In fact, however, the president’s position on the legality of same sex marriage is almost identical to Romney’s. In his statement, Mr. Obama said the following:

“This is something that historically had been determined at the state level and part of my believing ultimately that civil unions weren’t sufficient, and I’ve been a longtime supporter of civil unions for same sex couples, was partly because of the issue of social security benefits and other laws.”

The president has stated he will not ask Congress for any legislation on the subject of same sex marriage, nor will he seek to advance an amendment to the U.S. Constitution to clarify the issue. He, in fact, believes that the question ought to be left to the states to determine for themselves.

Obama’s states’ rights position was criticised by the New York Times (May 10, 2012) on the grounds that it “effectively restricts the right to marry to the 20 states that have not adopted the kind of constitutional prohibitions North Carolina voters approved.”

On its face, this might seem a small quibble with the article, but it’s important to note that — contrary to popular belief — Obama’s embrace of same sex marriage is not unrestricted. He does not believe that the U.S. Constitution guarantees the right to same sex marriage, otherwise he would have said so. Instead, he, like Mitt Romney, believes that if there is a right to same sex marriage, it must be found in the constitutions of the several states.

However, the case went before the BCCA in November 2010. See: http://theplantrant.blogspot.ca/2012/03/justice-for-tsihlqotin-is-taking-very.html.

We are still awaiting the CA’s decision.

well written. I am following the case with interest.

RH Mulloy
Clinical Associate Professor
University of Calgary

http://canlii.org/en/ab/abca/doc/2011/2011abca238/2011abca238.html

“[92] Before reviewing what the evidentiary record reveals about Lucy, I must address the City’s argument that the appellants’ evidence should be ignored. The appellants filed six affidavits including sworn evidence from four doctors: an ecologist, an elephant biologist and ethologist, and two veterinarians. The City contends that this evidence is irrelevant to the issues before this Court and inadmissible in any event since it is based on hearsay. These arguments are both without merit. “

Two other important issues: 1) undermining the civil rights of the plainitffs (fair hearing, fair trial, equal before the law & freedom of speech ) why should “no defensive evidence” be structured to stop litigation and to overrule “solid, substantial evidence”. Should this principle be applied to criminal law where the much higher norm of “without a doubt” implicitly requires comparable rulings. 2) ignoring the obvious of governments failing to do their job or fairly police themselves or “politically friendly” entitities – why are citizens unfairly denied the (politically controlled) legal remedy of pursuing statutory penal actions in tort where the evidentiary standard can simply be raised to be “without a doubt” for those aspects of the case. It is far too much a game of whoever controls the top offices in government protecting friends, the wealthy or legal issues they want suppressed and ignored ( CN – Wabamun spill : Onischuk v CNR, Alberta, et al QB 0703-10092, 1003-0062AC, QB 1103-00285 ).

For those fixated on public interest standing, consider that the laws enacted apply to every resident of Alberta, so in turn, every citizen should be able to apply such laws on their behalf when seeking remedies. You may wish to refer to BCSC remarks 65-98 in Cassels v UVictoria regarding feral rabbits. The issue of public standing (Municiapl Govt Act s.536-538, Animal Protection Act, Wildlife Act ) appears again in Onischuk v HMQRA, Canmore QB 1101-14786 where Defendants claimed penal action when no penal action was sought – but the decision in Reese, Cassels enabled a further bending of reality to fit a goal, not citizen legal rights.

During the discussion, the panellists consider whether section 14(1)(b) of The Saskatchewan Human Rights Code is overbroad, and therefore, an unreasonable and unjustifiable limitation on freedom of expression.

The panellists debate the merit of provincial human rights legislation that regulates hate speech and whether or not “hatred” is capable of definition. While some panellists contend that it is, other panellists take the view that it is a vague and imprecise concept.

Mr. Huscroft argues that the provision as it is written is unclear therefore making it impossible to know what conduct is proscribed by law. He cautions that the vague concept of hate gives bureaucrats too much discretionary enforcement authority to brand certain speech as hateful. Moreover, the civil consequences that ensue if you are faced with a human rights complaint (cost of litigation, public vilification, and being made to pay damages) are not to be underestimated.

In a similar sentiment, Ms. Zwibel cautions that an imprecise standard, as is the case here, could mean that individuals will refrain from taking controversial positions that may run afoul.

In contrast, Mr. Gurmukh takes the view that the Whatcott case is not simply about offensive speech or controversial remarks; it is about speech that rises to the narrow standard of what is hateful, such as speech that dehumanizes an identifiable group. He adds that Human Rights Tribunals and the courts have taken a narrow interpretation of hatred, which is evidenced by the fact that only five cases before the Saskatchewan Human Rights Tribunal have proceeded to a formal inquiry in the thirty-two years the provision has been on the books.

Overall, the divergence in the panellists’ remarks provides some valuable insight into the legal questions arising from this case.

A video recording of the panel discussion can be seen at the following link:

http://www.youtube.com/watch?v=XgXKeWHlD6Q&feature=channel_video_title

A motion for leave to appeal has been filed and it is accessible at: http://www.selwynpieters.com/documents/2012-03-063130NoticeofMotionforLeavetoAppealFINAL.pdf

Is there a circumstance short of an official policy which could qualify as discrimination? If one rogue librarian, contrary to policy, only ever carded Asians, and never carded anyone else- would this be discrimination? Would it matter if lawyers generally didn’t bother keeping their ‘cards’ since no one ever asked for them? Is allowing this state of affairs any different/better/less discriminatory than a blanket no-asians rule?