Canada’s social conservatives look at America with envy

In the U.S., the religious right has a chance to remake the Supreme Court. In Canada, not so much.

With the Liberals less than two years into a four year mandate, social conservatives in this country have to look beyond 2019 for anything vaguely resembling an opportunity to advance their agenda.

His disappointingly restrictive legislation on assisted dying notwithstanding, Prime Minister Justin Trudeau has made no secret what side of the culture wars he is — moving ahead with legislation on transgender rights and taking a hard line with the already endangered species of anti-abortionists in the Liberal caucus.

The selection of Andrew Scheer as Conservative Party leader was hailed in the media as a victory for the social conservative cause. That may be the case in a very limited sense. It is certainly true that when forced to choose between the father of five from Regina and the urbane Quebec libertarian Max Bernier, many rallied around Bernier but settled for Scheer.

But Scheer was hardly the movement’s golden boy either. He was a “lesser of evils” pick for voters who didn’t really have any better options.

Scheer may personally hold certain socially conservative views. But if he were to become prime minister, expect him to continue in the mould of Stephen Harper — throwing just enough red meat to social conservatives on issues at the periphery while making no efforts whatsoever to substantively roll back measures they don’t like or to halt the pace of social change.

The reality is that social conservativism is a moribund political movement in this country, wasting away on life support, its political capital spent. The hard fought but ultimately unsuccessful battle to prevent same-sex marriage in this country is a rapidly becoming a fading memory.

What passes for success for the movement these days are the pledges from politicians currying their favour to allow free votes and open debate in the House of Commons on their issues and to ensure that hate speech laws won’t be used to prohibit them from expressing their views. That is about it.

Social conservatives in Canada aren’t really fighting to ban abortion and same-sex marriage these days. They are too busy fighting what they perceive as an existential battle against those who want to prevent them from espousing their views at all.

As for Scheer, there is little to be gained for the new Conservative leader by spending precious political capital on the aspirations of the movement. Scheer may owe his position today to his party’s social conservative base. But he is not beholden to social conservatives, and he risks his own political fortunes if he’s seen as too cozy with them. Already, Liberal messaging seems aimed at branding him as one of them.

Matters are completely different south of the border. Conservative Republicans are firmly in control of government, and in that country social conservatives are not some fringe element that can be mollified and ignored. They are the mainstream of the party.

But Congress and the White House are just a subplot in a story of much longer lasting implications. With so much socially conservative legislation emerging at the state level, the battle for control of the country’s high court is the front line of the culture war.

And if there is one thing keeping liberal court watchers awake at night these days it has to be swirling speculation about the possible resignation of U.S. Supreme Court Justice Anthony Kennedy.

For those unfamiliar with him, Kennedy is the only current member of that countries high court who can’t be pinned down as a member of the courts “liberal” and “conservative” wings. The remaining eight judges fall into one of two relatively stable blocs of conservatives and liberals. Their votes can usually be predicted in advance whenever hot button “culture war” issues are on the docket. Kennedy has historically lent his vote to the courts liberal wing in key decisions surrounding same-sex and abortion rights.

The resignation of Justice Kennedy at this juncture in history — with the GOP firmly in control of both branches of government responsible for choosing his successor — would be a body blow for progressive politics and a major victory for social conservativism.

Obviously, I don’t see Donald Trump as a brilliant political tactician but rather the benefactor of circumstance. His socially conservative bona fides are also questionable. But he surely recognizes how much he owes his election to the desire of certain voters to get a reliable conservative on the bench. Even this bumbling fool of a president is unlikely to screw this up.

Replacing Kennedy with someone more conservative would represent a far greater success for social conservatives than when Trump appointed conservative Justice Neil Gorsuch to replace conservative Justice Antonin Scalia. It would be a seismic shift in the balance of power on the court — the most significant since George W. Bush got to replace moderate Sandra Day O’Connor with more reliably conservative Samuel Alito.

Matters would go from bad to worse if justices Ruth Bader Ginsburg, 84, or Stephen Breyer, 79, – two of the four justices that form the courts “liberal” wing – succumb to the pressures of old age during Trump’s term. Unlike Breyer and Ginsburg, none of the conservative members of the court are of advanced age.

The balance of power on the court could shift for a decade or more. The courts would cease to act as a vehicle for progressive social change and could begin upholding state and federal moves to roll back abortion and gay rights.

Of course speculation in the media about the resignation of a judge may come to be nothing, but with three aging justices, the departure of one would tip the balance of the court. The Republicans have to feel good about their odds.

Meanwhile, Canadian social conservatives look on with envy.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.

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