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Same-sex marriages (SSM) in Canada

Introduction:


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Note:

This essay is largely written for Americans who form about 90% of this web site's visitors.

Many are unfamiliar with details of Canadian culture, laws, religions, etc. In mid-2005, many were surprised at the news that same-sex marriages (SSM) became legal in Canada.


Randomly selected, mostly Canadian quotations on SSM:

  • "Policies have to evolve as circumstances change. At present, there seems to be a general agreement that policies and reality are out of sync, but there is no agreement as to how to get them into sync again. Public opinion is divided as to what are appropriate responses. Some argue that we should support families wherever there are familial relations, regardless of the biological, marital, or type of sexual relationship involved. Others argue that this is precisely where the problems started and that we must protect the nuclear family against the demands of alternative types of families to be treated on an equal footing." Author M. Eichler. 1
  • "Homosexuality is not a normal condition. It is a physical disorder, it a social disorder and it is a spiritual disorder. Why are we forced to go down this path of accepting that what they do is equivalent to being married with children? All we can do is let our government know that our minister has betrayed the families of Alberta." Maureen Heron, spokesperson for the Alberta Federation of Women United for Families  2
  • "All people should be able to freely choose their intimate partners and their legal relational status without penalty from the state or without financial inducement to abandon their choices. The role of the law ought to be to support any and all relationships that further valuable social goals, and to remain neutral with respect to individuals' choice of a particular family form or status." B. Cossman & B. Ryder, Ontario Law Reform Commission. 3 
  •  ''The federal government has abdicated its leadership role. This matter has far-reaching consequences nationwide, and the nation's highest court should be permitted to consider the fundamental issues.'' Derek Rogusky of Focus on the Family Canada. 4
  • "We didn't set out to be activists. We wanted to get married and just go home. ... People should have the right to marry. Any loving relationship between two adults -- they should have the right to be treated with equality and respect." Joe Varnell, after his church marriage to Kevin Bourassa in Toronto ON on 2001-JAN-14 which the Ontario government refused to register.
  • "Gay and lesbian access to marriage by no means endangers the family, like the claims of certain organizations to the contrary. It signifies that marriage as an institution may and must adapt itself to the real diversity of couples and families presented in Quebec society." Vivian Barbot The Federation of Quebec Women

Human rights in Canada:

Canada's Native, British, and French heritage has "...made diversity the essence of the Canadian legal tradition." 7 Unlike the U.S. which has emphasized a melting pot philosophy to accommodate immigrants from all parts of the world, Canada has emphasized multiculturalism -- a country in which its citizens are encouraged to cherish their heritage. The valuing of diversity leads naturally to a respect for human rights. Clifford Lincoln gave a speech before the Qubec National Assembly in 1988 saying: "Rights are rights are rights. There is no such think as inside rights, and outside rights. No such thing as rights for the tall and rights for the short. No such thing as rights for the front and rights for the back, rights for the east and right for the west. Rights are rights and will always be rights. There are no partial rights."

Some milestones in Canadian human rights history were:

  • 1763: A Royal Proclamation -- also called the Indian Magna Carta or Indian Bill of Rights --recognized Native peoples as nations. It affirmed that the "...several Nations or Tribes with whom We are connected ... should not be molested or disturbed..." in Indian lands, and lands reserved for their use. 11
  • 1774: The Quebec Act "granted unprecedented protection to a conquered people." 7
  • 1807: Ezekiel Hart, a Jew, was elected to the Legislature and challenged the "Christian only" oath.
  • 1832: Jews were allowed to hold public office: a unique right in the British Empire at the time.
  • 1916: Wilfrid Laurier promoted a "regime of tolerance" for French speaking Ontarians.
  • 1929: The British Privy Council made a revolutionary ruling that women are persons, entitled to sit on the Canadian Senate. 10
  • 1940: Women in Quebec were given the rights to vote and to stand for office. Fifty years later, the Roman Catholic bishops in the province issued an apology to the women of Quebec for their role in delaying the right to vote.
  • 1948: John Humphrey wrote The Universal Declaration of Human Rights which was adopted by the UN on 1948-DEC-10.
  • 1949: The Jehovah's Witnesses -- to Canada's shame a heavily persecuted religious minority -- launched a national campaign to enact a Bill of Rights.
  • 1960: Prime Minister John Diefenbaker introduced the Canadian Bill of Rights -- the precursor to the Charter of Rights and Freedoms. 8
  • 1976: Canada became "...one of a very small number of countries that accepts the authority of the United Nations Human Rights Committee to hear complaints brought forth by Canadian citizens." 8

It was only logical that Canada would become the first country in the western hemisphere -- and the third country in the world -- to legalize same-sex marriage.


Approaching the same-sex marriage issue from different directions:

Depending upon their foundational beliefs, people develop opposite positions on same-sex marriage. For example:

  • A Fundamentalist Christian, believing that God inspired the authors of the Bible to write text that is free of errors, will probably interpret the Bible's six "clobber" passages as prohibiting all same-sex activities. They might well be more inclined to prefer to criminalize homosexual behavior than to give same-sex couples the right to marry.
  • A liberal Christian might well classify those same biblical "clobber" passages in the same category as those parts of the Mosaic Code which called for the execution of non-virgin brides, the burning alive of some hookers, etc. Many would heavily weigh the findings of human sexuality researchers about homosexuality, and reject Leviticus 20:13 which calls for the execution of men engaged in some same-sex practices. They probably include discrimination against gays and lesbians in the same category as sexism, racism, and xenophobia -- as an evil to be fought. Approaching same-sex marriage from a human rights perspective, most liberals probably support the right of all loving committed couples to marry, whether of the same sex or opposite sex.

Needless to say, people on both sides of the debate often have difficulty communicating their thoughts to the opposing side. True dialogue is almost non-existent.


The "gay agenda:"

In Canada as in the U.S., many homosexual rights groups claim that 10% of the adult population is gay. Many conservative religious groups reject this number and claim that the percentage of gays and lesbians is 2% or less. Both appear to be wrong. The generally accepted percentage among human sexuality researchers in both the U.S. and Canada is about 4% for homosexuals -- adults sexually attracted to members of the same gender -- and perhaps 2% for bisexuals -- adults attracted to both men and women, but not necessarily to the same degree.

The "gay agenda" is essentially the same in both Canada and the U.S. It can be expressed in a few words:

  • To achieve full legal rights for gays, lesbians, bisexuals and transsexuals, equal to those already enjoyed by the heterosexual majority, and
  • To modify the public's beliefs about homosexuality so that it is generally accepted as:
    • A fixed sexual orientation, which is unchosen, and
    • A normal and natural sexual orientation for a minority of adults.

    Early human sexuality researchers reached these conclusions during the 1950s. Most American psychiatrists and psychologists agreed a generation later. Most North American youths and young generally adult agree with these beliefs now.

Enlarging the definition of marriage to include SSM has been a major goal of homosexual civil rights groups in recent years. One reason is that marriage affects all aspects of a married person's life. It typically brings on the order of 1,500 benefits and obligations to the couple. A second reason is its immense symbolic value.


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Division of government powers concerning marriage:

In both in Canada and the U.S., the authority to create legislation controlling marriage is divided between the federal and the state/provincial governments. But the division differs between the two countries:

Item In Canada In the U.S.
Laws defining who can marry Federal government State governments
Laws governing marriage licenses, registering marriages, etc. Provincial governments State governments
Laws giving benefits to married couples Shared between federal and Provincial governments Shared between federal and state governments

In the U.S., SSM might be achievable nation-wide fairly quickly. Gay and lesbian groups might:

  • Building upon the Goodridge v. Department of Public Health decision of the Massachusetts  Supreme Judicial Court, a number of out-of-state same-sex couples could marry and return to their states of residence. 
  • At that point, Article IV, Section 1 of the US Constitution might kick in. It states that "full faith and credit shall be given in each state to the...judicial proceedings of every other state."
  • Thus, same-sex couples married in one state could conceivably force the remaining 49 states and the District of Columbia to recognize their marriages.

This belief has not been tested in the courts. It would obviously have to be ultimately determined by the U.S. Supreme Court. If the court decided that Article IV did not apply, then gay rights groups would have to fight for equal rights on a state-by-state basis. That could take decades.

In Canada, the process is much simpler. The Supreme Court of Canada has already recognized sexual orientation as a protected class. With one minor exception, it has ruled all cases brought by homosexuals in favor of equal rights for gays and lesbians.

Lawsuits to allow SSM were originally initiated in three provinces: British Columbia, Ontario, and Quebec. The province of British Columbia won one case on a technicality; the gay and lesbian couples won the other two. The couples later won unanimous decisions in all three appeals to the provincial Courts of Appeal. The British Columbia Court of Appeal ordered the federal government to rewrite its marriage legislation to accommodate same-sex couples. The Ontario Court of Appeal went one step further: it immediately ordered the Government of Ontario to issue marriage licenses to same-sex couples and to register their marriages. Most observers expected the Federal Government to appeal the case to the Supreme Court. However, the federal cabinet, faced with the unanimous consensus of three senior courts saw the handwriting on the wall and decided to abandon the appeal route.

The government prepared draft legislation authorizing SSM across Canada. It was approved as constitutional by the Supreme Court of Canada on 2004-DEC-09.

In the meantime, individual lawsuits were launched in Nova Scotia, Manitoba, Saskatchewan and Yukon. As of 2005-JAN-21, the courts in the territory of Yukon, and the provinces of British Columbia, Manitoba, Newfoundland/Labrador, Nova Scotia, Ontario, Quebec, and Saskatchewan had all issued rulings which permit same-sex marriage.

The government submitted their bill, C-38, to Parliament in 2005-FEB. It passed its final vote in the House of Commons during the evening of 2005-JUN-28. The vote was 158 to 133. The bill passed its final vote in the Senate by a vote of 47 to 21 with three abstentions on 2005-JUL-19. It was supported by the NDP party -- a socialist party -- and the Bloc Quebecois -- a separatist party, and many of the ruling Liberal party. It was supported by very few of the Conservatives -- a far-right party. It was signed into law on 2005-JUL-20 by the Chief Justice of the Supreme Court of Canada. The Governor General, who usually proclaims legislation, was incapacitated for medical reasons. Once passed by Parliament and the Senate and signed into law, same sex marriage would be legalized across the entire country.


Support for SSM:

Support for equal rights for gays and lesbians in Canada and the U.S. has been steadily increasing since the early 1990s.

  • The first meaningful studies of homosexuals were made in the 1950 by Evelyn Hooker.
  • It took two decades before the American Psychiatric Association removed homosexuality from its list of mental illnesses. Such major changes often take over two decades.
  • As is normal in topics like, it took the general public another two decades to start to change their beliefs towards homosexuals.
  • During the 1990s, many gays, lesbians, and bisexuals came out of the closet and went public with their sexual orientation. A much larger percentage of the population realized that they had at least one close friend and/or relative who was gay. Stereotypes began to collapse. Media coverage became more positive. These trends fed upon each other.

There were also political changes, particularly in Canada:

  • During that decade, a series of court decisions recognized the legitimacy of same-sex relationships, and generally granted same-sex couples specific rights that married opposite-sex couples had always enjoyed.
  • Later in the 1990s court decisions prodded governments to initiate changes in legislation affecting homosexuals and same-sex couples. 6

A 1996 poll showed that a slim majority of adults favored SSM. Support appears to be leading that in the U.S. by almost a decade. A 2003 poll by the Centre for Research and Information on Canada showed strong support for SSM among young to middle-aged adults. Their first question was: "Do you support or oppose gay marriages?" Results were:

Age/Gender Support Oppose No answer
Males 18 to 34 61.2% 33.9% 4.9%
Males 35 to 54 55.0 38.6 6.4
Males 55+ 24.6 67.8 7.6
Females 18 to 34 69.2 22.2 8.6
Females 35 to 54 62.2 28.0 9.8
Females 55+ 37.6 56.8 5.6

The poll was taken before the Ontario Court of Appeal ordered the Government of Ontario to start registering same-sex marriages on 2003-JUN-10. Since then, SSM ceremonies have become common, and the public appears to have taken them in stride. One indication of lack of concern by the public is that few negative letters about SSM have been sent to editors of Canada's larger newspapers.

Much of the absence of opposition to SSM is traceable to the religious makeup of Canada. The percentage of Fundamentalists and other Evangelical denominations is only about 8% in Canada, compared with about 35% in the U.S. The largest Protestant church in the country is the United Church of Canada. Their theology and other beliefs are rather liberal and are similar to those of the United Church of Christ in the U.S. Both have allowed gays and lesbians to be ordained. The United Church of Canada has a ritual for celebrating the union or marriage of gay or lesbian couples.

After the federal law was passed during 2005-AUG, the only jurisdiction in Canada that refused to marry same-sex couples was tiny Prince Edward Island. SSM was theoretically legal there, but the government refused to issue marriage licenses to same-sex couples until after the legislature passed enabling legislation. They capitulated after a lesbian couple threatened to sue the province.


Current status:

As of mid 2008, same-sex marriage has been generally accepted by the public. The topic rarely, if ever, appears in newspaper letters to the editor. Conservative Christian websites and news services in Canada still object to marriage equality.

There appears to be no substantial effort being mounted to roll back the clock on marriage law. However, if the current federal Conservative government obtains a majority in a future election, this could change overnight.


References:

  1. M. Eichler, "Family Shifts -- Families, Policies, and Gender Equality" Oxford University Press, (1997) at Page 3.
  2. John Cotter, "Alberta to Give Same-Sex Couples Similar Rights as Married Couples," Canadian Press, 2002-MAY-7.
  3. B. Cossman & B. Ryder, "Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms,"  Ontario Law Reform Commission, Toronto, (1993) at Pages 3 & 5.
  4. "British Columbia court allows same-sex marriage," MSNBC News, 2003-JUL-8, at: http://famulus.msnbc.com/FamulusIntl/
  5. "Population 5 years and over by mobility status, provinces and territories (2001 Census)," Statistics Canada, 2004-APR-25, at: http://www.statcan.ca/
  6. J. Scott Matthews, "The political foundations of support for same-sex marriage in Canada," at: http://www.cpsa-acsp.ca/ You may need software to read this PDF file. It can be obtained free from:
  7. Tom Axworthy, "Rights essential to our heritage," The Toronto Star, 2005-FEB-22, Page A20.
  8. "Human Rights and Canada: Building the Foundation," Multicultural History Society of Ontario, at: http://www.mhso.ca/
  9. "John Humphrey Centre," at: http://www.johnhumphreycentre.org/
  10. "The Governor General's Awards in Commemoration of the Persons Case. The 'Famous Five' and the Persons Case," Status of Women Canada, at: http://www.swc-cfc.gc.ca/
  11. Shannon Thunderbird, "At the pleasure of the king," at: http://www.shannonthunderbird.com/

Site navigation:
"SSM" is an acronym "same-sex marriage"

Home > Rel. info. > Basic > Marriage > SSM menu > SSM submenu > Canada > here

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Copyright © 2003 to 2008 by Ontario Consultants on Religious Tolerance
Latest update: 2008-JUN-19
Author: B.A. Robinson

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