HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA
2004-DEC-01 to DEC-11
Supreme Court's ruling on references;
|"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)|
In 1999, Parliament debated a motion that defined marriage as "a union of
one man and one woman, to the exclusion of all others." It passed 216 to 55. In 2003, an identically worded bill was defeated 137 to 132.
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 2004-DEC, courts in the territory of Yukon, and six provinces (British
Columbia, Manitoba, Nova Scotia, Ontario, Quebec, and Saskatchewan) had all legalized SSM within their
jurisdictions. About 85% of
same-sex couples in the country were able to marry without leaving their
province or territory of residence. However, the marriage acts at the federal,
provincial and territorial levels still specify that marriage is a union
restricted to one man and one woman.
2004-DEC-01: Decision by Supreme
Court of Canada expected shortly: The Canadian Press reported that
the Supreme Court of Canada is expected to rule on DEC-09 about the constitutionality
of proposed federal government legislation enabling same-sex marriage.
Justice Minister Irwin Cotler told the Ottawa Citizen newspaper that if the court
approves the legislation, he plans to introduce it to Parliament "...with
all deliberate speed...in the new year."
Barry Bussey is a lawyer who testified on behalf of the Seventh-day
Adventist Church in Canada. They oppose allowing same-sex couples to
marry, and have asked the court to maintain the church's freedom to
discriminate against same-sex couples by refusing to marry them. He said: "I
am very surprised. I was really anticipating it sometime after Christmas."
2004-DEC-08 at 9:45 ET: Court releases its opinion: In what is
perhaps its most wide-ranging decision of the past decade, the Supreme Court of Canada
handed down a 19 page ruling on the Federal Government's "Proposal for an
Act respecting certain aspects of legal capacity for marriage for civil
purposes." -- commonly referred to as its "reference." It
involves four questions
concerning same-sex marriage. The court's decision was unanimous. It is
purely advisory in nature and is not binding on the court.
Normally, the Supreme Court releases rulings about six months after the
conclusion of hearings. This decision was handed down unusually quickly --
after two months and one day.
The court answered all three of the Federal Government's original reference
questions in the affirmative, stating that:
The federal government has the constitutional right to
redefine who is eligible to be married. Although the ruling is only
advisory, this would make it difficult for Alberta' to use the "not
withstanding clause" to exempt that province from having to register
The federal government's proposed
legislation authorizing same-sex marriage does not conflict with the
Charter of Rights and Freedoms -- Canada's constitution.
The constitution offers broad protection of religious freedom.
This includes the right of clergy to continue to discriminate, for any reason,
against any couple who requests a marriage ceremony without risking prosecution
under Canada's anti-discrimination laws. In the past, clergy have
discriminated against engaged couples on the basis of disability, sex, race,
religion, level of maturity and degree of commitment. Clergy will be able to safely continue this in the
future if they wish.
However, the Court refused to give a clear answer to the
fourth reference question. This was added by Prime Minister Paul Martin: whether a provision for same-sex
marriage in law is required by the Canadian constitution -- i.e. whether
restricting marriage to a union of one man and one woman violates equality
rights of same-sex couples. The Supreme Court justices noted that the government had already
accepted rulings by many lower courts that the existing laws are in
violation of the constitution. Their ruling stated, in part:
"The government has clearly accepted the ruling of lower courts on this
question and has adopted their position as its own....The parties to previous litigation have now relied upon the finality of the
judgments they obtained through the court process." A report by the
Canadian Broadcasting Commission said: "In effect, the Court said it was inappropriate to answer the question as the
federal government had decided not to appeal lower court rulings that upheld
same-sex marriages. The Court said the law had effectively changed in six
provinces and one territory because the government had not appealed the
The ruling emphasized the evolving
nature of marriage. It said, in part: "Several centuries ago, it would
have been understood that marriage be available only to opposite-sex
couples. The recognition of same-sex marriage in several Canadian
jurisdictions as well as two European countries belies the assertion that
the same is true today."
The adult population of Canada is
almost evenly split over permitting loving, committed same-sex couples to marry, with a slight majority
in favor. However, the vast majority of older Canadians and of religious
conservatives are overwhelmingly opposed. More
Ron Stevens, Alberta's new justice minister, admitted
that: "The reality is that our ability to defend the (Alberta) Marriage
Act has been restricted by this ruling." 8 Still,
Stevens said that Alberta stands behinds its present law and will
refuse to issue marriage licenses to same-sex couples, or to record their
marriages. He said: "As we stand today in Alberta, the traditional definition of marriage is the
law here. There are legal options, but I'm going to share them with
my colleagues first. I'm not going to stand here today and talk about
what-ifs.....What this [ruling] means now is that the federal government has the full
ability to make uniform law through Parliament allowing for same-sex unions. Alberta does not have the ability to invoke the notwithstanding
clause in relation to federal legislation...I need to be
realistic....There is some question whether the legislation will pass." 7
Alexander Munster of Canadians
for Equal Marriage said: "This is a victory for Canadian values."
Roy Cullen, a Liberal Member of
Parliament, said: "I do personally have a problem with redefining marriage
and I'm sure some of my colleagues do as well."
Joe Varnell, who with spouse Kevin Bourassa were the first
gay men in Canada to legally marry in a church, said: "This Supreme Court
reference is...the last opportunity for excuses from our justice minister
and prime minister and will force them finally to...present legislation in
Gordon Young, pastor of the
First Assembly of God Church in St. John's, Newfoundland, which
is affiliated with a fundamentalist Protestant denomination, said: "It's
a sad day for our country. God is in the DNA of this nation. We believe that
changing the definition of marriage is changing the divine institution that
God put in place for the order of our society."
Martha McCarthy, lawyer representing several same-sex
couples from Ontario and Quebec, said:
"The reference judgment is a clear green light in favor of immediate
Charles McVety, president of Toronto's Canada Christian College, said: "I believe people are going to
stand up and say enough is enough is enough....When you redefine marriage, you redefine it for
everyone....Marriage has been hijacked
today and I'm very sad."
Douglas Elliot, a lawyer who represented the gay-positive
Metropolitan Community Church of Toronto commented on on clergy
legally discriminating against same-sex couples. He said: "They have said
that the government cannot compel religious officials to marry same-sex
couples against their religious beliefs...This is the concern, the bogeyman, that has been trotted out by our
opponents." He also commented:
"The Supreme Court of Canada has said in the strongest possible terms
that the court will extend its protection to religious groups that don't
agree with us. Catholics, Orthodox Jews and others who do not
want to marry same sex couples have the constitutional right not to marry
Gwen Landolt, vice-president of REAL Women, a socially conservative
group, referred to what she called "activist"
Supreme Court judges, by saying: "They're only appointed by the Liberals,
so who cares?" Later, she said: "We have to protect marriage.
Those Liberal members of Parliament have to know they are not going to be
reelected" if they vote for the measure.
Joseph Ben-Ami of the Jewish group B'Nai Brith said:
"The important issue here is that it's being returned to the place where
important public policy decisions ought to be made -- and that's the
Parliament of Canada."
Martha McCarthy, a lawyer who represented Ontario and
Quebec litigants, said:
"Now 28 judges across this country have found in favor of equal
marriage for all Canadians, regardless of their sexual orientation. The reference judgment is a clear green light in favor of immediate
legislation." On another occasion, she said: "It means the
same-sex marriages that have already been performed in this country are
legal and must be recognized."
Senator Anne Cools has called for a national referendum on the issue.
Alex Munter, a former Ottawa city councilor and gay
"One area of overwhelming consensus is that the Charter is a document that
Stephen Harper, leader of the right-wing Conservative Party
said that the ruling is a "tremendous victory for Canadian democracy....The court did not declare the traditional definition of marriage
unconstitutional. They have punted this issue back to Parliament to
decide....Same-sex marriage may be
possible, but it is certainly not required by this judgment."
As noted above, legislation to legalize same-sex marriage
nation-wide will probably be introduced into Parliament early in 2005.
Passage of the bill requires the majority vote of the 308 Members of
Parliament. It is expected to be a free vote. That is, members will be able
to vote according to their conscience, and not required to follow their
At this time, the legislation has the probable support
the 38 member Liberal cabinet, but
not all of the 95 Liberal backbenchers.
all or essentially all of the 54
Bloc Quebecois members (a separatist party).
all of the 19
New Democratic Party members (a socialist party) except for Bev Desjarlais
As for the right-wing Conservative Party, its 99-member
caucus will probably reject the bill en masse, except for Belinda Stronach (Newmarket-Aurora,
ON) and James Moore (Port Moody-Westwood-Port Coquitlam, BC).
The legislation would require
the support of about 44 of the 95 Liberal party backbenchers in order to
pass. The Conservative Party and some liberal members are expected to fight
a tenacious campaign to prevent same-sex couples from solidifying the
marriage rights that they have gained through the courts. They may
promote civil unions as an alternative to same-sex marriage. This would
involve legal recognition of same-sex relationships with the same rights as
marriage, but without the name. Lower courts have ruled that these would not
meet constitutional requirements, but the Supreme Court has not specifically
rejected them. The conservative opposition will also probably call for a
national referendum. 2,3,4
What exactly does the Supreme Court ruling mean?
Fundamentally, the ruling means little. It is non-binding on
both the court and the federal government. It is merely an expression of
opinion. Governments are not required to do anything in response to the
court's opinion. Still, the court's
decision was unanimous. This means that any formal court SSM ruling in the
future would probably not deviate from these rulings.
The court suggested that:
The federal government alone has the right to decide who may
marry. However, since the ruling is not binding, a province like Alberta
could impose the Constitution's "not
withstanding clause" and try to exempt itself from SSM. Their
chances of making it stick are probably very slim.
The federal government's proposed legislation expanding
marriage to include same-sex couples is constitutional.
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. It is unclear whether they can refuse
to allow a SSM to be conducted in a church hall or on church grounds and
still be protected by the religious freedom clauses in the Charter of
Rights and Freedoms. This
question will undoubtedly be raised by at least one same-sex couple.
What the Supreme Court did not suggest is perhaps
They did not state that the present marriage laws, which restricting
marriage to opposite-sex couples and thus deny the right of same-sex couples
to marry, is unconstitutional.
They did not state that a system of civil unions for
same-sex couples which:
Legally recognizes and records their relationships, and
Grants them rights and obligations equal to married couples,
Does not describe their relationships as marriage
would be sufficient to satisfy the Charter of Rights and
Freedoms, Canada's constitution.
These missing opinions may prove to be very troubling in the
future. Members of Parliament will have to debate the issue without adequate
guidance from the Supreme Court on some key issues.
What really do matter are the rulings of senior courts in
the Yukon and in various provinces. In particular:
The federal government had a chance to appeal these and
other court decisions, but allowed the opportunity to expire. They are thus
binding on the government.
Interpretations of the court opinion by various groups:
|American Anglican Council: This is a very conservative reform movement
within the Episcopal Church, USA. They sent an abbreviated copy of a
Washington Post article to its newsletter subscribers and posted the full
text on its "AACBlog." The main points of the article are:|
|The Supreme Court declared same-sex marriages constitutional.|
|SSM has "strong public support" in Canada.|
|It gave "...the go-ahead to Parliament to legalize gay marriage
|This is the latest sign that Canada is "on a different track" from
|Prime Minister Paul Martin said that he would introduce SSM legislation to
Parliament early in 2005. 5|
|Focus on the Family, Canada: This is a fundamentalist Christian
charity which is closely linked to their Colorado-based parent group. They
concluded from the court's opinion that SSM is not a human rights issue.
If it were, then the Supreme Court would have said that the government must
implement it. As they see it, SSM is purely a policy policy issue. President Terence Rolston
said: "The Court has clearly indicated that
any changes to marriage must be made by Parliament and not through the courts. Surely the Court would have ruled differently if
traditional marriage was an attack on someone's basic human rights. This is not a human rights
issue but a public policy issue best dealt with in the democratic arena."
He also said that a national referendum is the best path forward. 6|
|Enshrine Marriage Canada: This is a new socially conservative group
which opposes SSM. They are calling for a national referendum on the issue.
Their spokesperson, Richard Bastien, said: "We are convinced the vast
majority of Canadians want the traditional definition of marriage. They
don't want this business of same-sex unions." 7|
On 2004-DEC-09, the Government of Alberta abandoned its threat of employing
the notwithstanding clause. This clause allows
the federal, provincial and territorial governments in Canada to pass
unconstitutional legislation that denies human rights. Such laws are temporary
and expire after five years.
Alberta Justice Minister Rob
Stevens appears to have accepted the Supreme Courts decisions as final. He
acknowledged that if the federal government
legalizes SSM, his province would not be able to invoke the
notwithstanding clause in order to retain the one-man/one woman
definition of marriage in his province. Premier Ralph Klein had suggested in the
past that he would invoke this option. Steven
said: "You cannot use the notwithstanding clause relative to a matter
that is not within your jurisdiction. Since the court ruled the authority
over same-sex marriage falls to the federal government, it is only the
federal government who can invoke the notwithstanding clause to maintain the
traditional definition of marriage. The court clearly said that provinces
could not refuse to issue licenses or register same-sex marriages."
What if a national referendum were taken?
A referendum would probably reject SSM if held at any time over the next few
years. Only adults who are
sufficiently motivated to actually go to the polling station and vote would be counted. Those who
are opposed to SSM tend to be more highly motivated on average than those who
approve of it. Younger adults, who strongly favor SSM, are traditionally
less inclined to vote then the elderly. A referendum would give a very precise indication
of the opinion of those who voted, but would be a poor measure of the feelings of
the entire country.
On the other hand, a properly conducted telephone or interview survey of
1,000 randomly chosen Canadian adults would estimate the support for and against
SSM with a margin of error of 2.5%. The margin of error decreases according to
the square root of the number of subjects. So, an accurate estimate of public
opinion can be obtained to any desired accuracy by increasing the number of
The accuracy of either a referendum or public opinion poll is highly
dependent on the precise wording of the question(s) asked.
- "Supreme Court to rule on Marriage,"
Today's Family News, Focus on the Family, Canada; 2004-DEC-03. See also an
Ottawa Citizen article republished at:
- Beth Duff-Brown, "Canadian Supreme Court rules in
favor of gay marriage," Associated Press, 2004-DEC-09. Online at:
- Sue Bailey, "Supreme Court okays same-sex marriage; religious freedom protected,"
Canadian Pres, 2004-DEC-09, at:
- Sue Bailey, "Critics say institution hijacked.
Gay marriage advocates see 'green light',"
Canadian Press, 2004-DEC-09, at:
Doug Struck, "High Court In Canada Backs Gay Marriage," Washington Post,
2004-DEC-10, at: http://aacblog.classicalanglican.net/
"Supreme Court indicates government is not obligated to redefine marriage,"
Family Facts newsletter, Focus on the Family (Canada) Association, 2004-DEC-09.
"INDEPTH: SAME-SEX RIGHTS:
The Supreme Court decision,"
CBC News Online, 2004-DEC-09, at:
Paul Stanway, "No guarantees on gay marriage law," Edmonton Sun,
Edmonton, Alberta, 2004-DEC-10. Online at:
CBC News, 2004-DEC-09.
"Liberal MPs fight to save marriage," Focus on the Family newsletter,
"Some Liberal MPs lobbying to kill same-sex marriage bill,"
2004-DEC-13, Hill Times, at:
"Harper vows to protect marriage," Today's family news, Focus on the
Family, Canada, 2004-DEC-16.
Janice Tibbetts and Sean Gordon, "Public officials can refuse to conduct
gay marriage. Cotler: Harper proposes amendments to protect traditional
marriage," CanWest News Service, 2004-DEC-15, at:
- "Alberta rules out notwithstanding option," CTV.ca, 2004-DEC-10, at:
Copyright � 2004 to 2006 by Ontario
Consultants on Religious Tolerance
Latest update: 2006-OCT-30
Author: B.A. Robinson