HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
Supreme Court of Canada Hearings
2004-October 5 to 7
Supreme Court of Canada hearings on the government's reference
||"I want to marry the person I love." A sign at a demonstration on
Parliament Hill on 2004-MAR.
||"...preserving the heterosexual understanding of
marriage is an important public policy decision that benefits all of
society..." Focus on the Family (Canada)
the Ontario Court of Appeal determined that the federal marriage act
was in violation of the Charter of Rights and Freedoms, Canada's
constitution. They ordered the Government of Ontario to start issuing
marriage licenses to same-sex couples immediately. This was the
ruling that made marriage available
to all adult couples, both opposite-sex and same-sex, but only within the
province of Ontario. On 2003-JUN-17, the federal government
to create legislation that would legalize same-sex marriage (SSM) across
Canada. They sent the proposed legislation and some questions in the form of a
reference to the Supreme Court of Canada for a non-binding ruling.
By the end of 2004-SEP, the territory of Yukon, and the provinces of
British Columbia, Manitoba, Ontario, Quebec, and Nova Scotia had all legalized SSM within their
jurisdictions. About 80% of
same-sex couples in the country were able to marry without leaving their
province or territory of residence.
|2004-OCT-5: Ottawa: On 2003-JUL-17, the federal government
had asked the Supreme Court to review proposed legislation that would modify the
marriage act. The operative clauses of that legislation are:
"Marriage, for civil purposes, is the lawful union of two persons to
the exclusion of all others."
"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." More details.
According to the Toronto Star, this reference asks the court to give
a non-binding ruling on four questions. The first three were proposed by the
previous Justice Minister, Martin Cauchon, on 2003-OCT-24:
||"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?"
||"Is section 1 of the proposal, which extends capacity to marry to persons
of the same sex, consistent with the Canadian Charter of Rights and
Freedoms? If not, in what particular or particulars, and to what extent?"
||"Does the freedom of religion guaranteed by paragraph 2(a) of the
Canadian Charter of Rights and Freedoms protect religious officials from being
compelled to perform a marriage between two persons of the same sex that is
contrary to their religious beliefs?" 1
The fourth question was added by the current Justice Minister: Irwin Cotler:
||"Is the traditional definition of
marriage in common law jurisprudence and codified in Quebec, consistent
with the Charter of Rights and Freedoms?"
The list does not include a question whether
civil union legislation which would give same-sex couples the same rights,
privileges and obligations as opposite-sex married couples -- a separate but
equal system involving civil unions -- would be good enough. Yet this option
will probably be the option that the conservative opposition will promote in
Parliament when the new marriage bill is debated.
Hearings on the federal
government's reference start on OCT-6 at the Supreme
Court of Canada. Three days of oral arguments were originally scheduled.
will be the federal Attorney General and 27 interveners at the hearing:
||Those favoring SSM include:|
||Attorney General of Canada.
||Egale Canada and Egale couples.
||Ontario & Quebec couples.
||Canadian Human Rights Commission.
||Ontario Human Rights Commission.
||Manitoba Human Rights Commission.
||Canadian Coalition of Liberal Rabbis for same sex marriage.
||The United Church of Canada.
||Canadian Unitarian Council.
||Metropolitan Community Church of Toronto.
||Canadian Bar Association.
||Canadian Civil Liberties Association.
||B.C. Civil Liberties Association.
||Foundation for Equal Families.
||Coalition pour le mariage civil des couples de mÍme sexe.
||Those opposing SSM include:|
||Attorney General of Alberta.
||A coalition of Focus on the Family & REAL Women
||Interfaith Coalition on Marriage and Family.
||Canadian Conference of Catholic Bishops.
||Ontario Conference of Catholic Bishops.
||Church of Jesus Christ of Latter Day Saints.
||Seventh-Day Adventist Church in Canada.
||Senator Anne Cools.
||Roger Gallaway M.P.
||Working Group on Civil Unions.
||One neither favors nor opposes SSM:|
||Mouvement laique quebecois
||One province disputes the federal
government's claim that they have jurisdiction to decide who can marry:|
||Procureur general du Quebec 2,3
In addition, there are "volumes of
||Equal Marriage for Same-sex Couples commented on their web site:
"After four years of lobbying, advocacy and successful challenges in 6 of
Canada's 13 jurisdictions, there has to be little new to be said on either
side of the marriage debate." No novel arguments are expected to be put
forth during the three days of hearings. On the eve of the first day of
||Alex Munter, co-chairperson of Canadians for Equal Marriage said: "We
are hopeful that the finish line is in sight." 11|
||Karen Busby of the homosexual-positive group Egale commented that the court
decisions in British Columbia, Manitoba, Ontario, Quebec and the Yukon will
have an effect on the Supreme Court. The highest court's opinion is key to
establishing a national precedent. She said: "Theoretically a
different federal government could come along and pass federal law to take
away the right to same-sex marriage. If we have the Supreme Court of Canada
saying it's unconstitutional not to permit same-sex marriages, then it's
harder for the federal government to pass legislation that goes in the other
||The Association for Marriage and the Family
in Ontario will argue in their joint brief that:|
||The "essence of the legal meaning of
marriage" is the union of one man and one woman.
||A same-sex relationship cannot be "of the
same nature" as an opposite-sex marriage.
||Since the definition of marriage predates
"even Canada itself, any attempt to change that definition should
require an amendment to the Constitution." 5
||Martha McCarthy, lawyer for the Ontario and Quebec same-sex couples
said: "Denying gays and lesbians the right to marry is outdated and wrong
just like it was wrong not to consider women as persons or to prohibit
inter-racial marriage. Historical pedigree alone does not make something
right. The Charter aims to protect the traditionally disadvantaged from
discrimination, however deeply ingrained, seemingly natural, or
||Cynthia Petersen, lawyer for Egale Canada and five same-sex couples in
British Columbia said: "Excluding same-sex couples from civil marriage is
discrimination, plain and simple. In todayís society, the only reason to
exclude same-sex couples is to entrench and preserve the exclusive
privileged status of heterosexual conjugal relationships. Same-sex couples
in Canada have been getting married for well over a year. Thousands have
done so. Equal marriage diminishes no one."|
||The Rev. Dr. Jim Sinclair, General Secretary of the General Council of the
United Church of Canada, said in a news release: "A significant, unique
contribution that the United Church brings to this debate is the denomination's
own experience of making same-sex marriage ceremonies available to its members
and, at the same time, respecting the right of those within the denomination who
are opposed to such services....The United Church believes that equality
and religious freedom can live side by side, supporting each other and building
a stronger society." The factum submitted to the court by the United Church
said, in part: "Theologically and liturgically, the United Church understands
both opposite-sex and same-sex couples as sharing the same human dignity of
being made in the image of God. There is therefore no theological impediment
that would prevent same-sex couples from participating in this union, which is
one of the fullest expressions of the covenant between God and humanity. To the
contrary, excluding same-sex couples from this expression of the covenant
relationship undermines their basic human dignity." 10 Anne Squire, former Moderator of the
United Church of Canada said: "The United Church understands both opposite-sex couples and
same-sex couples as sharing the same human dignity. Marriage is a benchmark
by which Canadian society names the everyday development of love and
intimacy between a couple. Restricting the definition of marriage to
opposite-sex couples questions the capacity of gays and lesbians to develop
love and intimacy, undermining their human dignity and reinforcing
||Elizabeth Bowen, past president of the Canadian Unitarian Council said:
"We see equal marriage as a matter of religious freedom for our clergy. What
was once innovative is now regular practice. For us, the choice is clear.
Our faith calls us to respect all persons. Justice requires this of us."|
||Gilles Marchildon, Executive Director of Egale Canada, said: "Equal
marriage is the only option that advances equality. Separate but equal is
unconstitutional. Eliminating everyoneís right to civil marriage, in order
to exclude gays and lesbians, is not in keeping with our Canadian values of
openness and inclusion. And the federal government simply doesnít have the
jurisdiction to replace civil marriage with civil union."|
||Kenneth Cheung, chairperson of the Chinese Canadian National Council
said: "The Chinese Canadian National Council adds its voice in support of
the interveners advocating for same-sex marriage rights, We will continue to
work in collaboration with other equality-seeking groups to fight
discrimination and advance human rights and social justice in Canada. The
federal government should introduce new legislation swiftly since the recent
lower court rulings are clearly in support of including same-sex marriage."
Some lawyers for same-sex couples plan to argue
that the government does not have the political will or muscle in a minority
government situation to push through SSM legislation. They will suggest that
the Supreme Court of Canada take the lead in changing legislation. 3
||2004-OCT-6: Wednesday: Ottawa: First day of
hearings: There was relatively little coverage of the hearings in the media,
and essentially no response by the public in letters to the editor of leading
||The lawyers representing the federal government were the first to
testify at the hearing. Lawyers representing the
same-sex couples and the Justices of the Supreme Court concentrated on the
fourth question of the government's reference: whether it is unconstitutional
to restrict marriage to opposite-sex couples. Justice Major asked the
Attorney General of Canada (AGC): "Couldn't you have accomplished this
with an appeal?" The AGG replied that "conscience" did not allow
the AGC to appeal a decision reached unanimously by judges in three
provincial courts. Justice Binnie commented: "The issue was not appealed
from the Ontario, BC, Quebec cases because the Attorney General has accepted
that the answer given by those courts was correct. Now given that that is
the position of the government, and given that as a matter of policy, quite
apart from the legal position, youíre moving forward or the government is
moving forward with this bill, it seems to me that answering question four
may not fulfill any useful purpose." Justice Bastarache asked: "Arenít
you describing a political role? You are saying basically that parliament
wants to introduce and pass this legislation in any case and then you are
saying 'Well, politically it would be better for members of parliament to
get a final answer on this question and that it would assist in the
deliberation.' It seems to be a description of a political role for the
decision of the court. The legal role is not there. Youíre saying the
legislationís going to be passed in any event."
||Michael Morris, a federal Justice Department lawyer, testified: "The
exclusion of same-sex couples for marriage can no longer be upheld as the
exclusion is discriminatory and cannot be justified.
||Ed Morgan, a lawyer for the Coalition of Liberal Rabbis
testified: "Some religious groups claim not to have a problem with the
concept. Same-sex ceremonies are kosher. We ask you to recognize that in
every sense." 6
||Virginia Larsson, representing an unidentified
conservative group said: "We're looking to maintain the traditional
definition of marriage as one man and one woman for the sake of our children
and our future generations."
||The factum submitted to the court by the Canadian
(CUC) states, in part: "Unitarian churches have offered both ceremonies
for same-sex unions that have been termed marriages as well as ceremonies for
same-sex unions that were given names other than marriage since the 1970s....No
Canadian Unitarian ministers or lay chaplain would refuse to perform a marriage
or union ceremony for a same-sex couple....The failure to allow same sex couples
the right to marry if they choose to do so is discrimination. It withholds a
benefit from same sex couples in a manner that reflects stereotypical
application of personal characteristics, resulting in the perpetuation of the
attitude that gays and lesbians are somehow less worthy. It is about human
dignity....Same sex couples who wish to marry do so for a myriad of reasons,
including intimacy, companionship, societal recognition, and economic benefits
to name a few. Same sex couples also conceive or adopt children....Elizabeth
Bowen, president of the CUC stated 'Gay couples married by Unitarian clergy have
told us that they and their children feel much more secure when their union has
legal recognition.' Legal prohibitions against same-sex marriage harm children
raised by same-sex couples by instilling them with the message their families
matter less than families of opposite-sex couples....we view marriage as a civil
and not a religious institution....Unitarians share with the Metropolitan
Community Church (MCC), and even more so with Liberal Rabbis, the conviction
that Scripture is misused by the selection of a few
verses to support positions contrary to the overarching message of
Scripture, that justice should flow down from government like water. Our
movement in history has experienced the use of Scripture to defend both slavery
and [racial] segregation....CUC submits the proposed legislation does not impair
freedom of religion, but in fact is drafted so as to further enhance freedom of
religion and allow religious groups that support equal marriage such as CUC,
Quaker meetings, liberal rabbis and United Church clergy, to celebrate marriages
that are consistent with their faith and practice as well as permit religious
groups who oppose equal marriage to not perform same-sex marriages....We believe
each religious group should make decisions on whether they would perform
same-sex marriages in a manner consistent with their faith and practice without
interference from State authorities....Unitarians do not wish to impose their
religious beliefs on others any more than we want others to impose their
religious beliefs on us. While we disagree with the beliefs of some other
religious groups on the issue of equal marriage, we respect their right to hold
those beliefs and would be opposed to any actions by the state to compel a
religious group or its clergy to perform a same-sex marriage against their
||2004-OCT-7: Thursday: Ottawa: Second day of
hearings: Testimony was heard from the Provinces of Alberta and Quebec,
and from some religious groups:|
||Robert Leurer represented the Province of
Alberta. He said that the Parliament cannot expand marriage to include
same-sex couples without formally amending the constitution. He said
that when the constitution was written, the term "marriage" meant
a union of one man and one woman. If the government is going to change
that definition, it must first change the constitution. Justice Rosalie
Abella, who joined the court this week, appeared to disagree. She said:
"You don't look at 1867 as the end of the story." Leurer seems to
hold a static, conservative view of the Constitution -- that one must
interpret the Constitution according to its original wording. Justice
Abella appears to view the Constitution as a living, evolving document.
Leurer also suggested that change be made cautiously so that a change in
the marriage act would not "obliterate in one fell swoop the wisdom
accumulated since time immemorial." On the theme of constitutional
change, Justice Ian Binnie pointed out that the divine right of kings
had been well established for centuries. He asked: "Why is it that
the divine right of kings has to give way to constitutional change, but
marriage doesn't?" He also questioned the claim that SSM would
destroy the institution of marriage. He said:
"It seems to me difficult to see that
extending the institution to this group would bring the whole edifice
down." He also criticized the belief that child-gearing is a vital
element in marriage. He said: "To reduce the whole thing to
procreation seems to be an oversimplification."|
||David Brown, who represents the Association for Marriage and the Family in Ontario
conservative social groups, said that churches would be marginalized by
the people of Canada if the government followed the wishes of majority
of Canadian adults who favor same-sex marriage by implementing SSM. He
also expressed concern that those churches who are opposed to SSM would
be hit with a deluge of lawsuits. He said that "The federal
government may not have the power to enact legislation that protects
religion." He predicted that churches will be sued over their tax-exempt
status and will find themselves charged under existing hate laws. Speaking
outside of court, he said: "If the definition of marriage is changed
and constitutionalized as to include same-sex marriage it will be open
season on religious institutions." He also said: "You cannot come to a fork in
the road . . . and say we're going to go down this road but we don't
know where it ends." He predicted that: "For the next ten years, the
main cases this court is going to be hearing are from religious groups
who are being shut down in various areas - tax-status exempt, hate laws
enforced against them. It is going to be very serious stuff."
He said that the appellate courts in British Columbia, Ontario, and Quebec in favor of SSM were "dead wrong...The
definition of marriage as a union between man and woman is embedded in the Constitution. With all due respect, the courts below....have stood the Constitution on its head." 9|
||Lawyers for the Interfaith Coalition represented the beliefs of
the Roman Catholic Church, conservative Protestants and conservative Muslims. They
argued that the Charter of Rights and Freedoms does not require that
marriage be extended to same-sex couples. Lawyer Peter Jervis warned that
religious conservatives -- both inside churches and without -- would be
adversely impacted by SSM. He said: "What about a religious official who
performs civil marriages? How about an Islamic judge, a conservative Jewish
judge, a Catholic judge who did not want to perform a ceremony because of their
religious beliefs? What about the municipal officials who perform civil
marriages, they would have a conflict between their religious beliefs?" |
In a news release about the court hearing, Bruce Clemenger,
president of the Evangelical Fellowship of Canada, (EFC) wrote: "Changing
the definition of marriage refashions its meaning and eliminates many of its
distinctive features. If not marriage, what institution in society can we,
as faith communities, promote that accomplishes what heterosexual marriage
now does? What language can we use, and will we be afforded the public space
to commend it to Canadians?" If marriage is to include both same-sex and
opposite-sex couples, then a new term will have to be created to refer only to opposite-sex couples. One obvious
term would be "opposite-sex marriage." We have seen a number of
religious conservatives refer to "traditional marriage." However,
this might cause confusion.
||Prior to the U.S. Civil War, traditional marriage meant the union of a white
man and woman. In many states, African-Americans could not marry.
||Until the 1960s in some areas of North America, the
traditional form of marriage involved only spouses of the same race.
Inter-racial marriage was a criminal act in some political jurisdictions.
||In Bountiful, BC, marriage for the past six decades has typically means one
man and many
woman. Various Mormon denominations have engaged in polygyny for over 17
decades. Hebrews in ancient times practiced polygyny for millennia.
With marriage in such a continual state of flux, "traditional marriage"
is not precise term. Another term that religious conservatives use -- "real marriage"
-- is also confusing, because same-sex couples now get a marriage license,
get married, and register their marriages with the government in the same
way as opposite-sex couples.
In the same news release, Janet Epp Buckingham,
director of Law and Public Policy for the EFC, wrote: "In a very real
sense, we are fighting for the right to live without discrimination in
Canadian society and practice our religious beliefs with respect to
marriage. Now that the historic definition of marriage is said to be
contrary to Charter-values, those of us who define marriage as being between
a man and a woman are deeply concerned about being marginalized in Canadian
society." This is a very real concern. Any religious group which says
that same-sex couples should not be allowed to marry would be opposing the
beliefs of most Canadian adults. Many religious groups in the 1860s opposed
allowing Blacks to marry; others in the 1970s opposed inter-racial marriage;
today, the Roman Catholic church occasionally does not allow disabled people
to marry. All either changed their position or risked being marginalized.
The Canadian Conference of Catholic Bishops states: "Because it
pre-exists the state and because it is fundamental for society, the institution
of marriage cannot be modified, whether by the Charter of Rights, the state or a
court of law. Enlarging, and thereby altering, the definition of marriage in
order to include same-sex partners discriminates against marriage and the
family, and deprives them of social and legal recognition as the fundamental and
irreplaceable basis of society." 13
||Gerald Chippeur, representing Conservative Senator Anne Cools and others,
suggested that the court would be "justified in remaining silent" on all
four questions of the government's reference. "This court should not become a
third legislative option for frustrated cabinet ministers." 10|
||The Province of Quebec suggested that the
federal government would intrude on provincial jurisdiction if it
allowed SSM. |
||Robert Leurer, who represented the Alberta government also took the view
that the definition of marriage has been unchanged forever. He said: "We
would lack humility if we think that as a society, we have learned enough in the
course of 20 years of Charter jurisprudence to displace in one fell swoop the
wisdom accumulated since time immemorial and sweep into the dustbin the core of
the historically accepted definition of marriage."|
||The hearings, originally scheduled for three
days, were concluded half-way through the second day.|Site navigation:
"Factum of the Attorney General of Canada," Court File # 29866,"
Department of Justice, Canada, 2003-OCT-24, at:
"It was an issue of rights," The Toronto Star, 2004-OCT-02, Page H1
"Same-sex Debate Q & A," The Toronto Star, 2004-OCT-06, Page A3.
"Focus defends marriage at the Supreme Court," Focus on the Family
Canada, 2003-OCT-6, at:
"Federal Government will delay gay-marriage bill," Today's Family
News, Focus on the Family Canada, 2004-OCT-05.
"The Marriage Reference: Itís About Human Rights and Equality. The
Charter Protects All Canadians," Egale Canada, 2004-OCT-5, at:
"Cotler's contortions questioned by court. Justice Minister abuses legal
process for politics," Equal Marriage, 2004-OCT-6, at:
"Gay marriage opponents testify in Canada," Associated Press,
"Supreme Court urged not to redefine marriage," FamilyFacts.ca,
"United Church Intervenes in Supreme Court on Same-Sex Marriage,"
News release, 2004-OCT-6, at:
Ben Thompson, "Landmark Gay Marriage Case Begins In Canadian Supreme
Court," 365Gay.com, 2004-OCT-6, at:
Kenneth Smith & Robert Hughes, "CUC Factum to the Supreme Court of Canada,"
Canadian Unitarian Council, 2004-MAY-8, at:
John Ward, "Opponents, supporters of same-sex marriage gear up for
Supreme Court hearing," The Canadian Press, 2004-OCT-5, at:
Copyright © 2004 by Ontario
Consultants on Religious Tolerance
Latest update: 2004-DEC-11
Author: B.A. Robinson