HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
An analysis of the submission by the Interfaith
Coalition on Marriage and the Family to the Supreme Court of Canada
During the week of 2004-MAY-14, the Interfaith Coalition on Marriage and the Family
submitted a brief as an intervener before the Supreme Court of Canada. 1
The brief dealt with a "reference" on same-sex
marriage (SSM) which had been sent to the court by the Government of
Canada. The Coalition is a joint effort of three conservative religious groups:
Evangelical Fellowship of Canada, the
Catholic Civil Rights League, and the
Islamic Society of North America.
The three groups strongly oppose expanding the definition of marriage in
Canada to include same-sex couples.
The main current effort of the Coalition currently
appears to be to preserve marriage in Canada as it was defined prior 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.
An analysis of the brief follows:
The "introduction and overview" section:
This section of their brief makes some interesting statements:
||Marriage as primarily a religious institution: That is currently
true. However, many couples now view it as a secular institution and are
married by a judge or marriage commissioner instead of by a clergyperson.
The percentage of persons in North America who no longer identify themselves
with a religious faith is growing rapidly.|
||Marriage has existed for millennia: This is certainly accurate.
All known societies recognize committed couples in some way. But they differ
on which couples they allow to marry.
Prohibitions have been based on tribal membership, race, religion,
fertility, disability, developmental handicap, sex and status (e.g. slave or
||All major religious faiths have always defined it as a union of one man and one woman: This is not
accurate. The Bible records that many leaders of ancient Israel were in polygynous relationships. For example:
David had many wives, Solomon had 700, and Abijah had 14. From the historical record, Herod the Great (73 to 4 BCE) had
nine wives. The Church of Jesus Christ of Latter-day Saints have
promoted polygynous relationships, although they at least temporarily
suspended the practice in the late 19th century. It is a large denomination
with over ten million members. The government of British Columbia allows
Mormons to practice polygyny there today without interference.|
Within Islam, a marriage is restricted to one man and one woman. However,
most Islamic states and the religion of Islam itself, permit a man to marry
up to four wives. Many states where Islam is in a majority, permit temporary marriages for men only.
Within Canada clergy have recognized same-sex couples with union or marriage
||The United Church of Canada, the
Metropolitan Community Church, and one diocese of the
Anglican Church of Canada.
||The Reform Jewish tradition.
||The Canadian Unitarian Council.
||Wiccan and other Neopagan individuals and covens.
There is some evidence that same-sex
couples were married in ancient Egypt, that some Christian denominations
have sanctified such unions in Europe during previous centuries, and that
some aboriginal groups recognized same-sex unions.
Even if a near consensus existed among faith groups to ban SSM, many
civil libertarians believe that elementary human rights, such as the right
to marry, should be universal and not be subjected to majority opinion.
||Denying SSM does not violate the Charter of Rights and Freedoms:
The Coalition claims that "the heterosexual nature of
marriage..." does not violate the Charter of Rights and Freedoms,
Canada's constitution. This is an interesting point of law that the
Court is certain to comment on. However, the brief confuses same-sex and
opposite-sex marriage with homosexual and heterosexual marriage. All
marriages between persons of the opposite sex are not necessarily
between two heterosexuals. One or both spouses may be bisexual -- attracted to
both men and women. One or both might be
persons with a homosexual orientation who are entering an opposite-sex marriage,
perhaps to satisfy economic, companionship, or parenting needs, but without
any feelings of sexual
attraction for their spouse.|
||The civil union option: The
government could continue to deny same-sex couples the right to marry, but create a system of separate
but equal system of civil unions instead, of the type created
in Quebec and Vermont, and California.
A number of senior courts in North America have ruled that such unions are
separate but not equal.|
||Damage to society: Allowing same-sex couples to marry may have a massive effect on
society that is currently unpredictable and may well be quite harmful.
Their concern may be groundless. Focus on the Family Canada's web
site describes many benefits to marriage
that would seem to apply to both opposite-sex and SSM. So the overall
effect of SSM can be expected to be positive for the same-sex spouses,
for their children, and for society. |
||Threats to religious groups: Conservative religious groups are concerned that their clergy will
be required by law to perform same-sex marriages and/or that "regulatory and
professional governing bodies" will discriminate against them because they discriminate against same-sex couples. They also
fear that religious
groups might be
sanctioned by human rights organizations. |
This essay continues below.
Rejection of SSM is integral to four faith traditions:
The Coalition brief discusses how four religions and faith groups view marriage. Although
they only represent three religious traditions, they discussed conservative and
orthodox Judaism as well.
All members of the Coalition believe that continuing to allow same-sex couples
to marry is not simply an expansion of the institution of marriage mainly
affecting same-sex couples. Rather, it is "fundamentally changing"
marriage for everyone. They feel that God created marriage long before states
existed, and that they have a right to insist that the state not "radically
||Roman Catholic Church:|
||Marriage was created by God before governments existed.
||Governments have an obligation to recognize God's form of marriage
and no other.
||As stated in the Catechism of the Catholic Church (#2358) "every
sign of unjust discrimination" against persons with a homosexual
orientation is to be avoided. The important word here is "unjust."
The church differs from the Canadian Charter of Rights and
Freedom. It teaches that there are certain
forms of discrimination against gays and lesbians which are just and in
||"Catholics are concerned that the proposed redefinition of
marriage would 'necessarily exclude us from our own institution as a
result of our religious faith and traditions'."
||A "universal and unifying feature of Islam globally" is that
marriage is restricted to a man and a woman. "The Islamic personality
of each person is incomplete until they marry" a person of the
||Not mentioned is the fact that Islam permits a man to marry up to
four women, or that some Muslim men are permitted to enter into
||The brief states that: "Islamic tradition accepts the dignity of
gay and lesbian persons." This belief is difficult to support in
view of the many Hadiths -- collections of sayings attributed to Muhammad
discuss liwat (sexual intercourse between males). One in particular states: "Kill the one that is doing it and also kill the one that it is being done to."
||If SSM continues to be legal, Muslims are concerned that they will have to accept conduct
that is in opposition to their religion. They will find it difficult to
participate in public schools where SSM may be taught as valid.
They are concerned that there will be a public backlash against Muslims
if the latter continue to reject SSM.
||Orthodox and Conservative Judaism:|
||These traditions recognize only opposite-sex marriage. God invented
marriage in this form. Judaism has preserved it.
||Judaism accepts homosexuals as people with dignity, because they are
made in the image of God.
||If the government continues to allow SSM, many religious Jews will
avoid civil marriage.
||Religious Jews are concerned about future challenges to religious
institutions. They see that their beliefs concerning SSM might result in
the public becoming disrespectful of Jewish beliefs in the future.
||They do admit that other traditions within Judaism accept and/or
||Fundamentalist and other Evangelical Protestants:|
||They believe that the Bible defines marriage as a God-ordained
covenant between a man and a woman. They also believe that all sexual
activity should be confined within an opposite-sex marriage. Thus,
pre-marital sex, adultery, polygamy, post-marital sex, and same-sex
marriage is considered highly immoral and is forbidden.|
||When the state allows same-sex couples to marry, Evangelicals feel
that the state is forcing them to accept the legitimacy of such unions.
This is an "unjust and illegitimate imposition on their religious
||The proposed government legislation states that: "nothing in this
Act affects the freedom of officials of religious groups to refuse to
perform marriages that are not in accordance with their religious
beliefs." However, Evangelicals are still concerned that their
clergy might face legal compulsion in the future to marry same-sex
couples. They argue that the federal legislation may protect clergy who
want to discriminate against same-sex couples, but that provincial
governments may intrude. Evangelicals feel that the Charter of Rights
and Freedoms may not offer any protection to conservative
||Clergy might be required to solemnize SSMs.
||Churches might be required to make their facilities available for
SSMs and receptions.
||Clergy who counsel opposite-sex married couples might be required to
provide the same service to same-sex couples.
||Marriage commissioners who are individuals authorized by a province
to solemnize marriages may have to handle SSMs even though it violates
their personal religious beliefs.
||Religious groups might have to recognize the marriages of all of
their employees, including those in same-sex marriages, with regard to
medical benefits, bereavement leave, etc.
||Children may be taught about same-sex marriage in public schools in
a way that violates the religious beliefs of their parents.
||Church-run educational facilities may be refused full participation
in public life because their teachings on same-sex marriage are in
conflict with the government's stand.
They ask the Supreme Court to give a very broad interpretation
of the Charter's guarantee of religious freedom. They want
religious freedom to be interpreted as extending beyond an individual's
and a group's religious beliefs to include actions based on those
beliefs, even if the actions are discriminatory. That is, the right of a
person, on the basis of their religious belief, to actively discriminate
against another person outweighs the right of the latter individual to
free of discrimination based on their sex, color, race, sexual
orientation, disability, etc. The right to discriminate must be judged
from the position of the individual or their specific denomination. Even
if liberal faith traditions within the same religion considers such
discrimination to be immoral, the right of conservatives to discriminate
must not be limited.
||Same-sex couples do not necessarily have a right to marry under the
Charter. Another remedy is available: the government can create a
separate but equal institution of civil unions for same-sex couples.|
||They are concerned that future governments might deny benefits to
religious groups who discriminate on the basis of sexual orientation, on
the basis that their beliefs and practices are contrary to the public
A secondary concern:
The main theme of the Coalition's brief relates directly to SSM. However, it
repeatedly refers to a secondary concern: increasing conflict between
conservative religious beliefs and public opinion over homosexuality:
||Although there has been considerable change in the beliefs of liberal
and some mainline faith groups, almost all conservative religious
denominations and traditions continue to treat homosexual behavior as
intrinsically immoral, condemned by their holy book(s), and hated by God.
||There is a growing acceptance of homosexuality by the public as a
morally neutral, normal, and natural orientation for a minority of adults.
Further a majority of Canadian adults favor equal rights for persons of all
The three conservative groups seem to fear:
||A future lessening of public respect for conservative religious beliefs.
||Actual restrictions by governments, human rights organizations, and
other groups on the freedom of religious groups to continue to discriminate
on the basis of sex and sexual orientation.
||Conflicts, particularly involving young persons, between what they are
taught in their church, mosque or synagogue, and what they hear in public
educational institutions, the media, entertainment outlets, etc.
||A narrowing of the legal concept of religious freedom to include only
beliefs, and not actions based on those beliefs.
Their concerns may well be valid. There have been many conflicts which have
divided religious groups in North America over the past 15 decades that have
produced schisms: human slavery, an end to racial segregation, equal rights for
women, inter-racial marriage and now equal rights for persons of all sexual
orientations, including the right to marry. These conflicts have set different
wings of the same religion against each other. One wing may work to preserve
discrimination on the basis of race, sex and sexual orientation while another
wing works to achieve "liberty and justice for all."
In recent decades:
Some conservative religious groups are under
considerable pressure today by gay-positive groups to end their homophobic
policies 4 towards the unions and marriages of same-sex
couples, the ordination of sexually active gays and lesbians, and acceptance of
gays and lesbians for membership. In time, if present trends continue,
increasing pressure may well be seen from liberal wings of the same religion,
from the public in general and from governments.
"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:
We use the term "racist policy" here to refer to any policy that
discriminates against persons on the basis of their race or color.
We use the term "sexist policy" here to refer to any policy that
discriminates against persons on the basis of their sex.
We use the term "homophobic policy" here to refer to any policy
that discriminates against persons on the basis of their sexual orientation.
"SSM" means "same-sex marriage"
Copyright © 2003 to 2005 by Ontario
Consultants on Religious Tolerance
Latest update: 2005-SEP-14
Author: B.A. Robinson