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2004-DEC-01 to DEC-11

Supreme Court's ruling on references;
divergent interpretations.

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Earlier developments are described in another essay

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bullet "I want to marry the person I love." A sign at a demonstration on Parliament Hill on 2004-MAR.
bullet "...preserving the heterosexual understanding of marriage is an important public policy decision that benefits all of society..." Focus on the Family (Canada)

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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.

On 2003-JUN-10 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 decided 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.

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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 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


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 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

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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 more important:


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.

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:


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.

bullet 2003-JUL: The British Columbia Court of Appeal ordered its province to also register SSMs.
bullet 2004-MAR: The Quebec Court of Appeal ruled that same-sex marriages are legal in the province. More details.

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.

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Interpretations of the court opinion by various groups:

bullet 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:
bullet The Supreme Court declared same-sex marriages constitutional.
bullet SSM has "strong public support" in Canada.
bullet It gave "...the go-ahead to Parliament to legalize gay marriage nationally."
bullet This is the latest sign that Canada is "on a different track" from the U.S.
bullet Prime Minister Paul Martin said that he would introduce SSM legislation to Parliament early in 2005. 5
bullet 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
bullet 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

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Provincial reaction:

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." 14

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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 persons polled.

The accuracy of either a referendum or public opinion poll is highly dependent on the precise wording of the question(s) asked.

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Later developments

Possible paths forward to legalize same-sex marriage

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References used:

  1. "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:
  2. Beth Duff-Brown, "Canadian Supreme Court rules in favor of gay marriage," Associated Press, 2004-DEC-09. Online at:
  3. Sue Bailey, "Supreme Court okays same-sex marriage; religious freedom protected,"
    Canadian Pres, 2004-DEC-09, at:
  4. Sue Bailey, "Critics say institution hijacked. Gay marriage advocates see 'green light'," Canadian Press, 2004-DEC-09, at:
  5. Doug Struck, "High Court In Canada Backs Gay Marriage," Washington Post, 2004-DEC-10, at:
  6. "Supreme Court indicates government is not obligated to redefine marriage," Family Facts newsletter, Focus on the Family (Canada) Association, 2004-DEC-09. Online at:
  7. "INDEPTH: SAME-SEX RIGHTS: The Supreme Court decision," CBC News Online, 2004-DEC-09, at:
  8. Paul Stanway, "No guarantees on gay marriage law," Edmonton Sun, Edmonton, Alberta, 2004-DEC-10. Online at:
  9. CBC News, 2004-DEC-09.
  10. "Liberal MPs fight to save marriage," Focus on the Family newsletter, Canada, 2004-DEC-15.
  11. "Some Liberal MPs lobbying to kill same-sex marriage bill," 2004-DEC-13, Hill Times, at:
  12. "Harper vows to protect marriage," Today's family news, Focus on the Family, Canada, 2004-DEC-16.
  13. 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:
  14. "Alberta rules out notwithstanding option,", 2004-DEC-10, at:

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Copyright 2004 to 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-OCT-30
Author: B.A. Robinson

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