November 4, 2008 was the best of times and the worst of times for liberal Americans.  On the same day that Barack Obama was elected President, California voters passed Proposition 8, which introduced an amendment to the state constitution banning same-sex marriage.

Earlier this year, the California Supreme Court held that the passage of Proposition 8 was lawful and that same-sex marriages could legally be prohibited in California (although, in something of a silver lining, the court ruled that the approximately 18,000 couples who had been married while same-sex marriage was legal within the state would not be forcibly divorced). Even with Canada’s generally laissez-faire attitude, it’s still a nightmare scenario for queer Canadians — especially with a Conservative government in power: Could a Canadian province prevent gay and lesbian citizens from exercising their right to civil marriage?

It’d be tricky, though not impossible.  Parliament passed a law guaranteeing the right to same-sex marriage in Canada in 2005, but not all provinces were eager to embrace the law when it was originally passed.  It’s easy to imagine Alberta attempting to pass legislation similar to Proposition 8 — in fact, then-premier Ralph Klein threatened to invoke the Charter’s notwithstanding clause to prevent the federal law from being implemented in Alberta, although he eventually backed down.

It would be hard for a same-sex marriage ban to be imposed at the provincial level, because the Canadian constitution specifically gives the power to regulate marriage to the federal government, rather than the provinces, whereas in the U.S., the power to regulate marriage is given to the states rather than the federal government. The 1996 Defense of Marriage Act prevents the American federal government from recognizing same-sex marriages, but each individual state is free to permit or prohibit same-sex marriage (at least with respect to the powers given to the states — even in states like Massachusetts, where same-sex marriage is legal, gay and lesbian married couples have no rights to federal immigration benefits, for example).

Any serious attempt to ban same-sex marriages in Canada would have to be made at the federal level; Parliament would have to pass a new bill overturning the existing law and banning same-sex marriage. When the Conservatives initially formed a minority government in 2006, they promised to reopen the issue. However, after a vote on revisiting the same-sex marriage debate failed in December 2006, Stephen Harper said that he considered the matter closed and that he “[didn’t] see reopening this question in the future.” 

Still, the Conservative base, made up of charmingly tolerant groups like REAL Women of Canada and the Canada Family Action Coalition, remains opposed to same-sex marriage. In the event that the Conservatives win a majority government in the future, these groups would no doubt press the issue yet again. 

However, polls show that a growing majority of Canadians support same-sex marriage. As more and more gay and lesbian Canadians exercise their right to marry, it will be increasingly difficult for opponents of same-sex marriage to overturn what has now become an entrenched Canadian civil right. Just don’t get too cocky.

Christina Perry is a lecturer at City University London’s Inns of Court School of Law.