This paper explores the role of parties, interest groups and public opinion in the enactment of ‘controversial’ social policy particularly when the issue is salient with political elites, but not salient with the public. The author analyses party documents, interest group testimony, media statements and public opinion data. He finds that political elites in Canada facilitated the legalisation of gay marriage while anti-gay marriage politicians and interest groups were unable to reframe gay marriage so as to benefit their cause. While political elites engaged in an ongoing discourse, Canadians remained divided on same-sex marriage but also uninterested in the issue. This paper also discusses the key differences surrounding the legalization of same-sex marriage between the United States and Canada.
Dans cet article, l’auteur examine le rôle que jouent les partis politiques, les groupes d’intérêt et l’opinion publique dans la promulgation d’une politique sociale « controversée », en particulier lorsque le sujet est important pour les élites politiques, mais ne l’est pas pour le public. Il analyse des documents de différents partis, des témoignages de groupes d’intérêts, des déclarations aux médias et des données sur l’opinion publique. Il constate que les élites politiques du Canada ont facilité la légalisation du mariage entre personnes du même sexe, tandis que les politiciens et les groupes d’intérêts opposés au mariage gay ont été incapables de replacer ce type de mariage dans une nouvelle perspective, de façon à faire avancer leur cause. Les élites politiques sont engagées dans un discours continu; toutefois, la population canadienne non seulement demeure divisée sur la question du mariage gay, mais ne s’y intéresse pas vraiment. Le présent article contient également une analyse des principales différences entre les mesures législatives adoptées par les États-Unis et par le Canada sur le mariage entre personnes du même sexe.
Corps de l’article
The legalisation of gay marriage in Canada provides an opportunity to examine, in some detail, the effects of both elite and public preferences on policy outcomes. Unlike the US, political elites in Canada have facilitated the legalisation of gay marriage rather than block it. At the same time, gay marriage in Canada sheds light on democratic theory and on the ways in which parties and politicians, public opinion, issue salience and interest organisations affect the enactment of controversial social policy. More importantly, it is an example of the ways in which these factors matter when there exists a disparate degree of issue salience between elites and the public. I suggest that this gap in issue salience served to facilitate the legalisation of same-sex marriage (SSM).
In 1999, Bill C-23 which upheld the traditional definition of marriage was supported by the Liberal Party of Canada and Prime Minister Jean Chrétien. In a 2002 press release, Martin Cauchon, the justice minister, argued that there was no consensus among the courts or the public on the issue of gay marriage. Although Cauchon favoured SSM, he apparently took a position against gay marriage because this was the position of the Liberal government at the time (Larocque, 2006 81). However, by 2003, the Liberals and the Prime Minister rejected a Conservative motion similar to Bill C-23. What changed? A few months earlier, in June, the Ontario Superior Court ruled (in Halpern v. Canada  O.J. No. 2268) that the Canadian definition of marriage violated equality provisions in the Charter of Rights and Freedoms. The federal Liberal government could have appealed that decision but it did not. Their position most likely changed as a result of several factors: the majority of the Liberal cabinet was in favour of SSM; they anticipated future court rulings in favour of SSM; and they anticipated growing public support for SSM.
In 2004, the Liberals asked the Supreme Court if the traditional definition of marriage is constitutional. The Court ruled that the government could amend the existing definition of marriage. However, unlike the Ontario Superior Court, the Supreme Court did not rule on whether the equality provision in the Charter required a revision of the definition of marriage. The Court did not answer the question for several reasons:
First, the federal government has stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion on this question[…]. Second, the parties in the previous litigation, and other same-sex couples, have relied upon the finality of the decisions and have acquired rights which are entitled to protection. Finally, an answer to Question 4 has the potential to undermine the government’s stated goal of achieving uniformity in respect of civil marriage across Canada. While uniformity would be achieved if the answer were ‘no’, a ‘yes’ answer would, by contrast, throw the law into confusion2004 SCC 79,  3 S.C.R. 698
Though the Court did not answer the question, the likelihood of ruling against the government was small for reasons the Court itself cites. The Court was not legislating from the bench. Rather, the government was able to use the Supreme Court to lend legal and constitutional credence to their already stated position on SSM. The Liberal minority government legalised same-sex marriage in 2005.
I argue that the legalisation of gay marriage in Canada can be best understood within a context where the public, though divided, largely remained uninterested in the issue, while politicians and interest organisations, whether pro or con, remained engaged in the issue until the act was passed. I examine party politics, public opinion, issue salience and interest group activity, drawing on original data gathered from monthly public opinion polls, newspaper articles, media statements from interest groups, party platforms and Throne speeches, and organisational testimony before the Standing Committee on Justice and Human Rights and the Legislative Committee on Bill-C-38.
In considering these factors, I seek to explain two important conditions which facilitated gay marriage legislation: (1) the disparate level of interest in SSM between elites and the public; (2) the framing of gay marriage by politicians and interest organisations. The implication of this study lies not in determining which factor matters more in explaining the enactment of controversial policy. Rather, it sheds light on how these factors might matter when we consider the relationship between public and elite preferences. I begin with a brief review of existing arguments which help explain the favourable context in Canada that allowed for the legalisation of gay marriage. I then discuss the relationship between public preferences and government responsiveness, paying careful attention to the role of issue salience in amplifying or diminishing this relationship. I then turn to elite preferences where I first discuss the role of parties and politicians in setting the agenda and then turn to the role of interest organisations in increasing discourse surrounding the issue, and in influencing policy outcomes. I also discuss the ways in which organisations influence outcomes, with special focus on organisational issue framing.
What Explains Preferences for Same-Sex Marriage in Canada?
Institutional explanations, political cultural explanations, and issue framing help explain the “take off” (Rayside, 2007 2008) of gay marriage rights in Canada. In their comparative analysis of the SSM debate in the US and Canada, both Smith (2008) and Rayside (2008) outline similar institutional characteristics that were favourable to gay marriage proponents in Canada. First, unlike the US, both the criminalisation of homosexuality and the definition of marriage are within federal jurisdiction (see also Larocque). Over the last thirty years, both the federal and provincial governments have been gradually redefining the nature of heterosexual marriage (i.e., common law marriage) which created precedence for redefining marriage in general. Second, the strong equality language of the Canadian Charter of Rights and Freedoms created a new tool for courts to challenge the government. Third, Canada has a highly centralised federal policy-making capacity which, as Rayside (2008 32) argues, has been beneficial for SSM proponents in Canada. Canada also has a highly decentralised federation. As provincial governments and courts began to recognise SSM, increased pressure was placed on the Supreme Court and federal government to act. Due to the highly centralised federal government, and favourable provincial court and government positions on SSM, the Canadian political system has limited entry points for anti-gay marriage organisations, especially the conservative Christian right.
The most discussed institutional aspect that explains the take-off in gay marriage rights in Canada is the role of the courts. Although Canada does not have the history of judiciary activism like the US, there has been a growing relationship between Canadian legislatures and the courts, as well as growing judicial empowerment since the Charter (Smith, 2005b; Smith, 2008; Schwartz and Tatalovich). As Smith (2005b) argues, the judicial empowerment following the Charter changed the nature of the Gay, Lesbian, Bisexual and Transgender (GLBT) movement by shifting movement tactics toward litigation. Consequently, a new national legal network of GLBT groups emerged with Egale (founded in 1986) at the forefront. Second, and on a related note, the Charter and the courts helped establish “equality rights” framing which has served as a successful frame for selling SSM to Canadians. In a similar vein, Matthews argues that the Courts in the 1990s had a signalling effect on public opinion which shifted public opinion to a more favourable position on gay marriage. He argues that Canadians are more likely to accept court decisions because they are based on the Charter and equality rights, both of which have become part of the Canadian national identity.
However, institutional arrangements may “facilitate or hinder political actions, but they do not dictate their content” (Schwartz and Tatalovich 78). In the US, the Christian Coalition has successfully bundled many issues together, like gay marriage, abortion, stem-cell research and euthanasia, and have used these issues, which resonate with many conservative religious Americans, to mobilise supporters and resources. As Cahill (155) argues, the anti-gay marriage movement has become part of American political culture.
Although both Canada and the US share a culture of rights, there is much more contention surrounding the culture of rights in the US mainly from the Christian right (Schwartz and Tatalovich). The Charter created a national consensus about human rights in Canada and this has become embedded in Canada’s political culture. In turn, the culture of rights has not been contested by opponents of SSM. As Rayside states, “Canadian political culture, no matter how variegated and hard to pin down, is less permeated by religious faith and social anxiety, and seems to be creating more room for diversity in sexuality as well as in other areas(5).” Canadians appear less likely to be engaged in “moral panics” and conservative parties across Canada have not based their campaigns around moral “wedge” issues.
In both the US and Canada, two frames have been used to package SSM: equality (rights, constitution) and morality (threat to values, tradition, religion and family). Smith (2007) argues that supporters of SSM in both countries have a similar “equality rights” frame but in Canada, this frame, due mainly to institutional features like the Charter, has become part of the national identity, whereas in the US, equality rights are contested and divide both the public and elites along partisan lines. In the US, the morality frame has been very successful. In their content analysis of newspapers, Tadlock, Gordon and Popp (2007) find that the morality frame in the US was slightly more common than the equality frame. They find that anti-SSM organisations were more likely to have this frame adopted by the media because the traditional morality frame is also promoted by organisations outside the immediate conflict over SSM.
These arguments have provided important comparative insight on the nature of the legalisation of gay marriage in Canada. However, certain questions remain about the nature of public opinion, party preferences and interest organisations in facilitating or constraining opportunities for legalisation, particularly when considering the effect of issue salience and issue framing on both public and elite policy preferences.
Public Preferences and Issue Salience
Scholars of democratic politics have shown that governments tend to respond to public preferences more often than not (Monroe, 1979; 1998; Stimson et al., 1995 553-5; Brettschneider 298; Burstein 2003, 33; 2006 2280). At the same time, they have recognised that institutional features of a country may decrease opinion-policy consistency (Budge and Hofferbert 116; Brettschneider 308; Hobolt and Klemmemsen 397). Strong party discipline in Canada has insulated policy makers from public opinion (Petry and Mendelsohn 507-8; Blais et al. 49 and Smith, 2005a 226).
There are also general country-specific characteristics that influence consistency. In Canada, there has been less consistency between public preferences and policy outcomes when the Liberals are in power. Petry and Mendelsohn (513-14; Soroka and Wlesien) suggest that this is because Canadians have become more conservative while policies under the Liberal Chrétien governments have shifted to the left. For example, on sexual orientation issues, Conservatives were consistent with public opinion on the two issues they considered, compared to the Liberals who were consistent with public preferences on 12 of the 19 issues they considered (see also Bélanger and Petry 2005 on opinion-policy consistency in Canada).
Parties are most likely to act consistently with public preferences when the public cares about an issue. Burstein’s (166-7) work on antidiscrimination legislation finds not only that the passage of the Civil Rights Act coincided with favourable public opinion, but that it also coincided with periods when the public cared about civil rights. More recent work also finds that issue visibility increases congruence between public opinion and policy (Brettschneider 303; Burstein, 2003 34; Hobolt and Klemmemsen 395). Petry and Mendelsohn (506) report a much tighter correlation between opinion and policy on high-profile issues in Canada.
When an issue is salient in the media, it is more likely that the public is aware of the issue, and has meaningful opinions (Collins et al., Snyder and Kelly 106; McCarthy et al. 494; Oliver and Haney 468). The media provides information on an issue, raises salience, frames an issue in a particular way, and persuades the public (Collins et al. 90-1; McCombs and Shaw 176; Baumgartner and Jones 103; Mutz and Soss). During election campaigns, the media influences the policy agenda by disproportionately reporting on certain issues. On these more salient issues, politicians care to know their constituents’ preferences. When an issue is not salient, and the public is divided, the party in power has more leeway to pursue its own preferences, without facing negative electoral consequences.
Is a salient issue in the media also salient with the public? McCombs and Shaw (185) argue that the media is most likely the only means by which the public, which does not participate in day-to-day politics and therefore is not aware of new political developments, receives information about political events. For example, almost as many Canadians paid some attention to the Throne speech as no attention at all. A 2004 ‘Listening to Canadians’ poll conducted by the Canadian government (available through the Canadian Opinion Research Archive) found that 84 % of those surveyed heard about the content of the Throne speeches through the media (print, television and radio), versus only 7.5 % who actually read the speech or watched it being delivered.
People may not always think an issue is important while politicians, policy experts and activists expand the political rhetoric surrounding an issue (Cobb et al.; Oldendick and Bardes 369; Hill and Hinton-Anderson 925; Stimson et al., 1994). Issue salience is an important factor to consider in explaining the role of politicians, interest organisations and public opinion on issue framing and policy outcomes. If the public cares about SSM, then it is more difficult for political elites to engage in discourse outside public debate. In turn, elites would have to more seriously consider public preferences which may not be congruent with their own.
Elite Preferences: Politicians and Interest Groups
Parties and Politicians
Research shows that parties do follow through with their promises most of the time (Budge and Hofferbert 111; McDonald, et al., 1999 589; King et al., 746; Rallings; Blais et al. (55-6). However, public opinion does not always influence party emphasis on issues (Bara; McDonald et al., 852; Petry and Mendelsohn 508). Parties also respond to issues on an ideological basis which means that party policy preferences may sometimes outweigh concerns for public opinion. Elected officials often do the ‘morally correct’ thing, which may put them at odds with their constituents. For example, in response to Conservative criticism of the legalisation of gay marriage, Liberal Member of Parliament Michael Savage stated before the Legislative Committee that:
Parliament has a way, every now and then, of making enlightened decisions. I think this is one of those times. When a plebiscite in the 1980s would have shown that most Canadians wanted capital punishment, Parliament voted against bringing back capital punishment, including a majority of Conservatives because it was a majority Conservative government at that point in time.Meeting 11, 2 June 2005
If public preferences are congruent with those of the party in power, then public preferences are more likely to have some influence on policy (see Brooks on the democratic frustration model). However, parties are more likely to pursue their own preferences when the public does not strongly support either side of an issue since supporting either side does not result in an electoral gain for the politician. This means that if Canadians are divided on SSM, then there is no reason for the government to appeal to either side. This is especially true if the public also did not think legalising gay marriage was a priority. And, if the public did not care about SSM, it is doubtful that the Liberal Party would dedicate much of its platform to the issue.
In addition to public opinion, politicians may also be influenced by the preferences of organised interests. Few studies examine the impact of interest groups while also considering the role of public preferences and the preferences of politicians (Burstein, 2003 34). Interest groups sometimes influence politicians when the public is seemingly uninterested in an issue and the activities of interest groups are publicly invisible. Public debate is messy because opposing public preferences cast doubt on elite policy preferences. When an issue is not salient with the public, political elites have more control over the issue. This allows the work of both interest organisations and politicians to be framed as being in the public’s interest (Mayhew; Evans 289; see also Jacobs and Shapiro 2000 on ‘crafted talk’).
Like public opinion, interest groups are also influential when their policy preferences coincide with those of the party in power. Interest groups may work with sympathetic politicians to frame the political discourse so as to have greater influence on the issue, while directing attention away from alternative frames (Cobb et al. 128; Burstein et al.). However, organisations whose preferences are not congruent with the preferences of the government can also work to depict an issue in such a way as to cast doubt about its validity while reframing the issue so as to have more control over it.
Some frames may be held in higher esteem by both elites and the public which forces opponents to reframe their message so that their message has resonance (see Matthews on the Charter and equality frame in Canada; Dugan; see also Fetner on Christian anti-gay activism in the US). Although interest groups may influence whether a policy is enacted, they also influence political discourse by either broadening the focus of the issue, or by diverting attention to aspects of the issue over which groups have greater control.
There are different ways in which organisations influence political discourse and policy outcomes. Protest activity and demonstrations influence the public and politicians (Lohmann 321), and they sometimes get media coverage. Some studies use the number of demonstrations reported by the New York Times as a measure of organisational influence (Burstein, 1979 168; Snyder and Kelly; McCarthy et al. se also; and Oliver and Maney on the validity of newspaper data). Others use organisational characteristics such as membership size and budget (Haider-Markel 76).
The most direct way in which groups influence politicians is by providing them with relevant information. For example, sympathetic politicians may be more interested in electoral information whereas undecided politicians are more likely to want technical information (Heitshusen 160). In their study of private American corporations and foreign trade policy, Bauer, Pool and Dexter (347) find in their interviews with members of Congress that members will hear anyone who brings fresh information on an issue. Therefore, it is no surprise that interest groups spend time collecting, packaging and framing information. Wright (433) finds that the number of lobbying contacts received by a committee is a statistically significant predictor of committee voting when groups are able to gather and provide information at low costs (Hansen 13; Leyden 433). Although politicians in Canada are less susceptible to interest group influence, interest organisations still provide policy information and help frame and package the issue.
Interest groups and politicians, both in favour of and opposed to an issue, expand political discourse outside of public debate. In the case of SSM, this would be advantageous for political elites particularly if elite preferences diverge from those of the public. At the same time, when the work of political elites, including interest organisations both for and against legalisation, is invisible to the public, and if the public is uninterested in the issue, elites have greater control over issue framing and policy outcomes.
In order to ascertain whether the public was divided over the legalisation of SSM, I used monthly public opinion polls from November 2002 to July 2005 (see Appendix, Table AIII for public opinion sources). Monthly polls provided an overall sense of public preferences on gay marriage. Unfortunately, monthly poll questions were not identical. I reported both the percentage in favour and opposed to SSM to show consistency in responses to poll questions over time. Other public opinion data on SSM, including data from the 1990s, was obtained from the online database of the Canadian Opinion Research Archive, Queen’s University.
Issue Salience and Media Attention
Public opinion matters more when an issue is salient. Like Burstein (2006 2277), I used a ‘most important problem’ question which gauges the saliency of SSM with the public at the time of the 2004 election. In order to measure issue salience in the media, I used a monthly count of national newspaper articles from the Globe and Mail for the period of December 2002 to July 2005. The articles selected were either primarily about gay marriage or discussed gay marriage in a secondary way. Articles about gay issues that did not include discussion of gay marriage were not counted.
Politicians make promises in their platforms. Issues covered in the platform reflect public preferences as well as party ideology. I analysed the June 2004 Liberal and Conservative party platforms as well as two Throne speeches where the government’s legislative priorities are outlined; one made prior to the election, and the other made after the election by the Liberal Party (see Paddock, Budge and Hofferbert, and Hobolt and Klemmemsem 386 on coding ‘Queen’s Speeches’). I ranked the issues on two dimensions: their position within the documents and the number of pages dedicated to these domains. If an issue covered only part of the following page, the number of pages dedicated to that issue was rounded up to the nearest whole number.
Measuring the Impact of Interest Groups
Organisations may also influence political discourse and policy outcomes. They also frame issues so as to benefit their cause. The most direct way to obtain a sense of the role of interest groups is to examine their testimony before Parliamentary Committees. Witnesses testified before two committees: the Standing Committee on Justice and Human Rights (December 2002-April 2003) and the Legislative Committee on Bill C-38 (May-June 2005). Standing Committees are permanent committees and receive their mandate either from Standing Orders, by an Order of Reference from the House, or from legislation. The committee then reports any recommendations or findings to the House of Commons. Legislative Committees examine particular bills and provide recommendations on technical aspects of the bill and on ways to improve the clarity of the language of the legislation. The Legislative Committee convened after the House had already voted on the SSM bill twice. This means that the committee only had the power to report on the bill, with or without amendments. The Legislative Committee does not make recommendations as to whether the legislation should be enacted. The composition of the committee roughly reflects the composition of the House of Commons. Witnesses are proposed by committee members, though individuals and organisations may express an interest in appearing before the committee. The committee makes the final decision on the witness list. Usually, witnesses make a statement and then are questioned by committee members (for more information on committee proceedings, see Marleau and Montpetit).
The Standing Committee held 62 meetings, and the Legislative Committee held 21 meetings. I analysed the evidence (the corrected transcription of the meeting) for each meeting where witnesses testified. On rare occasions, the same organisation or individual provided testimony before the same committee on two separate occasions. In addition, and this is particularly true for the Standing Committee which held meetings across Canada, organisational chapters testified on behalf of the national organisation. I counted chapters as separate observations, but if the same witness appeared twice, I counted this as one observation. Coalitions also testify before committees. In their statements, individuals representing a coalition list the organisations that belong to this coalition. I considered coalitions as one count, since the committee identifies the coalition as one witness. This avoids double counting organisations because those organisations mentioned in the testimony by the witness representing a coalition may also testify separately before the committee in a different meeting. I coded organisational type based on their introductory statements, where they state the name of their organisation, their purpose and, often, the constituency they are representing. I coded individuals’ testimony using the same method.
In order to measure the ability of organisations to influence the course of the debate on SSM, I used both testimony and media statements issued by organisations (found in Canada Newswire, www.newswire.ca). For each organisation that testified and released a media statement, I coded their content across five categories: legal and technical aspects of bill C-38; government accountability, the Charter of Rights and Freedoms and Supreme Court decisions; harm to marriage, children and the traditional definition of marriage; religious freedom and threats to the status of religious groups as charitable organisations; and rights/gay rights.
My findings suggest the presence of two important conditions which facilitated the legalisation of SSM. First, although Canadians were more against than they were in favour of gay marriage, overall, they remained divided even when the act was passed in June 2005. Unlike elites however, the public was largely uninterested in the issue; a point that is often ignored in studies explaining Canadian public opinion about SSM. In addition, SSM was not especially salient in the media. Second, more than half of the organisations that testified before Parliamentary Committees were not in favour of legalising SSM. This suggests that the countermovement in Canada, weaker and less successful than its American counterpart, was still quite active in this period. They were, however, unsuccessful at altering the rights-based framing that has surrounded gay marriage to frames that conservative organisations control, such as ‘harm to family and children.’
I first demonstrated the public’s division on the issue as well as provided evidence for the lack of salience gay marriage had with the public. I then showed that the Liberal Party, though aggressive in pursuing legalisation, did not discuss SSM in its platform or speeches to the Throne, while the Conservative Party’s platform did address the issue. I then provided evidence for the extent to which gay marriage had salience among elites in that the government heard an unusual number of witnesses, and I also found that a large share of the groups providing testimony were against SSM. Finally, I showed that although organisations against gay marriage did attempt to change the focus of SSM away from a rights-based frame, they were unsuccessful in doing so. These conditions facilitated the legalisation of gay marriage.
Public Preferences and Issue Salience
Gay marriage polls conducted by CROP, Inc. in the early and mid-1990s found that most Canadians were not in favour of same-sex marriage. In 1992, 35.8 % of Canadians totally or somewhat agreed with the question, ‘Society should regard people of the same sex who live together as being the same as a married couple.’ In 1993, 37.3 % agreed with this; 35 % in 1994, 37.7 % in 1995, and 40 % in 1996. On average between November 2002 and July 2005, 47.3 % of Canadians supported SSM while 43.3 % were opposed. At the time of the enactment of Bill C-38, 46 % of Canadians supported gay marriage, while 51 % opposed the legislation (see Figure I). This appears to support Matthew’s assessment of Canadian public opinion in the 1990s. However, public opinion stalled in the years preceding the Civil Marriage Act. A better characterisation of available public opinion data is that the public remained divided on the issue.
Comparatively, Canadians are more supportive of gay marriage than Americans but not as supportive as Europeans. A 1996 Gallop Poll found that 68 % of Americans opposed gay marriage and 27 % favoured it. A more recent poll by Gallop (May 2006) found that 58 % of Americans opposed SSM while 38 % supported it. According to a December 2006 Eurobarometer poll, the average percentage of Europeans who favour SSM is 44 % with thirteen European countries reporting numbers higher than 44 %. When Spain legalised gay marriage, approximately 62 % of the public was in favour of legalisation (Spanish Parliament, 2005). Compared to many European countries, Canadian support for gay marriage was considerably lower.
An often overlooked aspect of Canadian attitudes is the saliency of the issue on which they are reporting their opinion. Canadians did not think SSM was an important issue. The pre-election poll shows that gay marriage ranked sixteenth on a list of important issues facing the country (see Table I). Canadians thought health, the environment, government accountability and international relations were the most important issues facing the country. In June 2004, media attention was quite low suggesting that a majority of Canadians were not exposed to the issue of SSM. Issue salience with the public coincides with the saliency of the issue in the media.
Media coverage data shows three peaks (see Figure II), none of which are surprising. The June 2003 peak corresponds with the Ontario Court decision. The second peak in December 2004 corresponds to the Canadian Supreme Court decision. Finally, the third peak in June-July 2005 corresponds to the enactment of the Civil Marriage Act. Of note is the lack of saliency for over a year between October 2003 and December 2004. The issue was barely covered in June 2004, the election month.
Though the public was divided on SSM, once the bill was passed, 55 % of Canadians considered the issue settled (Same-sex marriage bill must stand, 2005). A more recent 2006 Environics poll reports that 62 % of Canadians consider the issue of SSM closed. The Liberals had reason to pursue their own policy preference, since trends in public opinion in the 1990s showed a shift towards a more favourable view of gay marriage, while later, provincial courts ruled favourably on SSM. Despite divisions within the Liberal party over gay marriage, the Liberals had the support of two opposition parties. The legislation passed with 158 votes in favour and 133 against.
Liberal Party elites, including the Prime Minister, Justice Minister and Foreign Affairs Minister pressed for SSM legislation. The Liberals even ensured that the parliamentary session was extended so that a vote could be called on the bill. Although Liberal Party elites pursued the legalisation of gay marriage, there is no mention of gay marriage in either the 2004 election platform or in Throne speeches, which outline legislative priorities. Even though the Conservatives attempted to frame the Liberal pursuit of SSM as incongruent with public preferences, the issue focus in Liberal Party documents closely followed the issues the public found important, which did not include gay marriage.
There are four broad areas covered in the speeches and platform: government accountability, the economy, foreign affairs and social foundations. Healthcare and the environment are also important domains within these documents, but not necessarily separate sections, nor always embedded within the same broader domain (e.g., the environment was a subsection of the economy in the pre-election Throne speech, but a subpart of social foundations in the 2004 platform and the post-election speech). I found that, overall, government accountability, the economy and healthcare consistently ranked highly, and foreign policy consistently ranked the lowest (see Tables II and III). This closely approximates the pre-election poll which asked Canadians about the most important issue facing Canada.
Parties also emphasise particular issues to increase their salience with the electorate. It is in the party’s interest to focus on issues where the party’s policy record is positive while diverting attention away from a less favourable policy record (Budge and Hofferbert 114). Since the Liberal Party was undergoing an investigation for misappropriation of public funds which concerned the public, Conservatives attempted to use government accountability to frame legalisation of gay marriage. In fact, the Conservatives spent more time discussing SSM than the Liberals. This may explain Merolla’s et al. (12) finding that only the Conservative Party’s treatment of gay marriage is correctly cued for voters.
Although the Liberals were undergoing an investigation and had a minority government, they also had some degree of electoral safety. An NFO CF Group Poll (August 2003) found that a slight majority (51 %) of Canadians who identified with the Liberal Party supported SSM as opposed to 44 % of those who identified with the Conservatives and 37 % with the Canadian Alliance. A January 2005 poll conducted by Ipsos found that 71 % of Canadians did not think that a federal election should be fought over SSM. If an election were to be called, voters would choose the Liberals (41 %) over the Conservatives (29 %) given the parties’ positions on SSM. In addition, after the legislation was passed and throughout the summer months and into the autumn of 2005, the Liberals retained a comfortable lead in the polls.
The Liberal Party had a favourable position on SSM since 2003, although the party did not clearly convey this position in its documents, including its 2004 electoral platform. Despite the Conservative framing of gay marriage, the Liberal Party continued to focus on other issues that were more salient to the Canadian public.
Although gay marriage was not salient with the public, it did matter to political elites. The Standing Committee on Justice and Human Rights heard 252 different witnesses. No other study by the Standing Committee in the second session of the thirty-seventh Parliament came close to hearing that many witnesses (the next highest number is 26. See Figure III). This suggests that politicians and interest groups did care about SSM. In comparison with other studies, the Standing Committee’s study of same-sex unions also heard an unusually high proportion of individual witnesses not representing an organisation. The Legislative Committee on Bill C-38 heard 53 witnesses. Similar to the Standing Committee, the Legislative Committee on Bill C-38 heard more witnesses in comparison with other Legislative Committees over the last seven years (see figure IV). Again, the committee heard a high proportion of individual witnesses compared to other Legislative Committees.
Although there were more committee members sympathetic to gay marriage, the committees did not hear more organisations in favour of legalisation. Only 40 to 50 % of the organisations that testified before committees supported SSM. Only 37 % of those organisations testifying before both committees supported legalisation. Individual witnesses testified in favour of legalisation more often than organisations.
Fifty-eight % of all witnesses who testified before the Standing Committee supported same-sex unions. Only 44 % of witnesses testifying before both committees supported SSM, and only 34 % of witnesses testifying before the Legislative Committee supported SSM (see Appendix, Tables AI and AII). Only 27 witnesses appeared before both committees, and in large part testified against Bill C-38.
Religious organisations were overall the most numerous. Of those organisations that testified before the Standing Committee, 36 % were religious, and half of the organisations that testified before the Legislative Committee were religious. Among those organisations that testified before both committees, half were religious. This suggests that like the US, there is a strong religious component to the anti-gay marriage movement. Only 26 % of organisations that testified before the Standing Committee were rights or gay-rights based organisations (6 % among those that testified before the Legislative Committee and 10 % among those organisations that testified before both committees). Despite the large number of witnesses, a very small fraction of those witnesses supporting the legalisation of gay marriage were gay rights organisations. Because of favourable political opportunities in Canada, and lack of sustained countermovement challenges, the GLBT movement remains smaller, more regional, and has not become institutionalised as has been the case in the US.
The decomposition of organisations into categories revealed the relationship between organisational type and position on SSM. This ‘policy community’ of which interest groups are part (see Baumgartner and Jones 175) had a varied composition; with groups ranging from professional organisations, to labour unions, to gay rights groups. However, religious groups tended to be the most represented. It is not a surprise then that a large proportion of witnesses (and a majority in the Legislative Committee) testified against SSM when 70 to 76 % of religious organisations were opposed to SSM.
Among those organisations that provided statements to the media, 48 % testified before the Standing Committee on Justice and Human Rights. Only 40 % of organisations that released media statements testified before the Legislative Committee on Bill C-38 and only 24 % of these organisations testified before both committees. In all three cases, a majority of organisations (between 55 % and 63 %) supported SSM. Not surprisingly, religious organisations formed much of the opposition. However, it is important to note that religious organisations (both in favour and opposed to SSM) represent 58 % of organisations that provided statements to the media and testified before both committees.
I identified twelve core organisations (see Table IV). These are ‘highly involved’ organisations that testified before the Standing Committee in 2002-2003, the Legislative Committee on Bill C-38 in 2005, and also provided a statement to the media between May 2003 and June 2005. It is not surprising that 50 % of these organisations are religious in nature, with five of the six opposed to SSM. Of the twelve organisations, five are opposed to SSM.
Elite Preferences and Issue Framing
The committees heard a considerable amount of testimony against gay marriage (see Larocque for discussion of select testimony). However, groups opposed to legalisation were unsuccessful in altering the framing of gay marriage as a Charter right. In Canada, groups opposed to gay marriage have had to engage supportive groups and political elites using a rights-based, Charter provision and legal frame. This frame dominated the SSM debate first and anti-gay marriage elites have had to respond within the constraints of this frame. The framing of SSM in committee hearings is congruent with the equality rights framing strategy that emerged alongside the increased use of litigation by the GLBT movement (Smith, 2005a; 2005b; 2007).
Since Prime Minister Trudeau, the Liberal Party has portrayed itself as a defender of the equality provisions in the Charter. Therefore, it is not surprising that Liberal Party elites framed their pursuit of gay marriage legislation in terms of the Charter and equality rights. This frame resonates with the public. The Canadian public holds the courts and the Charter in high esteem (Matthews, Smith, 2007) adding appeal to this framing strategy for both politicians and interest groups.
In the US however, pro-gay marriage groups have engaged conservative groups using a ‘pro-family’ or morality frame, which has dominated the issue of gay marriage. The SSM debate in the US is predominately framed in terms of family, religion, values and morals. Segura (190) describes opposition to SSM in the US as being about ‘moral judgments and bias.’ Family values have come to shape this dialogue where gay and lesbian rights organisations have appropriated a ‘pro-families pluralistic agenda’ (Broad et al. 510). In other words, this family frame arose as a response to the Christian anti-gay countermovement (Fetner 412).
I found that organisations that released media statements and testified before both committees framed the issue in terms of the Charter and the courts (see Table V). Those organisations opposed to SSM preferred a ‘religious freedom’ frame, not a traditional morality frame. Religious freedom refers to a belief that changing the traditional definition of marriage would violate the freedoms of religious denominations to marry whom they see fit. Only about 19 % of the statements and testimony I coded involved a primarily ‘harm to marriage and children’ frame. This suggests that the frame which has been so successful with American anti-gay organisations has neither resonated with the Canadian public nor with political elites.
Gay marriage in Canada had already been framed in terms of equality provisions in the Charter by political elites and this frame has popular appeal. Organisations opposed to SSM have not successfully countered this frame. Rather, opponents in Canada have had to deal with this established frame. Elites opposed to gay marriage have employed a strategy of rights and freedoms themselves, more so than one of morality, marriage, family and children. Having to engage pro-gay marriage proponents on their terms has been a less than ideal situation for anti-gay marriage elites.
Throughout the 1990s, public support for SSM slowly increased. In the two years preceding the legalisation of gay marriage, Canadians were divided on the issue. However, gay marriage was not a salient issue for Canadians. Liberal Party elites pursued legalisation, while keeping the issue low key in its platform and speeches. At the same time, committee hearings showed an unusually large number of witnesses testifying on SSM. This suggests that politicians and interest groups cared about the legalisation of gay marriage. In Canada, SSM was salient among politicians and organised interests. It was not especially salient with the public. This allowed politicians and other supportive elites to pursue the legalisation of gay marriage with relatively little negative electoral repercussions. Discourse surrounding SSM remained focused on rights provisions in the Canadian Charter as well as in the court decisions. I did not find that organisations opposed to SSM were successful in altering this frame.
Throughout the 1990s, governments and courts across Canada recognised discrimination towards gays and lesbians. As Smith explains, “‘in contrast [to the US], court rulings in the three most populous provinces as well as the Supreme Court of Canada, have led to proposed federal legislation legalising same-sex marriage.” (2005a 225) Canadians have become more liberal towards gay rights. Matthews (847) argues that court decisions throughout the 1990s helped sway public opinion. Matthews claims, that “Canadian public opinion moved markedly on the issue of same-sex marriage.” (841) But, it is also important to note that Canadians were mostly divided on the issue when the Civil Marriage Act was passed and that, despite their opinion, were not especially interested in SSM.
By the early 1990s, when the Liberals formed the government, SSM had increasingly become an issue of political interest. However, the party had taken a position that defended the traditional definition of marriage. The party changed, and formalised its position, when it decided not to appeal lower court decisions. Rather than being a case of the Supreme Court legislating from the bench, SSM in Canada is a case of the government using the Court to pursue its policy preferences.
Many Conservatives saw the Civil Marriage Act as imposed by the Liberal government and a product of ‘special interests’ and the Supreme Court. Ted Morton, a professor of political science, testified before the Legislative Committee stating that:
In Canada, the idea that homosexual marriage is a right is an interest group, judge-made affair from start to finish, and even this is new. As recently as 1995, the Supreme Court, with a different configuration of judges, recognised the complete legitimacy of traditional marriage.Meeting 14, 7 June 2005
In broad terms, institutional, cultural and framing features specific to Canada help explain the Civil Marriage Act. More specifically, the confluence of politicians, interest organisations, public opinion and issue salience created conditions which allowed for the legalisation of gay marriage. Politicians were able to pursue the legislation without facing negative electoral repercussions. Politicians and interest groups engaged in an ongoing political discourse over the legislation while the public remained uninterested in the issue. Despite the discourse outside public interest, organisations opposed to gay marriage were unsuccessful in shifting focus away from equality and the Charter to issues which they control, like morality and harm to children.
The legalisation of gay marriage serves to differentiate Canadian political culture from its neighbour to the South. In fact, in 2002, Bill Graham, the foreign affairs minister, publically supported gay marriage stating that it differentiates Canadians from Americans and that in the future, the US would reach the same conclusion as Canada (Larocque 83). The politics surrounding SSM in Canada have obviously led to outcomes different from those in the US. This has been at the heart of comparative work on SSM. Both countries have active gay-rights movements, they have a substantial proportion of the population that does not favour gay marriage (although more so in the US), and they have elites, albeit with different levels of political clout, that do not support SSM. Like the US, anti-gay marriage elites in Canada have tried to split the Liberal Party but gay marriage has not been a successful ‘wedge issue’ in Canada.
Comparative work has come to a consensus on the broad institutional and political cultural differences between Canada and the US that explain policy outcomes. But, there are also specific differences between the two countries that are worth noting. These differences are important in understanding the passage of the Civil Marriage Act in Canada. Firstly, gay marriage has not been especially salient with the Canadian public, although it was salient with political elites. Secondly, unlike the US, anti-gay marriage proponents have had to engage pro-gay marriage proponents under the dominant frame of Charter rights and the courts. Anti-gay marriage proponents have not been especially successful in altering this frame to something they can more easily control, like a ‘profamilies’ frame. Finally, and perhaps, most importantly, unlike the movement in the US, the movement in Canada had the support of institutional activists and powerful political elites, like the Prime Minister and Justice Minister, who pushed for SSM legislation and ensured its enactment. Without these supportive insiders, it is doubtful that gay marriage would have been legalised in 2005.
Direct all correspondence to David Pettinicchio, Department of Sociology, University of Washington, Seattle,WA, 98195 (email@example.com). I would like to thank Jon Agnone, Paul Burstein, Katie Corcoran, Edgar Kiser, Debra Minkoff, Steven Pfaff, Suzanne Staggenborg and David Weakliem for their helpful suggestions and advice. A version of this paper was presented at the American Sociological Association Meeting in Montreal, Canada, 2006. I would like to thank panel and audience members for their comments. I would also like to thank reviewers for their suggestions.
The Civil Marriage Act was introduced as bill C-38 in the House of Commons in February 2005.
The Supreme Court Act allows the Canadian government to refer constitutional questions to the Supreme Court.
Question 4 refers to the question the Liberal government sent to the Court asking if the traditional definition of marriage is constitutional.
The Liberals won less than half the seats in Parliament. Minority governments often weaken a party’s ability to govern, particularly because the party is constantly faced with a vote of confidence. If the party loses the vote, an election is called. The winning party in a minority government is more likely to seek alliances with other parties to secure needed votes in the House to ensure support for government initiatives. Sometimes, minority governments are seen as signs of a lack of a clear mandate to govern (Goot).
Throne speeches are given at the beginning of a parliamentary session by the prime minister. The speech outlines the government’s agenda for the parliamentary session.
I coded organisations’ introductory statements. Usually, a transcript of this statement is sent to the committee before they testify. I did not code responses by witnesses to committee members’ questions because responses proved to be too heavily influenced by committee members’ preferences, and not those of the actual organisation.
The Canadian Alliance was a conservative party from 2000 to 2003.
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