northern Territory legislation that would have shifted that part of
Australia to the liberal pole of the policy continuum was subsequently overturned by the
Australian Commonwealth Parliament, returning all Australian jurisdictions to the conservative pole on the issue of physician assisted suicide. For those interested in the effect of institutional arrangements on policy moderation, the Australian experience gives a mixed message about the impact of legislatures. On the one hand, the NT legislature produced liberalizing legislation. On the other hand, the Commonwealth Parliament overturned that legislation, moving policy back toward the conservative pole. It is true that the Commonwealth Parliament left the door ajar for the territories to pass some type of merciful inaction law, and states remain able to enact PAS laws.
Parliament of Victoria, "Current Issues Brief No 2: Medical Treatment (Physician Assisted Dying) Bill 2008." 523 David Rood, "State MPs Vote Down Euthanasia Bill," The Age, September 11 2008.
233 Canada
The act of attempted suicide was decriminalized in Canada in 1972, but like most other
Western nations, Canada prohibits PAS. In particular, Section 14 of the Criminal Code provides that "no person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given." Section 229 prohibits murder "where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not."524 In this context, a doctor who administers an injection
(direct PAS) would be criminally liable. Moreover, under Section 241 anyone who " (a) counsel [s] a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years."525 This provision criminalizes indirect PAS.
In 1976, the Law Reform Commission began what it called "an extensive research project on human life." In 1982, the Commission delivered its final report. It recommended against legalizing or decriminalizing PAS, including for terminally ill persons. By 1986, however, the Commission changed positions:
Government of Canada, "Criminial Code of Canada," ed. Department of Justice (Ottawa: Parliament of Canada, 2009). 525 Ibid. 526 Ian Gentles, "Introduction," in Euthanasia and Assisted Suicide: The Current Debate, ed. Ian Gentles (Toronto: Stoddart, 1995), 8. S27Marlisa and Dominique Valiquet Tiedemann, "Euthanasia and Assisted Suicide in Canada," ed. Research Service Parliamentary Library (Ottawa: Library of Parliament, 2008).
234 The consultations between publication of Working Paper 28 (1982) and the drafting of this Report provide clear evidence that the legal profession, the public and those working in the health professions are in favour of legal reforms or at least clarifications in the area of euthanasia, aiding suicide and the cessation of treatment.528
The Government of Canada did not act on those reforms, but a number of private members' bills have been introduced on the topic of PAS.
In 1991, two separate bills were introduced on the subject of assisted suicide: Bill
C-203 by Robert Wenman (PC) on May 16 and C-261 by Chris Axworthy (NDP) on June
19. Mr. Wenman's Bill, An Act to Amend the Criminal Code (terminally ill persons), was primarily designed to protect medical practitioners who provide "proper and ethical" treatment to their terminal patients, but who in the process of treatment may violate the
Criminal Code. The bill laid out three scenarios where this may occur. First, if a practitioner withholds or withdraws medical treatment at the request of the patient; second, if a doctor withholds or withdraws treatment because the "treatment is therapeutically useless and not in the best interests of the. patient"; and finally, where a doctor administers pain medication resulting in possible "double effect."529 Simply put, the bill provided legal cover for doctors who contributed to the death of patients through merciful inaction. The bill made no provision for either direct or indirect PAS.
528 Gentles, "Introduction," 8. 529 Tiedemann, "Euthanasia and Assisted Suicide in Canada."
235 Axworthy's Bill C-261 The Euthanasia and Cessation of Treatment Act'1'0 made the same provisions for medical providers as C-203, but added a procedure for indirect and direct PAS. Like the legislative initiative discussed above, Bill C-261 included a number of qualifying conditions that had to be met. These conditions included the patient applying for PAS using a specific form, witnessed by two people not related to the applicant. The form would be accompanied by a medical certificate signed by the attending physician. The document package would then be "refereed" by someone appointed by the Attorney General, with a decision no later than five days after the request was made. Successful applicants would receive a "euthanasia certificate" which was valid for 3 months and could be revoked by the patient at any time. Upon the receipt of the "euthanasia certificate" the patient could apply to the attending physician for either a lethal cocktail of drugs or if the patient was unable to ingest the medication, the doctor could perform direct PAS.531
Both bills were debated in the House of Commons, with Bill C-203 being referred to committee, from which it never emerged. Bill C-261, inspired strong criticism during the debate primarily because of the inclusion of direct PAS, and was subsequently dropped from the Order Paper.
At about same time, a Charter of Rights and Freedoms challenge was launched in
British Columbia by Sue Rodriguez, who suffered from amyotrophic lateral sclerosis
The full title of the Act was: An Act to legalize the administration of euthanasia under certain conditions to persons who request it and who are suffering from an irremediable condition and respecting the withholding and cessation of treatment and to amend the Criminal Code. 531 Marilynne Seguin, "How Does the Law Stand in Canada?" http://www.dyingwithdignity.ca/canlaw.html#SEClE.
236 (Lou Gerhig's Disease). Court records indicate her condition was "rapidly deteriorating" and she would soon lose the ability to swallow, speak, walk or move her body without assistance. It is important to note that Rodriguez wanted to live past the point of being able to commit suicide without assistance. That is, she wanted a physician to help her commit suicide when the disease made life intolerable for her.532 In short, she wanted direct PAS. Accordingly, her victory, had she secured it, would have taken Canada past the most common middle ground position of "indirect PAS."
Rodriguez challenged the validity of section 241(b) of the Criminal Code under sections 7 (life, liberty, and security of the person), section 12 (cruel and unusual treatment and punishment), and 15(1) (equality before the law) of the Charter of Rights.
The cruel-and-unusual-treatment claim played a minor role in the litigation and will not be considered here. Rodriguez's primary contention was that section 7 (life, liberty and security of the person) included the right to control how, when, and why she died, all of which was denied by section 241(b) of the Criminal Code of Canada. In addition, she claimed that 241(b) violated s. 15 of the Charter by discriminating between those who could lawfully commit suicide themselves and those who, by virtue of disability (a prohibited ground of discrimination under s. 15), were unable to do so without assistance.
The trial court judge, two of three judges at the British Columbia Court of Appeal, and five of nine Supreme Court judges denied Rodriguez's claims. The other five participating judges (1 at the Court of Appeal and four at the Supreme Court) would have upheld her claims (though for different reasons).
Rodriguez v. British Columbia (Attorney General), 76 B.C.L.R. (2nd) 145 (1993).
237 The case presents a classic "clash of rights," especially in the context of section 7, which protects everyone's "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The rights to "liberty" and "security of the person" most obviously suit
Rodriguez's claims, but the section clearly also protects the "right to life." We saw in the
European Court's Pretty case that it is possible to interpret the "right to life" to include the right to choose how life is to end. But we also saw that this interpretation has seemed counter-intuitive to most judges. In the Rodriguez litigation, one of the dissenting judges at the Supreme Court, Justice Cory, accepted this uncommon interpretation of the right to life. "Dying is the final act in the drama of life," said Justice Cory. "If, as I believe, dying is an integral part of living," he continued, "then as a part of life it is entitled to the constitutional protection provided by s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life" (emphasis added).533 Justice
Cory was a clear outlier in this respect, however. Much more common to the participating
Canadian judges was the view we saw in Pretty and elsewhere, namely, that a constitutionally protected right to life more naturally counted in favour of traditional prohibitions of assisted suicide than against them. This view was clearly expressed by the
Supreme Court majority opinion, written by Justice Sopinka, which conceded the cogency of section 7's "liberty" and "security of the person" rights to Rodriguez claims, but insisted that her case could not "be divorced from the sanctity of life, which is one of the three
Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 at para 231.
238 Charter values protected by s. 7." The Sopinka majority clearly saw section 7's right to life weighing against Rodriguez rather than for her.
So had the trial judge and the Court-of- Appeal majority. The trial judge called
Rodriguez's claim "tantamount to imposing a duty on physicians to assist patients who choose to terminate their own lives, which would be diametrically opposed to the underlying hypothesis upon which the Charter of Rights and Freedoms is based, namely, the sanctity of human life."535 The Appeal Court emphasized that the "guiding principle has always been, and continue[s] to be, the sanctity of life."536 Most of the dissenting judges did not adopt Cory's tactic of reinterpreting the right to life to include a right to death. Instead, they placed greater weight on the rights to "liberty" and "security of the person," and grounded a right to death on the latter rights.
The majority of judges who emphasized the "sanctity of life," did not disagree with the dissenters about the policy direction implied by the "liberty" and "security" rights.
Indeed, they conceded that Rodriguez's s.7 rights to "liberty" and "security of the person" had suffered a. prima facie infringement. For example, Justice Sopinka's Supreme Court majority, maintaining that the liberty and security rights in section 7 protect "personal autonomy [including] control over one's physical and psychological integrity free from state interference," concluded that because "s. 241(b) deprives the appellant of [this] autonomy [it] impinges on the security of the person."537
Rodriguez v. British Columbia (Attorney General), 76 B.C.L.R. (2nd) 145 (1993) at para 127. Ibid. Ibid. 180. Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 at para 138.
239 But a. prima facie infringement of s.7 rights can be avoided or justified if it is "in accordance with the principles of fundamental justice." It is here that the "third value" of section 7, the sanctity of life, came into play for most of the participating judges.
Although the "right to life" was not directly engaged - because the existing legislation did not infringe that right - the "value" underlying it helped to inform the relevant principles of fundamental justice that could justify limiting the rights to liberty and security of the person. In Sopinka's words, since there "is nothing approaching unanimity" on the issue of PAS, "human life must be respected and we [the Court] must be careful not to undermine the institutions that protect it."538
The dissenters understood "fundamental justice" differently. Thus the lone dissenter at the Court of Appeal - Chief Justice McEachern - argued that "any provision which imposes an indeterminate period of senseless physical and psychological suffering upon someone who is shortly to die anyway cannot conform with any principle of fundamental justice."539
At the Supreme Court, Justice McLachlin (joined by Justice L'Heureux-Dube) came to a similar conclusion about fundamental justice, though by a slightly different route.
McLachlin insisted that the blanket ban on assisted suicide did "not comport with the principles of fundamental justice" because it was arbitrary in light of its purpose.540 Given that Parliament has made unassisted suicide legal, an important legislative purpose is to respect autonomous individual choice. As Justice Lamer's dissenting opinion put it in a
Ibid, at para 176. Quoted in ibid, at para 75. Ibid, at para 198.
240 slightly different context, repeal of the prohibition of suicide itself meant that "self- determination was now considered the paramount factor in the state regulation of suicide."541 For McLachlin, the blanket ban on assisted suicide was intended to protect the same autonomous choice by ensuring that the weak and vulnerable are not pressured into doing what they really do not want to do. But Rodriguez herself could in no way be understood to be acting out of anything other than her own free will. Thus the law denied
Rodriguez the very choice it aspired to protect:
she must be denied that choice because of the danger that other people may wrongfully abuse the power they have over the weak and ill, and may end the lives of these persons against their consent. Thus, Sue Rodriguez is asked to bear the burden of the chance that other people in other situations may act criminally to kill others or improperly sway them to suicide. She is asked to serve as a scapegoat.542
McLachlin saw this as arbitrary because securing the legislative objective of free will can be achieved in better ways than denying that very free will. And arbitrariness in light of legislative purpose is contrary to the s.7 standard of fundamental justice.
The same essential pattern - agreement on a prima facie rights violation but disagreement on the matter of justification - was played out with respect to the s.15 discrimination issue (for the smaller number of judges who chose to engage that issue). The difference was that on the s. 15 violation, justification arguments occurred under s.l of the
Charter rather than under a limitation clause ("except in accordance with the principles of
' Ibid, at para 112. 2 Ibid, at para 206.
241 fundamental justice") internal to the relevant rights section. Otherwise the contending claims were basically parallel.
It is important to note that those judges who invoked the "sanctity of life" to support the existing ban on assisted suicide, were not invoking it to prevent more liberal legislation, as the New Zealand Attorney-General had done. Like much of the jurisprudence analyzed above, the majority of Canadian judges are better described as "restrained" than
"conservative." That is, while they saw no constitutional impediments to the blanket ban on assisted suicide, neither did they think that it was constitutionally required. The matter was open to considerable legislative discretion.
For the dissenters, by contrast, the legalization of some assisted suicide was constitutionally required. Thus Chief Justice Lamer would have given Parliament one year
"to decide what, if any, legislation should replace s. 241(b)(6)."543 If it chose to enact no replacement, of course, then the existing law would be invalidated and assisted suicide would become legal. If it chose to enact a law, it would be able to regulate the conditions governing assisted suicide. In the meantime, Justice Lamer was prepared to grant Sue
Rodriguez a "constitutional exemption" from the existing law, and would impose his own regulatory conditions:
first, the constitutional exemption may only be sought by way of application to a superior court; second, the applicant must be certified by a treating physician and independent psychiatrist [and] be competent to make the decision to end her own life, and the physicians must certify that the applicant's decision has been made freely and voluntarily, and at least one of the physicians must be present with the
Ibid, at para 98.
242 applicant at the time the applicant commits assisted suicide; third, the physicians must also certify: (i) that the applicant is or will become physically incapable of committing suicide unassisted, and (ii) that they have informed him or her, and that he or she understands, that he or she has a continuing right to change his or her mind about terminating his or her life; fourth, notice and access must be given to the Regional Coroner; fifth, the applicant must be examined daily by one of the certifying physicians; sixth, the constitutional exemption will expire [31 days after the date of the certificate]; and seventh, the act causing the death of the applicant must be that of the applicant him- or herself, and not of anyone else.544
Justice McLachlin generally agreed with this remedy, but was not convinced that all of
Justice Lamer's constraining conditions were necessary.545
A number of attempts were made at passing some type of assisted suicide law following the Rodriguez decision. In February 1994, for example, Svend Robinson
(NDP) brought forward private member's Bill C-125, An Act to Amend the Criminal
Code (assisted suicide). The bill was debated but dropped from the Order Paper.546
In February 1994 then Justice Minister Allan Rock suggested that assisted suicide should be considered by Parliament. The following day, February 15th, then Prime
Minister Jean Chretien said there would be a free vote on whether to legalize assisted suicide in Canada. On February 23, the Senate passed a motion to establish a committee examining the "legal, social and ethical issues relating to euthanasia and assisted suicide." The report was tabled in June of 1995.547 The Committee was split 4-3 on
544 Ibid, at para 114. 545 Ibid, at para. 226. 346 Tiedemann, "Euthanasia and Assisted Suicide in Canada." 547 The Special Senate Committee on Euthanasia and Assisted Suicide, "Of Life and Death - Final Report," ed. Senate of Canada (Ottawa: Government of Canada, 1995).
243 whether assisted suicide would remain a criminal offence, with the majority concluding that it should remain illegal.548 The promised free vote on the issue never took place.
Several additional private members' bills have been introduced into the Parliament of
Canada on the issue of assisted suicide.549 All have either died or been dropped from the
Order Paper without a vote.
Conclusion
In the previous two case studies, we saw strong-form judicial review taking
Canada beyond the middle ground on the policy continuum to the liberal pole, while a more legislatively oriented system, lacking strong-form judicial review on rights issues, positioned Australia more firmly within the moderate middle. As noted in chapters 4 and
5, this provides some support for the claim that checks and balances involving constitutionally empowered courts are more polarizing than political checks and balances involving a more modest judicial role. Some support, it should be emphasized, not unambiguous or unqualified support. The previous chapters noted enough ambiguities and nuances in the comparative policy process to warrant caution in coming to firm conclusions.
This chapter introduces additional complexities and reasons for caution. For one thing, the pattern of the Canadian Court taking policy to the liberal pole is clearly broken.
With respect to assisted suicide, the Rodriguez case helped to preserve the conservative
5 CBC News, "Right to Die Debate Continues," http://archives.cbc.ca/politics/rights_freedoms/topics/l 135/. 549 For a complete list see Tiedemann, "Euthanasia and Assisted Suicide in Canada."
244 pole instead. At the same time, at least one Australian legislature enacted liberalizing legislation (though it was then overridden by another legislature). In the end, both processes left the conservative tradition in place in both countries.
This break in pattern is clearly part of the more general international conservative tilt on assisted suicide as compared to prisoner voting rights or same-sex relationships.
Legislative moves away from the conservative tradition on assisted suicide are rarer than they have been on the other two issues, as are judicial moves in a liberal direction. On prisoner voting rights and same-sex marriage the judiciary never acted to prevent liberalization and often contributed to it, even shifting policy to the liberal pole in a number of instances (including Canada). With respect to assisted suicide, by contrast, judicial and quasi-judicial processes have much more often acknowledged the legitimacy
(though typically not the necessity) of traditional bans on assisted suicide. And while courts have sometimes helped shift policy into the middle ground, they have not required moves to the liberal pole.
In this context, Canada's "conservative" Rodriguez judgment actually takes on a different, less conservative meaning. Given the international context, in other words, it is remarkable that Canada came within a single judicial vote of going where other courts have not, namely, beyond legalizing indirect PAS (the usual middle ground position) to establishing direct PAS. Had this occurred, we would once again have seen Canada's
Court positioning this country among those jurisdictions at or near the liberal pole of the policy continuum.
245 And this may yet occur. To the extent that legislature and courts have thus far been comparatively conservative on the issue of assisted suicide, they are remarkably out of step with public opinion, which is more liberal on this issue than on prisoner voting rights or same-sex relationships. This public opinion provides fertile ground for eventual policy reform, including possible reform by the Supreme Court. On both of the previous case-study issues, we have seen the Supreme Court shift ground over time from judgments that were relatively restrained (Sauve I; Egari) to judgments that represented greater liberal activism (Sauve II; Mv. H). Opportunities for the Court to undertake a similar shift on assisted suicide are bound to arise. The likelihood of such a shift is increased both by public opinion and the very narrow division in Rodriguez. Changes in the Court's membership may also play a role.
Nothing, of course, precludes legislative reform, either in Canada or Australia.
Again, the pressures of public opinion may eventually break down the legislative conservatism (at least at the national level) that has been evident in both countries. If the above review of policy is any indication, such legislative reform is most likely to take the middle ground form of legalizing indirect PAS. A more dramatic shift to legalizing direct
PAS may be legislatively possible, but seems more likely to come through judicial decision in Rodriguez-like circumstances (especially given how close the Court came to such reform in Rodriguez itself). If this speculation is plausible, of course, it is because the hypothesis that courts are ultimately more apt to go to polar positions retains some plausibility even in the context of the assisted suicide debate.
246 CHAPTER 7: CONCLUSION - MODERATION RECONSIDERED
This study has sought to contribute comparative evidence to longstanding debates about which of two different systems of checks and balances best achieves policy moderation. The two contending systems are those that include "strong-form" judicial review under a constitutionally entrenched rights document and those that do not. The latter rely more heavily on checks and balances within and among the branches of government, including a more modestly armed judicial branch. One side in the debate sees moderation flowing from a "dialogue" between dispassionate courts exercising strong-form review and impassioned (hence extreme-prone) legislatures. The other side, believing that courtroom "rights talk" fans the flames of extremism, stresses the moderating influence of other (generally more "political") checks and balances. In this second view, courts can indeed contribute to a moderating inter-branch "dialogue," but are more apt to have this beneficial influence when they exercise some kind of "weak- form" review.
Canada (with its 1982 Charter of Rights and Freedoms) and Australia (with its ongoing rejection of a strong-form constitutional bill of rights) are two otherwise similar regimes that have positioned themselves on opposite sides - indeed at opposite ends - of this debate. As such, they present obvious and attractive candidates for comparative analysis. Our question thus concerns the fate of policy moderation in these two countries.
That question is best addressed by focusing on so-called "two-sided" moral issues, such as abortion, euthanasia, gay rights, and criminal punishment. These issues
247 attract the passionate and opposition of extreme positions - e.g., the "pro-life" and "pro- choice" camps on the abortion issue - that are difficult to compromise. Moderate middle ground positions - e.g., abortion subject to some forms of regulatory constraints - typically exist, but are easily drowned out by the more passionate polar extremes of the policy continuum. Theodore Lowi captures the kind of polarized politics associated with two-sided moral issues particularly well. The polar extremes on such issues, he says (to repeat a quotation provided in chapter 3), refuse "to join what most of us consider mainstream political processes, insisting instead on trying to convey political issues into moral polarities, claims into rights, legislation into litigation, grays into blacks and whites, and campaigns into causes and crusades."550 Clearly, these are issues especially in need of moderating checks and balances.
Lowi's report that two-sided moral issues tend to move from "legislation into litigation" is particularly important for our purposes. In other words, not only are two- sided moral issues among those most in need of moderating influences, they are precisely the kinds of issues most likely to end up in court, especially under rights documents of various kinds. Clearly, such issues provide the best test of competing claims about the moderating or polarizing influence of judicial power. Accordingly, this study compared the Canadian and Australian policy processes and outcomes on three two-sided moral issues: prisoner voting rights, same-sex relationships, and euthanasia. These three issues came to the fore in both countries during roughly the same time periods - all after 1982
Lowi, "Forward: New Dimensions in Policy and Politics," xiv.
248 (i.e., after Canada adopted the Charter of Rights and Freedoms, thereby launching the institutional divergence of interest to this study).
A small number of case studies, of course, cannot definitely settle the institutional question asked by this study. We need additional case studies, encompassing a broader range of jurisdictions and institutional arrangements, and supplemented by appropriate quantitative analyses. Still, while three case studies will not provide definitive answers, they can shed some light and provide clarifying detail.
Additional light is shed by some of the broader comparative background I gathered to provide context for the Canadian-Australian comparisons. For each issue, I surveyed policy positions, judicial opinion, and public opinion in other liberal democratic jurisdictions. The primary purpose of these surveys was to learn whether a plausible middle ground on the three policy issues existed "on the ground" as it were, and not just in logic. But these surveys can also be mined for secondary information about our central institutional question. For example, the positions taken by courts in other liberal democracies obviously provide additional texture to an analysis of the moderating or polarizing tendencies of judicial intervention under different legal regimes. With this in mind, what do we learn from the case studies?
Beginning on the judicial side of the equation, one suggestive lesson seems to be that the policy influence of courts leans markedly in one direction - the more liberal direction - on the relevant policy continuum (leaving aside for a moment how much courts "polarize" in that direction). It was rare indeed for a rights document to be read as requiring the conservative pole of the policy continuum. The most prominent case
249 occurred in New Zealand with respect to the issue of assisted suicide. Ironically, the relevant rights document in that instance (the New Zealand BORA) is a very "weak form" document as far as judicial power is concerned. For that reason, the conservative decision based on that document was a "quasi-judicial" one, made not by a judge, but by the Attorney-General. With only one exception, the judges we encountered did not similarly embrace the conservative pole on any of our three policy continuums.551
Although it was rare forjudges to require the conservative pole, some allowed it as an option open to legislative discretion. This was especially true on the issue of assisted suicide, where the posture of judicial "restraint" vis-a-vis the conservative pole was exhibited by, among others, the European Court, many U.S. courts (including the
Supreme Court), and the Canadian Supreme Court. The European Court adopted similar restraint with respect to same-sex relationships, refusing even to require the middle ground of civil unions (although it did approvingly underline the emerging consensus on at least that form of recognition). On prisoner voting rights, the U.S. Supreme Court has similarly permitted (while not requiring) the most conservative policy options.
It was relatively common for the judges we encountered not to allow the conservative pole of the policy continuum and to require some degree of liberalization. In a number of cases it was a moderate middle ground option that was judicially required.
This occurred primarily with respect to the issues of prisoner voting and same-sex relationships. The European Court adopted this posture with respect to prisoner voting rights, as did the Australian High Court (using "implied bill of rights" arguments). On
551 The exception is the district court judge in the Oregon PAS case.
250 same-sex relations, the supreme courts of such states as Vermont and New Jersey have set domestic partnership or civil union arrangements as the minimal requirement under state constitutions.
Finally, we saw a number of instances in which courts found that the liberal pole of the policy continuum was constitutionally required. This occurred with respect to prisoner voting rights in South Africa and Canada. Similarly, the high courts in South
Africa and a number of American states have mandated same-sex marriage. In Canada, the Supreme Court has not formally reached this conclusion, but several provincial appeal courts have, and that has been enough to produce the same policy outcome.
In sum, it was not uncommon forjudges on these issues to require either the middle ground or the liberal pole on the relevant policy continuum. At the same time, they virtually never required the conservative pole, though they sometimes permitted it.
While this overall distribution of judicial action reveals an obvious directional tilt, it also calls into question the claim that judicial policy interventions are necessarily polarizing.
The instances in which judges resisted the conservative pole and moved policy into the middle ground surely provide some prima facie evidence to those who maintain that moderate judges can beneficially offset the extremist tendencies of impassioned legislatures (at least if those legislatures exhibit conservative extremism).
But do these instances provide evidence for the claim that strong form judicial review is likely to have a moderating rather than a polarizing effect? Remember that opponents of strong form review concede that judges exercising weak form review can play a useful moderating role, either because judges exercising this form of review can
251 more easily be overridden, or because (cognizant of their weakness) they will issue less adventurous rulings. Those who take this view might want to emphasize the strong-form review exercised by, say, the South African and Canadian Courts in taking their respective countries to the liberal pole of the continuum on prisoner voting and same-sex marriage. Supporters of this view may similarly contend that the moderating judicial decision on prisoner voting rights in Australia was handed down in a judicial culture of very weak-form review on rights issues. How well does this association of strong-form review with polarization and weak-form review with moderation hold up?
In support of the association, one might call upon the British and European situations. The British Human Rights Act is clearly a weak-form document. So, arguably, is the European Convention on Human Rights. The latter, as Tushnet points, out incorporates the idea of a "margin of appreciation" that, understandably, permits member nations to vary in how they decide to implement Convention rights. For Tushnet, this doctrine places review by the European Court on the weak-form side of the ledger
(though he believes there is an evolution in the strong-form direction).552 Arguably, this
"margin of appreciation" helps explain the relatively cautious European Court judgments on all three of our issues, and particularly the fact that when it did require policy liberalization on the prisoner voting issue, it mandated only the middle ground option of partial prisoner enfranchisement.
The association between weak-form judicial review and policy moderation is far from perfect, however. As compared to the U.S. Supreme Court, American state courts
Tushnet, Weak Courts, Strong Rights, 71.
252 applying their state constitutions exercise relatively weak-form judicial review, because reversal through constitutional amendment is comparatively easy (usually through a ballot measure). California reversed a liberalizing same-sex marriage judicial decision in this way. At the same time, full same-sex marriage rights have been implemented in several states through such comparatively weak-form judicial review. Equally important, strong-form review does not always lead to the most liberal policy outcome. The United
States Supreme Court, the archetypical strong-form court, has not tackled the same-sex marriage issue, and has exhibited self-restraint - thus preserving legislative discretion - on prisoner voting and assisted suicide. A perfect association between strong-form review and policy polarization is as difficult to sustain as one between weak-form review and policy moderation.
Both associations are stronger if we look only to our two "most similar" countries: Canada and Australia. On both prisoner voting and same-sex relations,
Australia's less judicially oriented policy process has positioned that country firmly in the moderate middle while Canada's judiciary, exercising strong-form review, has shifted policy to the liberal pole of the continuum. On the issue of assisted suicide, both countries remain at the conservative end of the spectrum - in Canada's case because the
Supreme Court majority adopted the position of restraint and left the matter to legislative discretion, where, of course, it remains even more naturally in Australia. However, even on this issue, with its internationally more pronounced tilt toward policy conservatism and judicial restraint, it bears noting that Canada came within one judicial vote of ending up among the very small number of jurisdictions occupying the most liberal pole of the
253 policy continuum. Given the comparatively liberal nature of public opinion on this issue, along with the demonstrated capacity for judicial changes of heart, it is possible that
Canada may yet reach that destination through subsequent litigation. That Australia would similarly by-pass the middle ground through its more legislatively oriented process seems less likely.
This brings us to the legislative side of the policy equation. Do legislatures unchecked by dialogue with strong-form courts succumb to passionate extremism, or do non-judicial checks, such as (but not limited to) bicameralism, serve to moderate their policy outcomes? Here, too, the picture is mixed. On assisted suicide, the national legislatures in both countries have thus far been in tune with the widespread international policy conservatism of this issue. However, the international context makes this a less revealing context in which to evaluate legislative tendencies toward extremism or moderation. The other two issues are more illuminating.
On prisoner voting rights, we saw that Australia's bicameralism helped to preserve middle ground options against the challenges of either extreme on several occasions. This check eventually broke down, however, allowing the Howard government to buck a strong international trend and enact, for the first time in Australian history, the blanket disenfranchisement of all prisoners that characterizes the conservative pole of that policy continuum. When that happened, the High Court stepped in, but, as noted, it did so cautiously and only to re-establish the middle ground.
On same-sex relationships, we again saw the Howard government leaning strongly in a conservative direction, but being unable to fully implement its desires
254 because of political checks. Bicameralism played a role here, too, but a more limited and modest one. More important were such things as the perceived need to preserve bi partisan support for the traditional definition of marriage and, ultimately, the electoral cycle. The latter eventually led to a change of government and the incorporation of same- sex couples in the regime of common law de facto relationships. On this issue, the judiciary played a much more modest role than it did on prisoner voting rights. On both issues the Australian system of checks and balances (including a judicial component, but not strong-form review) produced middle ground policies.
In Canada, too, legislative processes on both issues were originally oriented to the same moderate middle. This was true of prisoner voting rights, where the traditional blanket disqualification had been abandoned in favour of a length-of-sentence based disqualification. It was similarly true of same-sex relationship policy, where middle- ground extension of benefits was developed in conjunction with the expression of multi- partisan support for the traditional definition of marriage. True, on both of these issues
Canadian legislators were prodded in these moderating directions by Charter-based litigation. This judicial contribution would provide evidence for the moderating influence of strong-form courts, were it not for the fact that ongoing litigation quickly pushed the country well past the moderate middle.
In short, our three case studies present a decidedly mixed and nuanced picture.
Reality is often too messy to neatly fit theoretical categories or unambiguously support either side of a dichotomous debate, and so it has proven to be on the issues addressed by this study. Those who think strong-form judicial review jeopardizes policy moderation
255 will certainly find some support for their contention in these pages, but not unqualified support. Those on the other side of the debate will also find supporting evidence here. It would certainly be immoderate to make the claim that courts are always polarizing and legislatures are always moderating, or indeed to claim the reverse. Just as one swallow does not a summer make, three swallows do not make a flight.553 If the claimed difference between moderating legislatures and polarizing courts (or the reverse) exists, it will turn out to be a matter of degree or tendency. And tendencies or matters of degree cannot be established by any one, or indeed three, case studies. Sorting out the factors that help fully explain the degree or tendency will require further work. Such work will benefit from additional texture and nuance our case studies have added to the theoretical debate. For example, the distinction between strong-form and weak-form judicial review
(and the varieties within each of these broad categories) clearly need to be more thoroughly integrated with the debate about the moderating or polarizing tendencies of
"rights talk."
553 A group of swallows is called a "flight"
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