Once the insider coup transition of power was complete, Paul Martin delayed the response from the Supreme Court by adding a fourth question to the reference. The motive, quite transparently, was to push the issue off the front pages (except inasmuch as he could use it to hit Harper and the Conservatives who don't know when to chug a nice frosty mug of STFU upside the head) until past the federal election, so that everyone could conveniently forget that he and the Liberals voted against same-sex marriage in a party-line vote in 1999, and that there were still some antediluvian so-cons in the rural Ontario Liberal caucus that voted against it in 2003. The fourth question:

4.Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

Let's summarize what they basically boil down to:

1. Is the definition of marriage intra vires the federal government?
2. Can we allow same-sex marriage?
3. If we do, do people performing marriages have the option to say they won't perform same-sex marriages?
4. Do we have to allow same-sex marriage?

The first question's pretty straightforward, and is really there as a way to beat recalcitrant provinces (can anyone say Alberta?) upside the head with the fact that it's the federal government's call what marriage is. Given that the feds have been defining what can and can't be a valid marriage since at least the 1870s, most notably on consanguinity, any reasonable person would guess that the answer will be "yes" to s. 1 of the act (defining marriage).

It gets a bit trickier on s. 2 (marriage officiants etc.), but a pretty good guess is that the answer would be "this is handled by the Charter's guarantees of religious freedom", if you get the Supremes in a mood where they're favouring that over some ill-begotten balancing test for people acting for the state in performing ceremonies. Another good guess would be to remember your federal / provincial division of powers and note that while the definition of marriage is federal, all the formalities are provincial — which means that the provinces are the ones that set out who gets to perform marriages (as discussed in the previous post). Under this theory, the answer is "no, it's exclusively provincial". As a read-the-damn text kind of guy, I was rooting for this answer.

Question 2 is a gimme. The Charter sets minimum standards; it doesn't set maximums. There's nothing preventing you from extending rights that aren't guaranteed by the Charter, provided you do it even-handedly. Even if same-sex marriage isn't required by the Charter, there's no reason why the Charter would prevent you from permitting it. It's stupid to even ask.

Next up, we get directly to the question of whether priests etc. would be obliged to perform same-sex marriages. Given the existence of civil officiants who might well be expected to perform them, there's no reason to believe that a couple that wants to marry wouldn't be able to find someone. You'd have to do a lot of convincing to get the Supremes to set aside the religious interests in not being compelled to do something you think is wrong against the interests of the couple in being married in a particular manner: the smart money's on the Supremes holding that the Charter's religious rights guarantees mean that no religious official is obliged to perform same-sex marriages.

Last, the feds asked "can we keep the opposite-sex requirement?", begging the Supremes to say "no, the Charter requires same-sex marriage" in order to give them the political cover to force it through Parliament and get their own recondite backbenchers (Pat O'Brien [news story], Tom Wappel, John McKay [news tory], and maybe David Kilgour [news story], I'm looking at you) to either line up in favour or walk the plank à la Carolyn Parrish for disloyalty to the party (if, perhaps, not repeated obnoxiousness above and beyond the call of duty). This one was a wild guess as to what the Supremes would say, and I certainly wouldn't've bet either way on it.

Next time: what the Supremes answered.