HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
The Federal government's "reference" to the
Supreme Court of Canada
the Ontario Court of Appeal determined that the federal marriage act
was in violation of Canada's constitution, called the Charter of Rights
and Freedoms. They ordered the Government of Ontario to start
issuing marriage licenses to same-sex couples immediately. This
ruling made marriage available
to all adult couples, both opposite-sex and same-sex. However, they had to
come to Ontario to obtain the license, to marry, and to have their marriage
On 2003-JUN-17, the federal government decided to accept the court's ruling
and to not appeal it to the Supreme Court of Canada. This committed the
government to create legislation that would legalize same-sex marriage (SSM) across
Canada. This decision stirred up a hornets' nest of
Perhaps in order to prevent future challenges to the new legislation by
religious conservatives, the federal government sent a "reference" to the
Supreme Court of Canada. A reference includes:
||A draft version of
the proposed legislation.
||A request that the constitutionality of the legislation be subjected to
a non-binding review by the court.
||A series of
If found to be constitutional -- either as originally written or with minor
changes -- the legislation would be submitted to Parliament for a free vote. As
the name applies, members of Parliament are then able to vote according to their
conscience and/or according to public opinion in their riding. Meanwhile,
cabinet ministers are always expected to vote with the government. This
contrasts with normal legislation, in which members are committed to vote as a
block according to their party's stand.
The Supreme Court ruling on the reference is currently expected in the fall
of 2004. This would probably delay the submission of legislation to Parliament
until sometime in 2005.
Events related to the "reference" sent to the Supreme Court of Canada
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."
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
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."
||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:
"Is the annexed Proposal for an Act respecting
certain aspects of legal capacity for marriage for civil
purposes within the exclusive legislative authority of the
Parliament of Canada? If not, in what particular or
particulars, and to what extent?"
"If the answer to question 1 is yes, is section 1 of
the proposal, which extends capacity to marry persons of the
same sex, consistent with the Charter of rights and
Freedoms? If not, in what particular or particulars, and to
"Does the freedom of religion guaranteed by paragraph
2(a) of the Canadian Charter of Rights and Freedoms protect
religious officials form being compelled to perform a
marriage between two persons of the same sex that is
contrary to their religious beliefs?" 5,6
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.
2003-DEC-18: New prime minister expands options:
A new prime minister, Paul Martin, took office on DEC-12, replacing Jean
Crétien as leader of the ruling Liberal
party. Martin reaffirmed on DEC-18 that gays and lesbians anywhere in
Canada who want to marry will not be discriminated against under
proposed new federal legislation. But, before finalizing the draft
legislation, his recently appointed justice minister, Irwin Cotler, will
augment the reference. The government will ask the Supreme Court of Canada to rule on whether a
Vermont-style civil union -- legislation that would give separate but
equal privileges to gays and lesbians -- would satisfy the equality
rights in Canada's constitution. Martin said that Canadians need a full
debate on the issue that involves the exploration of all constitutional
options before a final revision to the marriage act is voted upon. He
said in a CTV interview: "There must be a national debate in
Parliament where all sides of the debate will be heard. Once that debate
has taken place and all of the options have been looked at, we'll act."|
This essay continues below.
||2004-JAN-28: Federal government added a new reference to
the Supreme Court: The federal government added a fourth question to the
reference that they had sent to the Supreme Court in 2003. It asks:|
|"Is the opposite-sex requirement for marriage for civil
purposes, as established by the common law and set out for Quebec in
s.5 of the Federal Law - Civil Law Harmonization Act, No. 1 S.C.
2001 c.4, consistent with the Canadian charter for Rights and
Freedoms? If not, in what particular or particulars and to what
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."
||2004-MAY: Over two dozen interveners
involved in the reference: As of
2004-MAY, interveners in the reference before the Supreme Court of
Canada consisted of:|
||Various political and government agencies
departments, individuals, human rights and legal groups, etc:|
||The federal Department of Justice.
||The Attorney General of Quebec.
||The Attorney General of Alberta.
||Senator Anne Cools.
||Roger Gallaway, a Member of the House
||The Canadian Human Rights Commission.
||The Ontario Human Rights Commission.
||The Manitoba Human Rights Commission.
||The Canadian Bar Association.
||Mouvement Laïque Québécois.
||A number of conservative religious and
social groups, all of whom strongly oppose SSM:|
||The Association for Marriage and
the Family in Ontario, consisting of the Focus on the Family
(Canada) Association and Real Women of Canada.
||The Interfaith Coalition on
Marriage and Family, composed of The Islamic Society of North
America, the Catholic Civil Rights League, and the
Evangelical Fellowship of Canada.
||The Canadian Conference of Catholic
||The Church of Jesus Christ of
||Ontario Conference of Catholic
||Seventh-Day Adventist Church in
||A number of gay, lesbian, civil rights, and
liberal religious groups, all of whom favor SSM:|
||The Canadian Coalition of Liberal
Rabbis for Same-Sex Marriage.
||Metropolitan Community Church of
||Foundation for Equal Families.
||Canadian Civil Liberties
||Working Group on Civil Unions.
||Canadian Unitarian Council.
||United Church of Canada.
||Couples who have been involved in cases
before provincial courts:|
||"B.C. Couples" who consist of three
same-sex couples from British Columbia.
||The "Egale Couples" who consist of
Egale Canada Inc and five same-sex couples.
||A Québéc couple.
||Week of 2004-MAY-14: Anti-SSM brief submitted to Supreme Court:
The Interfaith Coalition on Marriage and the Family is a joint
effort by the
Evangelical Fellowship of Canada, the
Catholic Civil Rights League, and the
Islamic Society of North America.
Their main effort currently is to deny same-sex couples the right to
marry, and restore the definition of marriage to what it was prior to
2003-JUN, when the the Ontario Court of Appeals
ordered the Ontario Government to issue marriage licenses to
same-sex couples and register their marriages. |
They made a written submission the Supreme Court of Canada concerning the federal government's reference.
The "introduction and overview" section of their
brief maintains that:
||Religions have historically only
approved of marriage between one man and one woman.
||The institution of marriage predates
the creation of Canada and thus the government cannot change who is
eligible to marry.
||The government can could a parallel
separate but equal system of civil unions instead of allowing SSM --
a path that would be more acceptable to religious conservatives.
||SSM might result in future serious
damage to the culture that cannot be predicted at this time.
||Religious institutions might be
discriminated against if they continue to discriminate against
same-sex couples by refusing to marry them.
An analysis of the Coalition's brief is available.
||2004-OCT-6 & 7: Hearings held: The Supreme Court of Canada held
hearings on the government's references. Three days were scheduled, but
the task was completed by noon on the second day.
||2004-DEC-08: Supreme court released opinion: The Supreme Court of Canada released its non-binding
opinion on the federal government's references. It suggested that:|
||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.
The probable future path forward to legalize same-sex marriage
is described in another essay
Tonda MacCharles, "Canada to allow same-sex marriage," The Toronto
Star, 2003-JUN-18, Pages A1 (front page) and A22.
Tonda MacCharles, "Same-sex marriage backgrounder: Why Ottawa said
yes to making it legal," The Toronto Star, 2003-JUN-19, Page A4.
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:
Mike Murphy, "Minister of Justice announces reference to the
Supreme Court of Canada," Office of the Minister of Justice,
Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto
Star, 2004-JAN-29, Page A7.
Kim Lunman & Campbell Clark, "Ottawa considering testing same-sex
marriage definition," The Globe and Mail, Toronto ON, 2003-AUG-9, Pages A1
"Today's Family News," Focus on the Family, Canada, 2003-SEP-4.
Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto
Star, 2004-JAN-29, Page A7.
"Factum of the Intervener The Interfaith Coalition on Marriage and Family," Evangelical Fellowship of Canada,
http://www.evangelicalfellowship.ca This is a "pdf" file for which you may need software to view. It can be obtained free from:
Copyright © 2003 & 2004 by Ontario
Consultants on Religious Tolerance
Latest update: 2004-MAY-28
Author: B.A. Robinson