2003-JUN-17: Prime minister decides path forward: Prime Minister Jean Chrétien reported on CBC NewsWorld that the federal government would submit a reference to the Supreme Court of Canada.  ₁

An unnamed government source said that the decision by the Ontario Court of Appeal  "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." ₂

The Prime Minister also promised that the new marriage act would protect the rights of religious organizations to decide which couples they are willing to marry and who they will reject. 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. 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." ₃

2003-JUL-17: Government legislation completed and reference sent to Supreme Court: The federal government drafted legislation which would expand marriage across the country to include same-sex couples. The changes in law appear to be minimal:

Current references in law that define marriage as being between one man and one woman would be replaced by a new definition, which is identical to that found in the 2003-MAY-1 ruling of the Court of Appeal for British Columbia: . The draft bill states that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." 4,5

A new section would be included in the marriage act to affirm that churches and other religious groups can freely discriminate by refusing to marry any couple that does not meet their standards. The draft legislation states that: "nothing in this Act affects the freedom of officials of religious groups to refuse to conduct marriage ceremonies that are not in accordance with their religious beliefs." 5

The legislation was sent as a "reference" to the Supreme Court on 2003-JUL-17. According to the Office of the Minister of Justice, the government has asked the court for a non-binding ruling on three questions:

2003-AUG-9: Federal government may introduce civil union option: The federal government was reported to be considering revising the reference that it sent to the Supreme Court in July. They might add an additional question: whether the creation of a Quebec/Vermont system of civil unions for gays and lesbians, that would have the same rights, privileges and obligations as marriage, would be constitutional. The general consensus among constitutional experts is that separate but equal systems would be discriminatory and thus unconstitutional. ₇

2003-SEP-4: Supreme court sets a date for hearing: The Supreme Court of Canada tentatively selected 2004-APR-16 to hear arguments about the reference. According to CanWest News, "The decision means the divisive issue would be fresh in the minds of voters if a federal election is called next spring." Many conservative religious groups are planning to intervene in the case. The province of Alberta is intervening on the negative side; Quebec is intervening to protect its legislation which created civil unions but denied marriage to same-sex couples. British Columbia filed notice of intent to intervene, but hasn't decided whether to actually become involved. ₈ [The new reference question is expected to delay the hearings until the fall of 2004.

The most senior courts in Ontario and British Columbia have ruled that the present federal law, which restricts marriage to opposite sex couples, is unconstitutional because it denies equal rights and freedoms to same-sex couples. But this reference question, the Supreme Court is asked to affirm or overrule those lower court decisions. Presumably, if the court finds that some other arrangement other than full marriage is constitutional, they will convey this to the government. It is certain that more members of parliament would favor a law granting same-sex couples access to some sort of civil union arrangement, rather than full marriage rights. The official word from the government is that this new references is motivated by an honest desire to offer comfort to Canadians who oppose SSM. Justice Minister Irwin Cotler stressed that the government continues to support same-sex marriage. He said: "We are reaffirming our position in support of same-sex marriage. It's unwavering....no retreat....There is a divided opinion and therefore we have to be respectful of the sensibilities in this country...We're [listening to] those who feel that by not putting that question, we have prejudiced the outcome of this court process.... We don't want it to linger so that people will always say, you know, if you had put that question maybe you would have had a different debate, and if you had a different debate, you may have had a different outcome....The [court's] answer [will be]... very interesting. It's very important for the debate in the House of Commons." The government also asked the Supreme Court of Canada to delay hearings on the proposed legislation and the references from the Spring to the Fall of 2004. Reactions to the reference were mostly negative:

	Svend Robinson, an openly gay member of parliament said: "It's quite clear that the last thing that Paul Martin wanted in the middle of an election campaign was a bitter debate about same-sex marriage. The decision is an attempt to delay, to postpone, to put off this debate on same-sex marriage." He called the new reference a "back-door appeal" of the Ontario and British Columbia court decisions.
	Chales McVety, of the Canada Family Action Coalition -- a religiously conservative group opposing SSM, allegedly said that the government is denying citizens the right to debate the issue during the federal election expected during 2004-Spring. He said: "It is not only hypocritical but cold and callous in its political intent."
	Pat O'Brien, a liberal member of parliament who opposes SSM said: "I'm hopeful that the top court in this country will uphold probably the most important institution in this country, and that's marriage as we know it." 9

	The Government of Canada alone has the power to decide whom may marry.
	The government's proposed legislation which would allow both same-sex and opposite-sex couples to marry is constitutional.
	Clergy can discriminate against same-sex engaged couples by refusing to marry them in "sacred space."

They successfully dodged Prime Minister Paul Martin's question whether the existing marriage act is unconstitutional. More details.