2004-DEC-01 to DEC-11

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." ₁

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 same-sex marriages.
	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 rulings." ₇

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 details.

Some comments:

	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 Parliament." 9
	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 legislation."
	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 them." 7
	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 activist, said: "One area of overwhelming consensus is that the Charter is a document that Canadians cherish."
	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 party's position.

At this time, the legislation has the probable support of:

	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 (Churchill, MB).

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

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.

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, but
	Does not describe their relationships as marriage

would be sufficient to satisfy the Charter of Rights and Freedoms, Canada's constitution.

2003-MAY-1: The British Columbia Court of Appeal unanimously ruled that restricting marriage to opposite-sex couples is unconstitutional.

2003-JUN: The Ontario Court of Appeal unanimously agreed with the British Columbia court. It went further by ordering Ontario government  to start issuing marriage licenses and registering same-sex marriages.