SAME-SEX MARRIAGES IN CANADA
POTENTIAL ROADBLOCKS AGAINST SAME-SEX
Potential roadblocks at the Supreme Court level:
On 2003-OCT-6, two conservative groups who had intervener status in the
Ontario SSM court case applied to the Supreme Court of Canada for
permission to appeal the case to the higher court. They are the Association
for Marriage and the Family of Ontario and the Interfaith Coalition on
Marriage and the Family. They were opposed both by the six same-sex couples
who won at the Court of Appeals and by the Government of Canada.
The groups were denied intervener status.
Potential roadblocks at the federal government level:
As of 2003-JUN-17, the Liberal Party of Canada, which has a solid
majority in the House of Commons, decided to:
||Write enabling legislation to enlarge the definition of marriage in Canada
to include both opposite-sex and same-sex couples.
||Submit this draft legislation as a "reference" to the Supreme Court of
Canada for approval or corrections.
||Submit the revised legislation to Parliament, perhaps by the fall of 2003, or the
winter of 2003-4.
||Forward the legislation to the
Senate for approval and to the Queen's representative in Canada for
authorization as law.
But this was far from a sure thing:
||The Supreme Court is not known for speedy decisions. It is likely to hold
hearings on the draft legislation -- probably in 2004-Spring. Some provinces will want to try to persuade
the court to deny gays and lesbians the right to marry. Various conservative
religious groups will want to take the same stance. As Chantal Hébert
wrote in an opinion piece: "It would take the equivalent of a judiciary
miracle for definitive legislation to be submitted to Parliament for a free
and final vote before the next election." 1|
||After the next election, there was a possibility that a different party
would be in power.
Stephen Harper, the leader of the Canadian Alliance party and current head of
"Her Majesty's Loyal Opposition" could have become the new Prime Minister.
He and his cabinet could
have reverse the Liberal Party decision to proceed with the enabling legislation. There are
indications that he was going to make opposition to same-sex marriage the key
plank in his party's election platform. His, or any other, new government could decide to
implement the "notwithstanding" clause which
would allow it to opt-out of the human rights section of the Charter of Rights
and Freedoms -- the Canadian Constitution. "When asked if he, as prime
minister, would use the notwithstanding clause of the Constitution to suspend
the equality rights of gay Canadians to achieve his goal, his answer Wednesday
[2003-JUN-18] was a cautious 'yes'." The new government could pass
legislation to retain marriage as a special privilege for heterosexual couples
only, while acknowledging that the act discriminated against the equal rights
section of the Charter. Such "notwithstanding" legislation
would automatically expire in five
years, but could be renewed indefinitely.|
Columnist Chantal Hébert suggests that
Harper's decision was a hazardous one, for two reasons:
||The campaign could degenerate into a homophobic crusade, and alienate
the majority of Canadians who favor of equal rights for gays and lesbians,
including same-sex marriage.
||Making the same-sex marriage issue prominent in the campaign "...could
reinforce the Alliance's image as a narrow-minded, socially backward party
and set it back once and for all." 1
||Regardless of what party is in power, some Liberals, most Conservatives
and all -- or essentially all -- Alliance members of parliament were predicted
against any enabling legislation and cause its rejection. Most liberals, and all or
essentially all New Democratic Party and Bloc Québécois members are expected
to vote in favor of the bill. However, they may not be sufficient in numbers
to pass the bill.|
||Even if the bill were passed by the House of Commons, the Senate could
reject it. Liberal Senator Anne Cools said: "It's a very divisive debate.
I'm not prepared to redefine marriage and make it something it isn't."
By the middle of 2005-JAN, the Liberal party
had been returned to power, but as a minority government. Parliament is due
to be recalled at the end of January. The same-sex marriage bill is expected
to be the first item of business. Its outcome is uncertain. Canada's largest
religious denomination, the Roman Catholic Church, has publicly opposed SSM.
The two largest Protestant denominations, the United Church of Canada and
the Anglican Church of Canada are not taking an active role in the matter,
perhaps out of fear of church schism. Conservative Protestant churches and
para-church organizations are actively opposing equal access to
marriage. The public is deeply split over SSM, although the trend is towards
acceptance, particularly among the youth and young adults.
Potential roadblocks at the provincial/territorial government level:
The political leadership of nine of the ten provinces in Canada has indicated
acceptance of same-sex marriage if the federal government changes the marriage
act. For example:
||Manitoba Justice Minister Gord Mackintosh said that his province would
update its paperwork if the Federal Government authorizes same-sex
||Pat Binns, the premier of Prince Edward Island and a supporter of
retaining marriage as a special privilege of heterosexual couples, said: "I
am not above the law." 2
The sole holdout is the Province of Alberta. It contains a large
percentage of religious conservatives and has sometimes been referred to as the
buckle of Canada's Bible belt. Alberta Justice Minister Dave Hancock said: "To
take a institution that is near and dear to so many people and change the
definition in this way is going too far." When he was asked about the other
provinces' acceptance of the change, he said "That's up to them." Later
in an interview he said that "...when we talked to Albertans about these
issues, they said that marriage, as a social and religious institution, needs to
be protected and we said, 'We'll do that'." 2 He
explained that his province will try to use the
notwithstanding clause of the Charter to deny marriage licenses to gay and
lesbian couples, even if the federal government expands the definition of
British Columbia Attorney General Geoff Plant implied that Alberta's plans
are almost certainly a futile attempt. He said: "The definition of marriage
is a matter of federal constitutional responsibility and I notice that in the
last few days, what Alberta has said it will do has changed a little bit...My
view is that an attempt to get through the back door what you cannot get through
the front door will be struck down by the courts. 2
Patrick Monahan, an expert in constitutional law at Osgood Hall Law School
in Toronto, ON agreed. He said: "You cannot use a province's
right to issue marriage licenses to frustrate the operation of federal law."
On 2004-DEC-08, the Supreme Court of Canada released its rulings
on the Federal Government's reference questions. They advised that the
government has the right to define who can marry. This terminates any
possibility that the Province of Alberta can implement the notwithstanding
Related essay on this web site:
Chantal Hébert, "Will same-sex
marriages become election issue?, The Toronto Star, 2003-JUN-20, Page A25.
"9 provinces will accept same-sex marriage. Lone holdout is
Alberta; the rest will comply with promised federal law," The Globe
and Mail, Toronto, ON, Page A1 (Front page)
Copyright © 2003 & 2005 by Ontario
Consultants on Religious Tolerance
Latest update: 2005-JAN-21
Author: B.A. Robinson