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Post subject:
 Posted: Mar 31, 2007 - 03:56 PM
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Joined: Feb 22, 2007
Posts: 290
Location: USA
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Yes, courts are inherently incremental in their remedies. Courts are conservative; the law is meant to be stable. And that's as it should be, really, until such time as a tipping point is gained and you get something broad like Lawrence v. Texas.
A question about Canadian courts, relevant to this: in the US we have different districts (known as Circuits) in the Federal courts, so it can be (and often is) federally unconstitutional to prosecute a person for something in one Circuit, but perfectly legal to do so in another Circuit. It is only when there are clear differences of that sort (and also when it is politically expedient) that the Supreme Court agrees to step in and settle the matter across all Circuits. Understand, those differences exist *at the Federal level*, and yet still the *Federal* law varies from place to place, Circuit to Circuit. I get the impression that Canada is much more legally unified... or that the courts at least get to a consensus faster than do US courts. Is that so?
If so, perhaps that's why the incrementalism up yonder is a bit less annoying than it is down here. |
_________________
"That buzzing-noise means something. You don't get a buzzing-noise like that, just buzzing and buzzing, without its meaning something."
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Post subject:
Posted: Mar 31, 2007 - 08:10 AM
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Joined: Sep 06, 2006
Posts: 1754
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Quote:
and it was court decisions in those provinces that helped tip the balance
Quite so. The incremental strategy and the courts are quite well matched. I would be rather surprised if even one of Canada's "baby steps" could be shown to have been without a court ruling as a precident. |
_________________
"If you want the freedom, the abilities, you have to find a way. Just don't be so passive. We are capable of so much more." -- Larry Kramer
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Post subject:
Posted: Mar 30, 2007 - 11:19 PM
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Joined: Sep 06, 2006
Posts: 1195
Location: Valhalla Mountains, British Columbia, Canada
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Not entirely so, KT. For instance, equal marriage was legal in Ontario and British Columbia for almost a year before most other provinces, and it was court decisions in those provinces that helped tip the balance (federally) in our favour.
In other areas, such as inclusion in the Charter, and the hate crimes legislation, you are correct. |
_________________
"The dignity of an animal is measured by his capacity to revolt in the face of oppression." -- Mikhail Bakunin
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Post subject:
Posted: Mar 30, 2007 - 10:11 PM
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Joined: Feb 22, 2007
Posts: 290
Location: USA
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Quote:
Are we smart, or are we just lucky? I'd say lucky, and I wouldn't so much say smart as that this method of advancing through baby steps fits in with the way we just are. Americans (on average) tend to be individualists; Canadians tend to be collectivists.
I would possit another explanation: unless I'm mistaken, the increments pursued in Canada applied to the entirety of Canada-- were 'Federal', if you will-- whereas we in the US have those pesky states to deal with in addition to the Federal level. Increments in the US net you marriage in Massachussetts and a hateful legal landscape in Ohio and Virginia. To affect people's lives in a real fashion, we need big changes, not incremental ones. |
_________________
"That buzzing-noise means something. You don't get a buzzing-noise like that, just buzzing and buzzing, without its meaning something."
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Post subject:
Posted: Mar 30, 2007 - 08:08 PM
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Joined: Sep 06, 2006
Posts: 1754
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Quote:
we "rall[ied] ... march[ed] ... protest[ed] ... and ... call[ed]
Yes, and there were three to four thousand of you at the time. Of late the histories have been being written in a 'sanitized' form, no doubt by those mysterious "academics" I am so fond of pillorying. That's the way it now reads -- rallied, marched, protested, and called. I recall rather strident accusations of police brutality during these "low-key" events... repeated accusations. Of course, memory is a tricky thing. I get older, and the written word keeps changing to fit how people wish to see events.
Did you not get to "kick butt"? Probably not. The only significant 'butt-kicking' at Stonewall (if I remember my history) involved an undignified but very prudent 'tactical withdrawal' on the part of the police who had earlier engaged in entirely imprudent tactics. The burning cars were from White Night. I don't remember any from Stonewall.
As for this:
Quote:
...seems to confound...
...don't seem capable...
...sure don't like it...
Yes, it does -- and often.
No, they don't -- and often.
No, they don't -- and why would they? Given the first two phenomena, the third seems inevitable. This is a puzzle I have not even begun to figure out yet. I think the solution to the conundrum holds the key to separatism... one way or the other.
If they cannot, why ask them? If they can, how to forgive them? |
_________________
"If you want the freedom, the abilities, you have to find a way. Just don't be so passive. We are capable of so much more." -- Larry Kramer
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Post subject:
Posted: Mar 30, 2007 - 01:02 PM
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Joined: Sep 06, 2006
Posts: 1195
Location: Valhalla Mountains, British Columbia, Canada
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Okay, you made me laff. Yes, I *know* you like to quibble. Yer just a quibbling queer, you are! 
Anyway, I will accept the first quibble -- mea culpa.
For the second one though... I was certainly aware of the Toronto raid (there was later one in Calgary too, IIRC), but the reason I don't classify it on the same scale as Stonewall is that as far as I know we never got to burn any cars, and we certainly never kicked any cops' asses -- which would have been *richly* deserved.
No, we "rall[ied] ... march[ed] ... protest[ed] ... and ... call[ed] for [an] independent inquiry." How very, very Canadian. We shook our fists. Oh well, it (eventually) got the job done, even if we *didn't* get to kick any lard-ass cop butt.
Quibbling aside, I would have to agree with your other assessments, though -- I would never suspect HRC (let alone accuse them) of harbouring anything like an incrementalist strategy (unless it was a strategy to get an ever-increasing percentage of queers to vote for the Democrats. They have their loyalties, and I have mine.
(Speaking of which, it really seems to confound some of those EM-ers that I can actually speak in defence of Mark Foley. What they don't seem capable of recognizing is that I am not so much speaking up for Foley as I am defending a homosexual from homophobic innuendo, slander and smears. But they sure don't like it when I point out that's what they're engaging in. |
_________________
"The dignity of an animal is measured by his capacity to revolt in the face of oppression." -- Mikhail Bakunin
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Post subject:
Posted: Mar 30, 2007 - 12:23 PM
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Joined: Sep 06, 2006
Posts: 1754
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First the quibbles (you just KNOW I have to quibble) 
Foremost, I must strenuously object to the perpetuation of the myth (and OH -- it is one) that "life, liberty, and the pursuit of happiness" is enshrined in the US Constitution. That phrase is to be found in the Declaration of Independence. The relevant phrase for comparison would be "in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Wordy, I know, but USians have always been blowhards. It is a small matter, but coming from a generation which had been obliged to recite the Preamble to the Constitution, it really bugs me. You'd be surprised how many USians haven't the foggiest idea what is contained in that document (and what is NOT). Then again, perhaps you would not be surprised.
You mention twice that there was no "Stonewall" in Canada -- an odd assertion for a gay man in Canada to make.
Quote:
February 5 / Toronto
Massive police raid carried out on four bathhouses, largest mass arrest in Canada since War Measures Act. Two hundred and eighty-six men charged as found-ins, and twenty as keepers of common bawdyhouse.
[Beginning at 11 p.m., more than 150 police simultaneously raided the Club Baths, the Romans II Health and Recreation Spa, the Richmond Street Health Emporium (heavily damaged, it never reopened), and, for the second time, the Barracks. For the War Measures Act, see Oct 22, 1977.]
February 6 / Toronto
Over three thousand people gather in downtown street[s] in angry late-night protest against bath raids.
February 20 / Toronto
Over four thousand gays and supporters rally at Toronto's Queen's Park and march to Metro Toronto Police's 52 Division to protest February 5 bathhouse raids and to call for independent inquiry.
I would not call an "angry protest" by 3000 people a "low-key" event. By way of comparison, the crowd at the first two nights of Stonewall is estimated to have been around 2000. Perhaps it is a quirk of our national dialects -- what we call a "riot" you call an "angry protest." In any event, this event was so very "low-key" that my favored watering hole was a-buzz with talk of it all that weekend.
There... quibbles over.
I do not disagree with the incrementalist approach. On the contrary -- it is a prudent and sound strategy. The difficulty is that we are, of course, talking about incremental successes, not incremental attempts. It is the strategy adhered to by Lambda Legal, much to the dismay of those who would wish to make use of their services. Lambda Legal has, over the years, been much castigated for turning down cases. They have sound reasons for doing so and they make a fair ethical argument for the practice as well. This is why so much of the work on the behalf of gay students is undertaken by the ACLU, an organization that is not a party to Lambda Legal's grand strategies.
Nope, nothing wrong with "piece-by-piece" at all, so long as the pieces eventually add up to something worth having.
I question the blind attribution of such a strategy to HRC however. I just don't see the incremental successes. What I've seen is decades of incremental failures.
While incrementalism is a sound strategy, it is not the only strategy. Whether incrementalism is or ever was an appropriate strategy is a matter open for debate. |
_________________
"If you want the freedom, the abilities, you have to find a way. Just don't be so passive. We are capable of so much more." -- Larry Kramer
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Post subject: Incrementalism
Posted: Mar 30, 2007 - 09:58 AM
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Joined: Sep 06, 2006
Posts: 1195
Location: Valhalla Mountains, British Columbia, Canada
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[This thread has been split off from the topic on blog criticism of HRC]
Quote:
On its face, I don't think this is in the least bit true. Small victories over a decade are small victories over a decade. They could only be said to be the functional equivalent of "major gay legislation" if the combined effect of those small victories is equivalent to the effect of one sweeping piece of legislation.
Well, if you are talking about the experience in the States specifically, I could agree with you, I guess. But in terms of the situation north of the border, I would argue that this "small victories" strategy has actually worked for us. Homosexuality was decriminalized in 1969, and since then we have seen gradual progress -- slow, to be sure, but progress nevertheless. It's taken us almost 40 years, but piece by piece we have gained victories, from legislation that prohibited discrimination in areas such as employment or housing, to designation as a protected group under the Charter of Rights and Freedoms and inclusion in the hate crimes legislation... and of course, most recently, marriage.
But then, Canadians have always tended to be incrementalists. Despite our reputation of being "progressive", the true fact of the matter is that most Canadians are quite cautious and conservative -- we don't like sudden, wild swings from one extreme to the other, either in our politics or our social contract with each other. We didn't have a revolution against Britain, we gradually eased our way into independence. It's not very stirring and glamorous, but it's a lot less bloody that way. (I've often said, if there was a Canadian version of the game of "Risk", it would come with a boardroom table and a bunch of chairs, and the game motto would be, "Can't we just talk this over like civilized people?" )
So this "slow evolution" of recognition of our rights is fully in keeping with our nation mindset. Although we certainly benefitted from it, we didn't have a "Stonewall" -- we lobbied politicians, we went to court, we made small gains at the municipal and provincial level, and bit by bit, we advanced. And yes, it's frustrating to stand there and watch as change seems to come at a glacially slow pace, but it does come. Sure, there has been resistance by the bigots, and I do not pretend that it has all been sweet reason and smooth sailing. But the fact remains that we have made advances, and we have managed to avoid some of the worst of the fundamentalist backlash that is evident in the States.
Are we smart, or are we just lucky? I'd say lucky, and I wouldn't so much say smart as that this method of advancing through baby steps fits in with the way we just are. Americans (on average) tend to be individualists; Canadians tend to be collectivists. You can see that written right into our two constitutions: the American one blares "life, liberty and the pursuit of happiness"; the Canadian one extolls the virtues of "peace, order and good government". We're not flashy and flamboyant, we're not wave-makers, we're plodders. We might be a little boring, but we're proud of our "common sense", and without really being aware of it, most of us internalize a certain cultural belief that is common from coast to coast to coast -- the needs and demands of the individual do not overshadow the greater good of the collective whole. Sometimes this attitude results in a willingness to put up with unfair circumstances far longer than we ought to, rather than accepting sweeping, radical changes, but as I said, Canadians are a cautious, pragmatic people.
And one other trait Canadians seem to share (for the most part) as a result of this collectivist mindset -- we try to be fair, to do the most good for the greatest amount of people. Sure, portions of the collective will lag behind, but we're trying for the greatest good for the greatest number, here. That's why I think solutions that would be seen as "communist" in the more individualistic United States are more readily accepted in Canada. Our public health care system is only the most well-known example; there's many other examples, "crown corporations" like public auto insurance, or our publicly-owned broadcaster.
So what do you get when you combine cautious, conservative plodders with a deeply-ingrained sense of collectivity? Incrementalism. As I said, it's not as flashy and romantic as Grand Gestures, but it gets the job done. Therefore, although Canadians had "skirmishes", such as the Estevan Miners' Strike, or even large-scale struggles like the Winnipeg General Strike -- both noteworthy for the fact that unarmed union men were murdered by police -- Canada never had anything to compare to the violence of the labour struggles in the Colorado mines, or the Pullman Strike. BUT... Canada achieved the eight-hour day before the United States did. Similarly, Canada never had a Harvey Milk, or a Stonewall -- instead, there were protests by a University of Toronto gay and lesbian students' group, and other similar low-key events. BUT... Canada achieved advances in civil rights -- coast to coast, as a collective -- that most queers in the US would love to enjoy.
Oh, I don't say you can draw a sharp division line between the two countries, and pretend that we don't influence each other; Canadian queers have benefited (and suffered) from some of the best and the worst of the American queer experience that has flowed across our border. I hope some of the same has been returned, as small an influence as it might be. But I would say that by in large, advances in queer civil rights in Canada has mimicked our wider experience as a country: slow and steady wins the race. As one of Canada's longest-serving provincial premiers, Bill Davis, said one time when he was accused of being boring and bland, "Hey, bland works." So, we're bland. Incrementalists. Step-by-steppers. But it works, for us at least. |
_________________
"The dignity of an animal is measured by his capacity to revolt in the face of oppression." -- Mikhail Bakunin
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