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Federal government decision to legalize same-sex marriages

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Quotations relating to the implementation of same-sex marriage (SSM):

bullet "There is an evolution of society." Prime Minister Jean Chrétien. 1
bullet "We're talking about essential freedoms here." Justice Minister Martin Cauchon. 1

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Federal government throws in the towel. It decides to implement SSM:

Media coverage in mid 2003-JUN concentrated on what the federal government's reaction would be to the 2003-JUN-10 unanimous ruling by the Ontario Court of Appeal. This was the ruling that made marriage immediately available to all adult couples, both opposite-sex and same-sex, but only within the province of Ontario.

The government was also faced with a more immediate concern: the unanimous 2003-MAY-2 decision by the British Columbia Court of Appeal. That ruling stated that: "Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment." The deadline to appeal the British Columbia court ruling was 2003-JUN-30. If the federal government hadn't appeal the decision by that time, they would be forced to accept the ruling as valid.

Subsequent developments:

bullet 2003-JUN-12: Justice Committee recommends acceptance of SSM: The House of Commons' Justice Committee held a secret meeting. According to the Toronto Star: "Emotions on the justice committee ran high yesterday after months of hearings on the issue and days of closed-door meetings, where members have tried unsuccessfully to hammer out a report." 2 Svend Robinson, a Member of Parliament (MP) from New Democratic Party, who is gay, introduced a motion recommending that the government not appeal the JUN-10 decision of the Ontario Court of Appeal. According to Focus on the Family Canada:
bullet Eight members: (five Liberal members, one NDP member and two members from the Bloc Québécois) supported the motion.
bullet Eight members (four each from the Liberal and Alliance parties) were opposed.
bullet There was no representative present from the Conservative party. 2

However, the Ottawa Citizen newspaper stated that "MPs from all parties" were present at the meeting, presumably including the Conservative party.

Both information sources reported accusations that the Liberal party had stacked the committee at the last minute with MPs who were sympathetic to same-sex marriage. The Ottawa Citizen reported that, "Two Liberal MPs who are not on committee -- Sue Barnes and Anita Neville -- said they were called at the last minute to hurry to the meeting, but would not say who sent them. They replaced two other Liberal MPs: Derek Lee who wants the government to continue fighting gay marriage in the courts and Paul Macklin, the parliamentary secretary to Mr. Cauchon and his representative on the committee." 2

If these accusations are correct, then it would seem that the Liberal government favored acceptance of the court decision and intentionally packed the committee to get the vote that it wanted to proceed.

Committee chairperson Andy Scott broke the tie by voting in favor of the motion. However, the committee's advice that the government not appeal the ruling to the Supreme Court comes with a message: that the members of the House of Commons are hopelessly divided on the matter. Scott said that he believes that it is Parliament's responsibility to change the law, not the courts. According to Egale Canada, "Committee Member Derek Lee (who would have voted against the motion if he had arrived just seconds earlier) entered the room just as the Chair was casting the deciding vote." 3

Derek Rogusky, spokesperson for the Fundamentalist Christian agency Focus on the Family Canada commented, "It seems the MPs felt pressure as a result of the court ruling, and failed to follow through on their promises to protect marriage. With a vote this close on an issue of this magnitude, it is clear Parliament as a whole must make the final decision." 2

Svend Robinson said: "This is the first time in the Canadian Parliament that a committee has spoken and said that gay and lesbian people should be entitled to equality...It's long overdue." 4

Alliance Member of Parliament, Vic Toews, issued a statement saying: "It is unfortunate that the majority of this Committee has simply decided to allow the courts to determine how this important social issue should be resolved." 2

bullet 2003-JUN-12: Cabinet ministers respond to committee decision: Members of the Liberal cabinet usually project a united front to the country. However, cabinet solidarity appeared to crack over SSM:
bullet Industry Minister Allan Rock, a former justice minister, solidly backed the proposal that the government allow the court ruling to stand. He said "I think we have the opinions of [three] senior appellate courts that make it clear, and besides we have our own responsibility, quite apart from the courts, to form our own judgments on these issues as political leaders...Our own conclusion is buttressed by the courts, who have now said clearly that equality requires that we recognize same-sex marriages...Part of the responsibility of being in public life is to take positions on controversial issues. The [Liberal] party has divergent views; the [Liberal] caucus has divergent views; but that ought not to stop us from doing what is right." 3
bullet Justice Minister Martin Cauchon pleaded for more time to study the issue. He said that he would have nothing new to say until after a cabinet retreat on JUN-17. 5
bullet 2003-JUN-16: Justice Minister recommends path forward: CBC NewsWorld reported a rumor this evening that Justice Minister Cauchon has decided to not appeal the decisions of the three provincial appeal courts to the Supreme Court of Canada. According to one government source, Cauchon called many cabinet ministers on the eve of the caucus meeting. "There were a lot of ministers who didn't need persuading. It became quickly evident there was not much appetite for an appeal" to the Supreme Court. He decided to make three recommendations suggestions to the federal cabinet on JUN-17:
bullet To not appeal the decisions of the three appeal courts to the Supreme Court.
bullet To modify the marriage act to allow same-sex couples to marry.
bullet To send a "reference" to the Supreme Court, to check the government's proposed changes in legislation. This would take the form of a draft version of the proposed legislation for review by the court, accompanied by some specific questions.
bullet 2003-JUN-17: Prime minister announces path forward: At a secret cabinet meeting in the Lester B. Pearson building, most ministers urged that the government accept the rulings of the Ontario and BC courts. Apparently nobody argued in favor of the status quo -- keeping marriage between one man and one woman. They suggested that the government introduce legislation to Parliament which would change the marriage act so that same-sex couples would be able to marry anywhere in Canada. They figured that there would be complaints from some Canadians, but that the dust would settle before the next anticipated federal election. Legal challenges would have been inevitable. However they would have taken years to reach the Supreme Court and be resolved. It is rumored that the ministers were split 60 to 40% over this issue, with the minority favoring the submission of a reference to the Supreme Court. Prime Minister Jean Chrétien sided with the minority. It was ultimately decided that the government would:
bullet Draft a proposed revision to the marriage act which would allow SSM. The draft would include protection for religious leaders who refused to marry same-sex couples on religious grounds.
bullet Submit the legislation in the form of a reference to the Supreme Court of Canada who would be asked to give a non-binding ruling on its constitutionality.
bullet Make any needed changes to the draft legislation.
bullet Submit the legislation to Parliament for a free vote.

An unnamed government source said that the decision by the Ontario appeal court "how they nailed it, how it was framed, how it was written" was a pivotal point for everyone in the caucus. It was a clear indication from the court they didn't want to screw around with it any more....Asking [the Ontario appeal court] to hold off implementation requires convincing evidence of 'irreparable harm.' You have to basically say the sky's going to fall -- It's a hard case to make. You're not likely to get it." 7

In the Canadian Parliament, members are generally expected to vote according to the party line. However, on ethical matters, like abortion and SSM, they are sometimes allowed to vote according to their conscience in a "free" vote. However, there remains considerable pressure on government members to vote in favor of the legislation, and for the members of the opposition parties to vote against it. A member's future political career might be profoundly influenced by their vote. Meanwhile, cabinet ministers are always expected to vote with the government.

Prime Minister Chrétien reported on CBC NewsWorld that the federal government would not appeal the British Columbia and Ontario court decisions to the Supreme Court. He said that: "we'll be proposing legislation that will protect the rights of churches and religious organizations to sanctify marriage as they define it." Traditionally, churches, synagogues, and other religious groups have been free to discriminate against individuals on the basis of race, gender, sexual orientation, etc. in matters of membership, ordination and marriage. They will continue to have this freedom in the future. The Prime Minister continued: "At the same time, we will ensure that our marriage legislation includes and legally recognizes the unions of same-sex couples." 1" When asked by a reporter if the term "union" meant "marriage," he apparently found it difficult to actually use the "M" word. He said, ambiguously: "There is evolution in the society , and according to the interpretation of the courts, they concluded these unions should be legal in Canada." 6,9

bullet 2003-JUN-18: Public hearings declared farce: Liberal Member of Parliament Pat O'Brien was one of the MPs who took part on the Justice Committee's sampling of public opinion. Their report was not quite ready to be published at the time that the Prime Minister and the rest of the Liberal caucus decided to proceed with same-sex legislation. O'Brien said: "I suspect it was a farce all along. The justice minister had his mind made up and he tried to engineer the result."
bullet 2003-JUN-28: Suggestion for civil unions, not marriage: Some Liberal members of Parliament were urging the federal government to create a parallel system of civil unions, similar to that found in Vermont, instead of widening the current definition of marriage to include same-sex couples.  Justice Minister Martin Cauchon had earlier referred only indirectly to enshrining in law "the definition as recognized by the courts." One unnamed senior government source said "I think that when you look at the Ontario Court of Appeal decision it's very clear about what violates the Constitution and what needs to be done." Another source said: "It will be a [re]definition of marriage that we're talking about, not some new beast...You know what the court would say to that." The draft legislation is expected to be sent to the Supreme Court of Canada during 2003-JULY for an advisory, non-binding, opinion on its constitutional validity. The text will include a section that will explicitly state "the fact that marriage, or the civil marriage of gay couples does not in any way impinge on the freedom of religions to celebrate marriage as they see fit." Thus, religious institutions will be able to discriminate in marriage on any grounds that it believes to be in accordance with its beliefs. 8 Most will, at least initially, refuse to marry gay and lesbian couples. This is in keeping with rules that various religious groups have followed in the past. There have always been instances in which church laws on marriage were more restrictive than the federal laws. For example:
bullet Some  churches refuse to marry first cousins, even though the federal marriage act permits this.
bullet The Roman Catholic church has refused to marry paraplegic grooms because they were incapable of sexual intercourse, and thus could not impregnate his bride.
bullet The Roman Catholic church regards a marriage as only being valid if the spouses plan to try to have children.
bullet The author recalls an incident in the mid 1950s in Toronto, ON, where an exhausted young couple appeared at the doors of a Unitarian Congregation with a marriage license seeking a clergyperson to marry them. Many Christian clergy in the city had been already refused to marry them because they were a mixed-race couple. After an interview to confirm their sincerity, the Unitarian minister agreed to marry them.

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Initial reactions to the government's decision to legalize SSM

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  1. Colin Nickerson, "Canada will amend federal law to allow same-sex marriages," The Boston Globe, 2003-JUN-18, at:
  2. Janice Tibbetts "Do not appeal same-sex law, Cauchon told. All-party committee vote breaks impasse, backs 'monumental' ruling," The Ottawa Citizen, 2003-JUN-13, at:
  3. "Egale Action Update: On to Cabinet!," Egale Canada, 2003-JUN-15.
  4. "Today's Family News," Focus on the Family Canada, 2003-JUN-13 to 15.
  5. Chantal Hebert, "Opinion: Liberals dither on gay unions," The Toronto Star, 2003-JUN-13, Page A23.
  6. Tonda MacCharles, "Canada to allow same-sex marriage," The Toronto Star, 2003-JUN-18, Pages A1 (front page) and A22.
  7. Tonda MacCharles, "Same-sex marriage backgrounder: Why Ottawa said yes to making it legal," The Toronto Star, 2003-JUN-19, Page A4.
  8. Tonda MacCharles, "Same-sex law to be clear: It's marriage. Liberals to push beyond 'civil unions.' Draft bill to protect religious freedom," The Toronto Star, 2003-JUN-28, Page A1 (the lead article on the front page).
  9. Tonda MacCharles, "It was an issue of rights: Ottawa's draft bill to legalize same-sex marriages followed a bumpy road out of Jean Chrétien's cabinet room," The Toronto Star, 2004-OCT-2, Pages H1 & H4.

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Copyright © 2003 & 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-OCT-3
Author: B.A. Robinson

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