Same-sex marriage beyond charter dialogue: Charter cases and contestation within government

In this article, I argue that the dialogue debate has obscured a much richer story that can be told about Halpern v Canada, same-sex marriage, and the complex relationship between courts and legislatures. The federal government was deeply divided on same-sex marriage. Parliament, the Liberal government, the federal Cabinet, and the liberal caucus were all deeply divided. From the outside, it may have appeared as a ‘courts versus government’ battle, with the federal government defending the opposite-sex definition of marriage right up until the Ontario Court of Appeal struck it down as unconstitutional in Halpern. But a closer look shows that the federal government’s about-face after Halpern had been in the making for years, with supporters trying to use court decisions as well as changing public opinion to wedge open the marriage issue. The same-sex marriage case study can be retold as a story not of dialogue between courts and Parliament but, rather, as a contestation within government. I argue that this story – of conflict and contestation within government and the use of court decisions by proponents of same-sex marriage – can provide a richer account of the evolution of the federal government and the adoption of the Civil Marriage Act.