Same-sex marriges (SSM) in Canada
Concerning the freedom of religious
to discriminate against SSM
"I'll eat my clerical shirt if you can show me one example in the
last 50 years of a provincial jurisdiction ever taking a clergyman to
court because he refused to marry somebody." Ref. Garth Bulmer,
Anglican priest of St. John's parish in Ottawa, ON, 2005-FEB-01. 16
"I think most legal experts recognize that the courts will not
force the [religious] institution itself to perform same-sex
marriages...the real issue is the broader ramifications...What we are
seeing is a consistent pattern by courts and human rights commissions
that whenever equality rights and religious rights collide, equality
rights trump." Vic Toews, Conservative member of parliament and
justice critic. 16
What is the issue?
In many of the world's democracies, a wall of separation exists between
church and state. In the U.S., this is enforced by the
First Amendment of the federal Constitution. In Canada, it has been an
evolving cultural tradition.
Normally, the governments and organized religions live in separate worlds.
||Some life events are purely secular in nature: e.g. when a baby is born,
its birth is registered with the state or province.
||If a child or adult is baptized in a church, the ritual is purely
religious in nature. There is no secular significance to the act as far as the
state is concerned.
But marriage is different. Involvement by the church and state can be
||Marriage normally requires that the couple purchase a marriage license
from the government.
In some political jurisdictions, the couple can arrange for the "reading
of the banns." This is a repeated announcement made during church services
before the marriage is to take place. A license is not required.
||The couple can elect to be married in a civil ceremony by a judge or
commissioner authorized to perform weddings.
||The couple can elect to have a religious wedding, if they meet any
additional requirements that a chaplain, imam, minister, pastor, priest,
priestess, or rabbi might establish.
||The civil or religious person who officiates at the wedding must then file
marriage documents with the government.
||The state or provincial government then records the marriage in its data
||The married couple then receives on the order of 1,500 benefits, rights
and obligations from their state/provincial or federal government.
The term "marriage" thus has a different meaning within the religious
and secular sphere. In most jurisdictions, any female can marry any male,
assuming that they are old enough and not too closely related. As of 2005-JAN,
in six Canadian provinces and one territory, any two persons can
marry, subject only to age and consanguinality. But religious organizations
often refuse to marry a couple even though they possess a valid marriage
license. We have found twelve grounds that faith groups have
given for refusal; there are probably more.
As of 2005-JAN, only the most liberal faith groups will marry same-sex couples.
In Canada, this includes the United Church of Canada, some Reform Jewish
congregations, and those congregations affiliated with the
Unitarian Universalist Association. There is an potential conflict between the freedom of religious organizations to
discriminate against same-sex couples, and the right of such couples to marry.
Some conservative faith groups are worried that their clergy may eventually be charged with
violating a civil rights code by refusing to marry same-sex couples.
It is not obvious how this conflict in freedoms will evolve in the future.
There is a clash between:
The fundamental right of loving, committed same-sex couples to
marry, as many courts in Canada have ruled is inherent in The Charter
of Rights and Freedoms, Canada's constitution, and
||A second fundamental right -- that of religious freedom. Faith
groups have traditionally been guaranteed
autonomy. They are free to decide their own beliefs and rules of
behaviors for their membership. Some religious institutions will want to
discriminate on the basis of race, gender sexual orientation and many
other grounds in membership, ordination and marriage. Many faith groups will
want to continue to refuse to marry same-sex couples.
There is little concern for the immediate future for those clergy who
refuse to marry same-sex couples. But there has been apprehension among
religious conservatives that the public might eventually consider homophobia -- discrimination
against persons with a homosexual orientation -- as despicable as
racism and sexism are today. Who knows what the future might hold?
One good indicator of the supremacy of religious groups to discriminate is
seen in interracial and interfaith marriages. Many religious groups have refused to marry
couples of different races or religions in the past. Some still do. If and when the first
clergyperson is charged under a Human Rights code for refusing to marry a man
and woman of different races or religions, then other clergy may have reason to fear that
they may be targeted for refusing to marry a same-sex couple. Another indicator
may be if and when a religious institution is charged under a Human Rights code
for refusing to consider any women for ordination.
It might be a groundless concern:
Some observers argue that there is no possibility that faith groups will charged with civil rights abuses if they refuse to marry
same-sex couples. They argue that religious institutions have always been able
to deny marriage to couples who do not meet their requirements. For example:
The author recalls an incident in Toronto on a Saturday in the mid
1950s, when an exhausted young couple entered the Unitarian
Congregation sanctuary bearing a marriage license. They had been
trying to locate a clergyperson in the city who would be willing to marry them.
They had no success. I introduced them to the Unitarian minister who
interviewed them, convinced himself of their sincerity, and agreed to
perform the ceremony. All other other churches that they had visited had
rejected them because they were an inter-racial couple.
||Some churches have strict rules concerning consanguineous marriages.
i.e. opposite-sex marriages in which the bride and groom are too closely related.
Some, for example, will not marry first cousins, even though such
marriages are allowed in some political jurisdictions.
Some faith groups refuse to marry inter-faith couples -- e.g. some
Protestant churches refuse to marry their member to a Hindu.
Some refuse to marry intra-faith couples -- e.g. a Roman Catholic
and a Protestant.
||Some refuse to marry a couple in which one or both parties are affiliated with another denomination,
||Some have refused to marry interracial couples; some may still
||Some refuse to marry couples who are living together unless they
agree to be celibate until they are married.
||Roman Catholic priests refuse to marry couples in which one or both members have
received a civil
divorce, unless that individual first has obtained an annulment from the
||Many clergy will refuse to marry couples who they feel are
insufficiently mature, or who have a flippant attitude towards marriage.
||The Roman Catholic church has refused to marry at least one male
paraplegic because he was physically unable to procreate.
||Some clergy will not marry a couple if they cannot pay for the
||Some refuse if the couple will not take part in a marriage
We have not been able to find instances where charges were brought against
religious organizations because they have refused to marry couples on any of the above
grounds. One might argue that there is little chance that a charge will be
placed in the future because of a group's
refusal to marry a same-sex couple. The Ontario Human Rights Code
specifically exempts religious organizations from its provisions. Thus, religious
organizations are free to discriminate on the basis of gender, sexual
orientation, or any other factor with impunity. If they were not given immunity
then human rights tribunals would be buried by cases of women, gays and lesbians
who have been denied ordination by religious groups. Similar exemption clauses
are found throughout North America.
On 2004-DEC-08, the Supreme Court of Canada
released its rulings on the Federal Government's reference questions.
They partly settled the question. They advised that clergy can legally
continue to discriminate in selecting which engaged couples they will marry.
However, this immunity from prosecution under human rights legislation does
not necessarily extend to some of the auxiliary activities of
religious groups which are associated with marriage.
It might be a valid concern:
The term "homophobia" has different meanings for different people. We define it here as the
desire to oppress and limit the personal rights and freedoms of gays and lesbians --
including the right to marry. In decades to come, if present
trends hold, homophobia will be considered as reprehensible as racism is today.
Courts are sensitive to shifts of beliefs within society. Their intolerance of
homophobia may develop to the point where they start to rule against homophobic
religious organizations. They might not differentiate between the provision of a
ritual by a faith group and the provision of a commercial service by a
To our knowledge, religious exclusion clauses which are imbedded in many civil
rights legislation have never been examined by the Supreme Court of
Canada. They might eventually be found to be unconstitutional.
Consider an event that happened over a decade ago in Canada. A store
providing printing services to the general public refused to print letterhead
for a homosexual advocacy group. The group complained to the
Ontario Human Rights Commission. The printer was found guilty of
discriminating against a potential client on the basis of his sexual
orientation. A board of inquiry ordered him to pay $5,000 in damages. Analogies
could be drawn by the courts between a clergyperson refusing to marry a same-sex
couple. More details.
If Canadian culture evolves to the point where
homosexuality is generally accepted as a normal, natural sexual
orientation for a minority of adults, one could see how very similar
arguments to those in this printing case could be argued before a court
in defense of a gay or lesbian couple who a clergyperson refused to
The same-sex marriage "reference" sent to the Supreme Court of Canada:
In mid-2003, the governing federal Liberal party in Canada was faced with
unambiguous decisions by three senior provincial courts which called on the Federal government to legalize same-sex marriage.
The House of Commons' Justice Committee very narrowly passed a resolution to recommend that the government accept
the court rulings. Prime Minister Jean Chretien promised that a new marriage act would be drafted to implement SSM in the
country. He said that the proposed legislation would protect the rights of churches, mosques, synagogues, and other religious
congregations to discriminate against individuals on any basis in the provision
of a marriage ceremony. He said:
"... we'll be proposing legislation that will protect
the right of churches and religious organizations to sanctify marriage as they
define it. At the same time, we will ensure that our marriage legislation
includes and legally recognizes the unions of same-sex couples." 6
On 2003-JUL-17, the federal government sent a "reference" to the Supreme Court
which included the proposed legislation and a specific question: Whether the
freedom of religion clause in the Charter of Rights and Freedoms -- Canada's constitution
-- allows religious groups to refuse to marry gays and
lesbians without threat of lawsuit. 7,8
||Unknown date:Egale Canada, a gay and lesbian positive
"Clergy are protected by the Charter's guarantee of freedom of
religion. Religious institutions set their own rules for marriage. The
Catholic Church won't marry divorced persons. Many religions won't
permit inter-faith marriages. Once same-sex couples can marry, each
religion will still be free to set its own rules. The B.C. Court of
Appeal said: 'The equality rights of same-sex couples do not displace
the rights of religious groups to refuse to solemnize same-sex marriages
which do not accord with their religious beliefs. Similarly, the rights
of religious groups to freely practise their religion cannot oust the
rights of same-sex couples seeking equality, by insisting on maintaining
the barriers in the way of that equality'."
"The federal government is asking the highest court in the land
to confirm, once and for all, that religious freedom is fully protected.
This will completely address the concerns raised by those opposing this
||2003-JUN-10: ChristianWeek, Canada's national Christian
newspaper, described concerns that a number of conservative Christian
denominations and para-church organizations had expressed about SSM:
"Churches that do not allow gay marriages could be punished (e.g.
lose their charitable status);
||The ability to grant marriage licences could be conferred only upon
churches and ministers who promote an inclusive new definition of
Charitable organizations who support the definition of marriage
could be penalized for discriminatory language, and lose their
School curriculum could not differentiate between homosexual and
heterosexual unions in marriage." 11
||2003-JUL-3:Beliefnet published an article by the Religion
News Service on the status of SSM in Canada. They reported that church
officials had differing views on SSM. Liberal denominations were in favor:|
Officials of the United Church of Canada and the Anglican Church of
Canada, the two largest Protestant Christian denominations in Canada and
the most liberal, were confident that the federal government would not
pressure clergy into ending discrimination against same-sex couples.
Jackie Harper spokesperson for the United Church said: "Constitutionally
in Canada, religious rights are guaranteed that no one will be required to
do something against their religious beliefs."
Karen Hamilton, general secretary of the Canadian Council of
Churches, said that clergy will continue to have the right to refuse
to marry couples. Their religious freedom will be protected under the new
Conservative Christian groups were more concerned:
Bruce Clemenger of the conservative Evangelical Fellowship of
Canada said that they were "deeply disappointed" with the
government's decision to accept the rulings of the three provincial courts
and legalize SSM. He said: "We are deeply concerned that the effect of
the redefinition will be to begin a process of marginalization for many
churches and their clergy who currently participate in the civil
registration of marriage....As the right of religious exemption from the
court's ruling was not addressed in the court's decision, we will watch
carefully the legislation that will address religious freedom concerns."
Roman Catholic Archbishop from Vancouver, Adam Exner, anticipates that
the presence of SSM will put pressure on his denomination to marry all
committed couples -- both opposite gender and same gender. He said: "It
won't be easy to deal with. We'll be the odd man out." He said that he
will take Prime Minister Chretien on his
word that priests won't be required to marry same-sex couples. 13
2003-JUL-25: A Hamilton ON newspaper quoted
a number of Members of Parliament on the topic of SSM. They reported: "Stan
Keyes, Liberal MP for Hamilton West said he wants to be sure the bill
balances religious freedom not to perform same-sex marriages with the
rights of gays to marry. 'We're trying to make everyone happy,' Keyes
said. 'There is no reason why we can't respect rights on both sides of the
2003-AUG-21: Deputy Prime Minister John Manley told the Globe and Mail
newspaper that "...at the same time [we're] protecting the rights of faith
communities to define marriage as they are comfortable with doing."|
2003-AUG-21: At a rally on Parliament Hill,
Rev. William Oosterman of the Christian Coalition of Canada suggested that "religious
persecution" has arrived in Canada. He said that the legislation's
clause protecting the right of religious groups to discriminate against
same-sex couples might not
withstand a constitutional challenge. He said: "The Charter of Rights will not
protect you. It will be used as a witness against you as people of faith."
2003-SEP-2: A coalition of religious and social conservatives
attacked SSM. Charles McVety, president of Canada Christian College,
said that the federal Liberal government has no right to breach "the
separation of church and state and attempt to redefine a religious term as
sacred as marriage." He has been joined by one socially conservative group,
REAL Women, and several conservative religious groups: Quebec's
francophone evangelical Protestant community, the Canada Family Action
Coalition and a clerical group called the Evangelical Association.
They expressed concern concerned that the government will eventually force
churches to perform SSMs against their will. 10
In a interview with CBC Radio, Prime Minister Paul Martin said that he would use the
Constitution's "not withstanding clause"
in the unlikely event that the Supreme Court of Canada ruled that
religious institutions must perform same-sex marriages. This clause
allows the government to pass temporary legislation that violates
constitution. The legislation expires automatically after three years
and must be renewed. This would be the first instance of
the clause being used at the federal level. Martin said that there are
very few situations in which he would use the not withstanding clause.
One would be if it were needed to preserve the right of religious groups
to continue to discriminate against gays and lesbians. 15
The Supreme Court's ruling on the federal government's reference questions:
On 2004-DEC-08, the Supreme Court of Canada released its ruling on the Federal
Government's reference questions. They determined that clergy can continue to pick and choose whom they will marry
within their "sacred space" without fear of being challenged in
the courts under human rights legislation. This settled the matter, as far
as the actual marriage ceremony in a cathedral, church, mosque, synagogue,
etc. is concerned. Imams, ministers, pastors, priests, etc. can refuse to
marry a same-sex couple there and not be in danger of charges of
discrimination under human rights codes.
However, this does not settle all of the concerns of
religious conservatives. Religious institutions perform many functions that
are associated with marriages that do not involve an actual marriage
ceremony in their sacred space. There are some gray areas that may or may
not be covered by the Supreme Court's ruling. What might happen if a
same-sex engaged couple:
Arranges with a liberal clergyperson to marry them, and
then tries to rent the use of a conservative church's hall or church
grounds as the location for their marriage?
Asks to be married by a conservative clergyperson in a
non-religious setting remote from the officiator's "sacred space" --
e.g. in a conservation area or city hall?
A same-sex couple arranges to be married in a civil
ceremony and attempts to rent a conservative church's hall for the
Attempts to join a conservative church's marriage
Will the ability of religious groups to discriminate be protected by the religious freedom clauses in the
Rights and Freedoms? These questions will undoubtedly be raised by at
least one same-sex couple in the future -- probably in the form of a lawsuit.
"Equality Coalition to present arguments in Brockie case,"
2001-DEC-7, Egale Canada, at:
"Man appeals fine for rejecting 'gay' client. Toronto printer
refused to produce promotional materials," WorldNetDaily,
"Freedom of conscience debated in Ontario. Christians support right
of printer to refuse homosexual group's business," WorldNetDaily,
"Company ordered to provide printing services to gays and
lesbians," CGLA, 2000-MAR, at:
Janet Epp Buckingham, "Canadian Religious Freedom Alliance Makes
Argument in Religious Conscience Case," Christian Legal Fellowship,
Colin Nickerson, "Canada will amend federal law to allow same-sex marriages," The Boston
Globe, 2003-JUN-18, at:
"Same sex marriages bill goes to supreme Court. Government asks
for Supreme Court opinion on draft bill," Canada Online, at:
Alexander Panetta, "Same-sex legislation expected," Canoe.ca,
"Thousands rally in defence of marriage," Today's Family News,
Focus on the Family, Canada, 2003-AUG-26.
Tonda MacCharles, "Gay-marriage foes plan prayer protests,"
Toronto Star, 2003-SEP-3, Page A17.
CW Staff, "Ottawa favours same-sex marriage," Vol. 17, #6,
- "Bryden opposes same-sex marriage; Many local Liberals sitting on the
fence," The Hamilton Spectator, Hamilton, ON, 2003-JUL-25.
Douglas Todd, "Canada's Churches Divided on Rights Regarding Same-Sex
Marriages," Religion News Service, 2003-JUL-3, at:
"Equal Marriage for Same-Sex Couples: Affirming Religious Freedom,"
Egale, 2003, at:
"Same-sex debate urged: PM seeks study by Supreme Court," The
Toronto Star, 2003-DEC-19, Page A6.
"Sean Gordon, "Churches, groups wade in. Strong reactions from both sides to
divisive bill," The Toronto Star, 2005-FEB-2, Page A7
Copyright © 2003 to 2009 by Ontario Consultants on Religious
Originally written: 2003-AUG-22
Latest update: 2009-FEB-28
Author: B.A. Robinson