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.

Some Parents Say a $5 Gift Is Not Enough for Teachers

By SUSAN SAULNY

Published: December 24, 2004

...Avoiding dilemmas... was one of the goals of a new $5-per-student spending limit for holiday gifts to teachers, a regulation imposed by Schools Chancellor Joel I. Klein imposed early in 2004. But across the city yesterday, parents and students were giving whatever they wanted, largely ignoring the new standard.

The spending rule falls under the conflict-of-interest section of the chancellor's regulations, and was intended to help students who could not afford to contribute money to class gifts, officials said. The regulations also state that individual gifts from students or parents to school employees should be "principally sentimental in nature and of insignificant financial value."

Many parents disregarded the rule with a clear sense of purpose, even pride.

"What can you get for five dollars?" said Joe Leon, who has a daughter in third grade at P.S. 20 on the Lower East Side. "Not much. A bag of chips. Anything that's decent will cost at least $10."...

Much like the US Constitution, the BNA '67 provides a list of exclusively federal powers (in part VI, s. 91). It also has a list of exclusively provincial powers (s. 92), but unlike the US, provinces only have those powers explicitly granted to them --- the residue is federal. Unsurprisingly, provinces can't legislate on matters of federal competence and nor can Parliament legislate on matters of provincial competence. Now here's the catch: s. 91(26) of BNA '67 lists "Marriage and divorce" as being exclusively federal, but s. 92(12) makes "The Solemnization of Marriage in the Province" exclusively provincial.

In practice, this distinction works like this: the feds get to say who can marry who (see, for example, Marriages (Prohibited Degrees) Act, (1990, C.46) or any of a long line of previous acts, now-repealed, on the subject) while the provinces deal with stuff like the details of the marriage ceremony, how marriages need to be registered, and who gets to perform a marriage (see, for example, Alberta's Marriage Act, M-5 RSA 2000, but ignore s. 2 since we'll talk about that in a future post).

Now we come to the Charter: it's sort of the Canadian equivalent to the US Bill of Rights. For our purposes, there are three interesting provisions: s. 1 (reasonable limits), s. 15(1) (equality rights), and s. 33 (notwithstanding clause).

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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.

Section 15(1) is how people seeking the recognition of same-sex marriage as a right have been challenging the traditional definition of marriage (which we'll come to later). The basic premise is that opposite-sex marriage doesn't provide equal benefit of the law, and that sexual orientation is a category analogous to those outlined in the section. Based on the provincial superior and appeals court decisions so far, it's a winner, and section 1's reasonable limits clause doesn't override section 15(1)'s equality interests. But hang on a sec, there's a catch:

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

33 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

As part of the deal to constitutionalize rights in the '82 Constitution Act, the provinces extracted a pound of flesh from the Feds. They (and the Feds) are allowed to temporarily suspend section 2 or sections 7 through 15 of the Charter for up to five years. Which means that a government determined to prevent same-sex marriage could, regardless of what the courts say about what the constitution requires, prevent them from happening (well, for five years; at the end of that time, they'd need to re-enact the notwithstanding clause, invoking s. 33, in the relevant unconstitutional legislation). Unsurprisingly, this is what the more radical social conservative groups are pressuring governments to do (and we'll chat about why the Alberta government, in particular, is on crack later on in this series).

The take-away point from this post: the question of whether to legalize same-sex marriage, or perhaps conversely, delegalize it, depending on which province you're in, is really a political question. The courts have (mostly) spoken, but the political actors still hold the trump card, if they want to use it, to make the result come out however they want.

Alright. So we've now got the Constitution stuff out of the way, for this post at least. Next up, something that may be unfamiliar to our American readers: Supreme Court references.

Unlike the US Supreme Court, which only has jurisdiction in actual cases & controversies (see Findlaw's annotations for an interesting discussion of this), the Supreme Court of Canada can be asked by the federal government to give an advisory opinion (under s. 53 of the Supreme Court Act, R.S. S-26) on any legal question, such as determining whether a power is federal or provincial, or whether a piece of proposed legislation would be constitutional. (The provinces also have this ability, but they ask their provincial courts of appeal instead.) These reference cases are rare but very important --- notable cases include the constitutionality of Parliament asking the UK to repatriate the Canadian constitution without provincial consent (1981); whether and how Québec could secede (Reference Re Secession of Quebec; and, of course, the legality of same-sex marriage (Reference Re Same-Sex Marriage).

With the stage set, the next post will go through the questions that the federal government asked the Supremes to answer, and go through the Supremes' answers....

Standard disclaimer: I'm not a lawyer. I'm not even a law student. I just spend entirely too much time around them, and read SCC and SCOTUS opinions for fun. As always, PoI welcomes correspondence and correspondents, details at top left.

Editorial note: this post & series have been in the works for the past week. They've been delayed somewhat due to the Christmas rush, etc. Check back periodically for the next exciting episode.

The government for decades has banned using cell phones and other devices that deliberately emit radio signals on U.S. commercial flights, a precaution against potentially dangerous interference with a plane's communications and electronics.

The rules have made airline cabins one of the last bastions of cell phone freedom. However, new technology and demand from electronically connected consumers means that in a few years, passengers could be flying the chatty skies.

Most airlines allow cell phone use when a plane is on the ground or at an airport gate. Except for illegal wireless calls some passengers make at low altitudes, air-to-ground communications are restricted to unpopular seat-back handsets charging $1.99 per minute or more...

(Side comment -- does anybody actually use those $2/minute telephones?)

Apparently, I'm not alone in my concern about "super-annoying fellow passengers". Hundreds of consumers immediately contacted the FCC to complain about this recent decision:

[Some] suggested that if the ban is lifted and wireless service is allowed on board, the airlines should separate those who want to use their phones behind a partition.

Another person worried that the airlines could start charging a premium to passengers who want a flight that does not allow the use of mobile phones.

It must be said that unless we're close to takeoff or landing, it's actually pretty difficult to use a cellphone in a plane. Once we reach a cruising altitude (usually over 10,000 feet), cellphones usually do not work. We're just too far from the cellular towers. While there could be innovative technical solutions around this issue (e.g using satellites), the costs may be prohibitive.

Still, this bit of news raises some interesting policy issues. Currently, both the FCC and the Federal Aviation Administration have regulations about cellphones in planes. What role should the FCC and the FAA take regarding passenger telecommunications? Is there redundancy in regulatory regimes? Or should both agencies continue to regulate this usage? Could the next step be an on-board wireless Internet connection?

Anyway, in the case of airplanes, perhaps the FCC should continue to whip out some regulatin' goodness. We could consider banning:

• Bad airplane food;
  
• Way way way too perky flight attendants;
  
• Ridiculously-priced airport chocolate bars;
  
• Terrible in-flight magazines.
  

But one can always dream.

(The quotation used in the title of this post is credited to that well-known role model, Naomi Campbell.)

Trotted out against PR is the specious and bizarre worry about "backroom deals" or something (yes, alas, it is Chris himself who told me this!), as though this doesn't already happen in spades in FPTP. Thing is, however, no one is forcing you to vote for a party that behaves that way. If you don't like it, you can form your own! And you have a very good chance of seeing yourself represented by it! In fact, if you're really so addicted to regional parties, you can even vote for a regional party under pure PR. But, delicious irony (mmm...irony), anyone can vote for your regional party. Imagine, the BQ suddenly discovering that some of its seats depend on votes from BC... (This may even have happened if PR had existed in the last federal election.)

And thus, my friends, we come to the crux of the matter. FPTP is flawed because it submerges minority interests in a very tenuous sense of regional solidarity. If people with severe problem X are spread thinly throughout the country, they never have the power to influence legislature. It is clearly set up under the expectation that those who need to be represented are large landholders; then it is a lot more obvious that representation by region makes sense. It seems reasonable that people whose major interest is their land and the rents they collect from it should share interests by region.

But these days, a lot more people vote than major landholders/real estate rentiers---in whose number I do not count the owners of small and medium-sized single family homes, among others, who make up the bulk of the middle class. The interests of most people these days is far more likely to be tied to their economic situation. Among others, the poor in one area have far more in common with the poor in another area than they do with the rich who live in the same area. And that is only one extreme example!

So here we come to my simple, brilliant proposal: a compromise between PR and FPTP that leaves the defining feature of FPTP intact---that feature being representation by constituency. This proposal: representation by economic status. Economic status meaning total wealth, or income. I haven't decided which, but it doesn't matter for the sake of this argument; let us take income for the rest of this discussion. We simple divide up the income scale into percentile-like brackets, say, 300 of them with an equal number of voters in each bracket. And we assign each one of these brackets a seat in the House of Commons. Then voters in each bracket will vote for an income-bracket representative! That way, everyone's major political interest---their economic situation---is far more properly represented than a residence-based system of representation. And we still have voters represented by single individuals, so that my friends on this blog can sit back and sigh, "Ahhhh, we are represented by a SINGLE PERSON! That feels gooood!" (What pleasure organ is activated by this sense, I still cannot imagine.)

Of course, I still far prefer some PR variant, since this system also submerges all kinds of other possible common interests that people may perceive for themselves---while PR allows all kinds of interests, including regional ones. But it is still far, far better, and much less arbitrary, than the FPTP system we are saddled with today. So anyone willing to take me up on my Modest Proposal? Somehow, I think not. And I think that this is telling.

Some pundits are calling Mr. Kerik on his bluff. They claim that the "surprise illegal nanny" excuse is the political equivalent of "I'm retiring to spend more time with my family." (Riiiight.) Mr. Kerik has been under intense scruitiny over the past couple of weeks, due to his links with the stun-gun company Taser, and due to his misuse of NYPD resources a couple of years back. Mickey Kaus of Slate rants that the nanny excuse is just a smokescreen, noting that "Every public figure should keep at least one illegal housekeeper around, just in case!" Heh.

Indeed, Mr. Kerik isn't the first presidential-appointment who had to withdraw due to a "nanny situation". Three Clinton-era appointments, including Mr. Clinton's first choice as Attorney General, were also thrown off the tracks due to a nanny problem. Which raises the following questions:

• Shouldn't Mr. Kerik have checked the credentials of the nanny in the first place?
• Or is that too much to ask? When's the last time that you did a background check on your babysitter?
• What does hiring an illegal nanny have to do with Mr. Kerik's ability to run the Department of Homeland Security? (Although, I'm on board with Fred Kaplan's assessment on Slate, noting that Mr. Kerik is probably not that capable.)
• What does it say about the West when its politicians hire quasi-illegal housekeepers?

The nanny situation does reflect the need for change for US immigration policy. The latest (11/12/04) issue of The Economist notes that "...no subject under the sun -- not even abortion -- divides the American right quite as viciously as immigration." There are usually two main camps -- "restrictionists" who want to close off the border and force sterner treatment for illegal immigrants, and "liberalizers" (including Mr. Bush and Senator McCain) who want to come to face with economic reality and regularize the current situation:

The status quo has always been economic nonsense. Large chunks of the American economy are dependent on illegal immigrants: they supposedly account for three in four agricultural workers at some times of the year. But since September 11th immigration has been a threat to national security as well. Millions of migrants currently live in a shadow world where the government cannot trace them.

So, while it's a little comical, Mr. Kerik's nanny situation belies a greater concern for the Bush Administration. If Mr. Bush is so eager to "spend his political capital" this term, he should find a way to get any immigration bill through a split Congress.

Anyway, good on her. I'd like to offer my heartfelt congratulations on her newfound acting career. It's not as if she should be doing something more productive (like, say, lipping off at her former party, pontificating on US cable networks, or stomping on plastic Bush dolls).

(Question 2: I know, she's kicked out of caucus and all, but doesn't Ms. Parrish still have a real job? Like, I dunno, maybe representing her constituents or something?)

(Question 3: What do people normally do with a plastic George Bush doll? Give it to their kids? Bring it with their teddy bear to bed?)

Note that Ms. Parrish is not the first washed up politician to appear on Train 48. Sheila Copps has also pursued her acting career in this method, appearing on this show (Ms. Copps will appear again on Wednesday) and in a production of Steel Magnolias:

Director Brian McKay is confident in the former politician's abilities."She's got the stuff," he said.

Well, she's got something, alright.

(Question 4: Why is Train 48 still on the air? Does anybody even watch this rubbish? I mean, it's about a bunch of people sitting on a train. Talking about work! That's the entire premise of the TV show! I mean, holy cow, why would I want to commute home from work to watch actors pretending to be commuters talking about work?

Is Global that desperate for Canadian content?)