The federal Liberals' decision to appeal the recent Ontario Superior Court ruling in favour of same-sex marriage is no surprise to those who have watched the evolution of government policy on lesbian and gay rights since 1981.

Jean Chrétien is following a longstanding pattern of evading the issue and passing the hot potato to the courts. In most of these cases, the courts have ruled in favour of lesbian and gay rights and Ottawa has had to change its laws anyway. The courts are then left to take the political heat for policies that the Liberals have been too weak-kneed to adopt themselves.

The policy of passing the buck on gay rights dates back to 1981, during debates over the Charter's enactment. Then justice minister Jean Chrétien, under questioning from gay MP Svend Robinson, admitted that the open-ended wording of Section 15 (equality rights) of the proposed Charter, would make it possible for judges to add in sexual orientation as a prohibited ground of discrimination. In other words, rather than adding sexual orientation, the Liberals would leave the question for judges to decide.

During the 1993 election campaign, Mr. Chrétien wrote to the lesbian and gay rights group Egale to say that the "Liberal Party is firmly committed to banning discrimination on the basis of sexual orientation." This was simply the reiteration of Liberal Party policy opposing discrimination against lesbians and gay men dating back to 1978. Yet it took until 1996 for the government to amend the Canadian Human Rights Act to include sexual orientation, a change that had already been read into the act in practice through court decisions. Even then, Mr. Chrétien only acted after a stern talking-to in the media by then Canadian human rights commissioner Max Yalden.

As lesbian and gay claims to equal treatment under Canada's income tax and pension laws began to mount, the Liberal government refused to overhaul federal statutes until it was forced to do so in response to yet another court decision, the 1999 M v. H decision in Ontario. When the government passed the Modernization of Benefits and Obligations Act in 2000, which finally created an equal playing field for lesbian and gay couples for federal-jurisdiction benefits and obligations, it tacked on an amendment to the bill, asserting that its contents did not affect the traditional definition of marriage.

The ink had hardly dried when two courts ruled on the constitutional validity of heterosexual marriage under the Charter. Today, we face a situation in which one Canadian court has ruled against same-sex marriage (British Columbia) and one Canadian court has ruled in favour of it (Ontario). The fact that a Canadian court has found that the restriction of legal marriage to heterosexuals is unconstitutional and a violation of the equality rights of lesbians and gays should be a serious warning sign to Ottawa of what is to come.

It is unlikely that the Supreme Court will take a backward step on the recognition of Charter-based equality rights when these have the support of a bare majority of all Canadians and a very substantial majority of younger Canadians. Even if the court were inclined to stop same-sex marriage, the polling numbers and social attitudes of Canadians indicate that it will become a reality at some point over the next decade, one way or another.

It will also be difficult for the court to rule against the same-sex marriage claim without falling back on arguments based solely in religion or tradition.

There is no difference between the claim for same-sex pension benefits and the claim to same-sex marriage, except that marriage is freighted with historical and cultural symbolism. Either this symbolism can be stretched to include lesbian and gay couples or it will stand as an offensive statement of the second-class citizenship of same-sex relationships.

In the past, the court has been sensitive to the symbolic exclusion of same-sex couples and has specifically ruled against the idea of creating "separate but equal" legal regimes for heterosexual and homosexual relationships. It is not likely that the court will sanction second-class citizenship for lesbian and gay couples in a case that will be watched, not only in Canada, but also around the world.

So why doesn't Mr. Chrétien act now and avoid pushing the issue up to the Supreme Court? Essentially, it seems he is afraid of the well-organized and vocal social-conservative activists who have opposed every measure of equality for lesbian and gay Canadians for the past 15 years. This is the group that defended the discrimination suffered by Alberta teacher Delwin Vriend when he was fired for being gay, opposed measures to counter homophobic bullying of lesbian and gay teens in our schools and wanted teen Marc Hall of Oshawa, Ont., to stay home from the prom.

But militant social conservatives are a minority in Canadian society, according to polls. The Liberal government should not allow this minority to dictate government policy on such an important issue. In any case, the strategy of passing the hot potato to the courts may no longer be working. Canadians are increasingly savvy to the fact that the government uses the courts to pass the buck on the hard choices.

Same-sex marriage is coming. The only question is when and how.
Miriam Smith is a professor of political science at Carleton University and author of Lesbian and Gay Rights in Canada: Social Movements and Equality Seeking, 1971-1995.