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 | The federal government had exclusive jurisdiction to declare who may marry in Canada |
| The government's proposed legislation allowing SSM is constitutional. |
| Churches and other religious organizations can refuse to marry couples without exposing themselves to human rights lawsuits. |
However, the court did not rule on whether the Charter of Rights and Freedoms requires same-sex marriage in Canada.
This essay describes the positions that various religious and political groups are taken in advance of the debate in Parliament over same-sex marriage (SSM). The debate, and changes to some federal legislation including the Marriage Act, are largely symbolic. They will have little impact on the lives of Canadians. Already, court challenges have made SSM available in seven out of the ten provinces of Canada which include 87% of the Canadian population. A court case is expected in Alberta in early 2005. If that case authorizes SSM in the province, then only 3% of Canadians will live in a jurisdiction that prohibits SSM. Still, preparations for the Parliamentary debate have escalated into a major political and religious battle.
Events:
| 2004-DEC-12: ON: Newspaper predicts level of opposition to SSM: The Ottawa Citizen reported that about 30 Liberal Members of Parliament are known to oppose SSM. If this is correct, then the bill would pass comfortably. | ||||||||||||||||
| 2004-DEC-14: Canada: Small group of Liberal MPs trying to prevent same-sex
marriage: Today's Family News, a service of the fundamentalist
Christian group Focus on the Family, Canada reports that: "A small
group of Liberal MPs is lobbying hard to defeat pending government legislation
to allow same-sex couples across the country to marry." One of those is
Pat O'Brien (London-Fanshawe, ON), who said that he has succeeded in
convincing another MP to switch her vote to oppose same-sex marriage. He told
the Hill Times: "I've got a feeling where some of the undecided
members are, even in Cabinet, and I'm quietly working to convince them, but I
don't want to get into specific names...."I'm one of several very
active MPs trying to convince MPs to vote against it. There's no formal
organization, but there are two or three of us who are pretty vigorously
trying to convince members who are undecided and we are continuing to do that.
At the moment, we have a bit of an uphill fight but we aren't giving up and
we are going to wage that fight and I think the side who wants this to pass
might be a little over confident.....We're going to participate very
vigorously in the debate and try to convince members to not support it and
hopeful that we have a chance to win. Of course, I feel the government should
be using the notwithstanding clause. That's really the answer to this in my
mind." Focus on the Family lists a number of other Liberal MPs who are believed to oppose same-sex marriage: Roy Cullen (Etobicoke North, ON), John McKay (Scarborough-Guildwood, ON), Paul Szabo (Mississauga South, ON) and Paul Steckle (Huron-Bruce, ON). Justice Minister Irwin Cotler (Mount Royal, QC) has rejected the concept of a national referendum. He told the Calgary Herald that the idea was simply "an attempt to turn back the clock as if a Charter of Rights had never been enacted." He says that he plans to table SSM legislation as soon as the House resumes sitting at the end of 2005-JAN. At a press conference in the National Press Theatre he announced "We will be tabling that legislation in order to give expression to the Charter of Rights, to the fundamental principles of equality and freedom of religion and to say through that legislation to Canadians that we respect the Charter of rights, we respect the court's opinion, we will abide by those fundamental values of equality and religious freedom and we trust that Parliament will then be able to have an informed debate and discussion with respect to this draft legislation that will now become a bill to be tabled in Parliament." Derek Rogusky, Vice-President of Family Policy for Focus on the Family Canada, commented: "How we read [the ruling], and rightfully so, is that the court has said, 'Yes, Parliament can redefine marriage, but that they're under no obligation to do so.' The Government can no longer use this excuse that....'the courts have made us do this.' Now they're going to have to justify why they're making a change to such a fundamental institution and they're going to have to respond to constituents." This opinion appears to conflict with the the Supreme Court's statement that, since the Federal Government has not appealing the unanimous decisions of the highest courts in British Columbia, Ontario, and Quebec, that the Government has accepted the principle that refusing marriage to same-sex couples is unconstitutional. Anna Marie White, Director of Family Policy for Focus on the Family Canada said: "The next step for us now is to inform and motivate Canadians to get them working for marriage. We have a chance to win this vote if people act now." By "working for marriage" she apparently means that Canadians are to work against the right of same-sex couples to marry. 1,2 | ||||||||||||||||
| 2004-DEC-15: Canada: Conservative party proposes same sex civil unions:
Stephen Harper, the leader of Canada's right wing Conservative Party is
proposing amendments to the same-sex marriage legislation which the Liberal Party is
about to introduce into Parliament. His changes would apparently create a
parallel system of civil unions which would give same-sex couples the same
privileges and responsibilities enjoyed by opposite-sex couples, without
calling them marriages. He describes this parallel system as preserving a "clear
recognition" of marriage exclusively for opposite-sex couples. This type
of arrangement has already been declared unconstitutional by various senior
provincial courts. However, the Supreme Court of Canada did not specifically
rule on it. His party will propose other amendments to explicitly guarantee that churches and other religious organizations would not be penalized if they chose to discriminate against same-sex couples. Harper said: "I think whatever protections Parliament can enact, it should enact explicitly in law and not leave people simply to the court process to defend their rights....These positions, in our judgment and according to any of the data I've seen, represent the clear and overwhelming consensus of Canadians, including those who vote Liberal." If the current Parliament rejects these amendments, Harper promised that a future "...Conservative government will introduce them as legislation in the future and hold a free vote at that time." Justice Minister Irwin Cotler said that Harper's amendments would violate the Charter of Rights and Freedoms. Canwest reported that "...Cotler said the courts have already spoken, so the only choice for politicians who are against same-sex marriage is to invoke the constitutional notwithstanding clause, a safety valve that allows governments to override court rulings. 'I say to Stephen Harper, "why don't you face the country and tell them exactly what you are prepared to do. Are you prepared to invoke the notwithstanding clause in order to override the opinions of the courts and the charter"?' " Harper did admit that thousands of same-sex couples have already married and that the courts have ruled that over 85% of them can now legally marry in their province of residence. He said: "Yeah, I think we've got a difficulty here." Canadians for Equal Marriage, an group which supports marriage for all committed couples, commented in a news release: "Mr. Harper is obviously not a lawyer ... he either doesn't know the law or he's being willfully blind to it." They suggested that his "regressive" amendments would violate appellate court decisions in six Canadian provinces and one territory. 3,4 | ||||||||||||||||
| 2004-DEC-15: Canada: Justice Minister urges provinces to allow officials to
discriminate: Justice Minister Irwin Cotler has urged provinces and
territories to allow public officials who have moral or religious beliefs
requiring discrimination against same-sex couples, to refuse to marry them.
According to CanWest News Service, several legal experts contend that the
Charter of Rights and Freedoms permits churches and religious institutions
to discriminate against marrying same-sex couples, but that "...public
officials don't fall within the same category." If the latter were allowed
that freedom, an entire town of public officials could refuse to perform civil
marriages for same-sex couples, forcing them to leave town to get married.
CanWest continues: "Both Manitoba and Saskatchewan have already told their
marriage commissioners to resign if they aren't willing to perform ceremonies
for gays and lesbians." An additional complication is that if some public officials were allowed to discriminate against same-sex couples, they could then refuse to marry inter-racial couples, non-Christian couples, first-cousins, etc. Cotler said "no one should be compelled to perform a same-sex marriage contrary to their religion or belief. We believe we can reach accommodations so that those who do not want to perform that same-sex marriage, religious officials or civic officials, by reason of religion or conscience, will not be required to do so." 4 | ||||||||||||||||
| 2004-DEC-17: Canada: Enshrine Marriage Canada survey results: Enshrine Marriage Canada is a conservative secular group which "seeks to protect the traditional definition of marriage through an amendment to the Constitution that will preserve marriage as the union of one man and one woman." They arranged to have the Nordic Research Group sample 1,025 Canadians by telephone from 2004-DEC-11 to 17. The margin of error is 3.1%. The subjects were asked the question: "Do you support/oppose keeping the definition of marriage as a union of one man and one woman?" They found that 59.8% support the current definition of marriage. Unfortunately, they have not released the percentage in favor of allowing all committed couples to marry, and the percentage who had no opinion or who refused to answer. 15 | ||||||||||||||||
| 2004-DEC-21: NF: SSM legal in Newfoundland/Labrador: The Supreme Court of Newfoundland ruled that the province must marry same-sex couples. This means that SSM is legal and available in seven out of ten provinces and one out of three territories. The population of these provinces total about 87% of the Canadian population. More details. There are initial indications that a lawsuit may be launched in Alberta to legalize SSM in that province. More details. | ||||||||||||||||
| 2005-JAN-07: Manitoba: Marriage commissioner refuses to resign: Focus on the Family, Canada reported that Kevin Kisilowsky of Stonewall, Manitoba, told the Winnipeg Sun in late December that he will not marry same-sex couples and has also refused to resign his post as ordered by the Vital Statistics office. He said: "I've basically said no." He believes that the government order violates his constitutional right to freedom of speech. He has initiated a complaint to the Manitoba Human Rights Commission.16 | ||||||||||||||||
| 2005-JAN-10: Canada: Justice minister hopes SSM
bill to be law by the summer: Justice Minister Irwin Cotler told the
Canadian Press that the bill to legalize SSM should be submitted to
Parliament in early February. It will be accompanied by amendments to a
number of other acts, including the federal Divorce Act. He said: "It
will be introduced and there will be the customary debate. I'd like to think
that it would pass...before the House rises in June......If the bill
does not pass, the likelihood is that the constitutional development will
continue in the other provinces, and we will likely see this issue being
arrived at one by one in the courts. My view is that this is an issue of
minority rights and equality rights......This has nothing to do with
religious marriage. We're talking only about civil marriage......My
own appreciation of cabinet is that they are very solid on this, and that
the discussion within cabinet has reflected that solidarity." Cotler
expects that a "strong majority'' of Liberal backbenchers will
support the bill, along with the NDP and the Bloc Quebecois. He
predicted that: "Even among the Conservative party I think you will find
that there are members who are voting in favor.'' As of JAN-10, courts in seven of ten provinces and one of three territories had legalized SSM. This represents about 87% of the Canadian population. 12 | ||||||||||||||||
| 2005-JAN-15:
AB: Roman Catholic bishop condemns
SSM: Frederick B. Henry, bishop of Calgary in Alberta issued a pastoral
letter condemning SSM. He told his parishioners that the goal of the
homosexual movement is not simply to obtain the various rights and
obligations of marriage. It is a "...powerful psychological weapon to
change society’s rejection of homosexual activity and lifestyle into
gradual, even if reluctant, acceptance." In a remarkable statement, he
writes: "Since homosexuality, adultery, prostitution and pornography
undermine the foundations of the family, the basis of society, then the
State must use its coercive power to proscribe or curtail them in the
interests of the common good. It is sometimes argued that what we do in the
privacy of our home is nobody’s business. While the privacy of the home is
undoubtedly sacred, it is not absolute. Furthermore, an evil act remains an
evil act whether it is performed in public or in private." It is
unclear exactly what type of government oppression of gays, lesbians and
bisexuals he is advocating. The phrase "coercive force" seems to imply
that the government should re-criminalize
all same-sex behavior and make sexually active gays, lesbians, and some
bisexuals subject to fines and/or jail sentences. He suggests that same-sex marriage is not an actual marriage because the couple, on their own, cannot procreate. For example, lesbian couples would have to resort to in-vitro fertilization or artificial insemination just as infertile opposite-sex couples must in order to have children. (Both procedures are forbidden by the Roman Catholic church.) "Two individuals of the same sex, regardless of their race, wealth, stature, erudition or fame, will never be able to marry because of an insurmountable biological impossibility." We assume that he is stating that a same-sex couple will never be able to marry in the Roman Catholic Church. Such couples have been marrying by the thousands in civil and in religious ceremonies conducted by liberal faith groups. He urges his parishioners to communicate their rejection of SSM to their members of Parliament. 8,16 More details The Toronto Star newspaper issued an editorial which was critical of Bishop Henry's pastoral letter. They were distressed at two sentences: One called for government oppression of sexual minorities. The other stated that all homosexual acts are evil. The Star stated: "This is a stand the Canadian Conference of Catholic Bishops should promptly distance itself from. So should leading individual Catholic prelates. Weighing in on the specific issue of legalizing same-sex marriage, which the federal government proposes to do, is one thing. Urging Ottawa to 'coercively' target homosexuality is another. This can only inflame prejudice, encourage hate-mongering and undermine the church's pastoral mission to reach out to every community. Henry seems to court controversy. During last year's federal election campaign, he cast doubt on the depth of Prime Minister Paul Martin's Catholicism over the PM's positions on same-sex marriage and abortion. This latest outburst once again crosses the line. Canada's bishops should say so." 9 | ||||||||||||||||
| 2005-JAN-18: India: Sikh leader condemns SSM: Giani Joginder Singh Vedanti, the leading cleric of the Akal Takht in Amristar, theseat of supreme Sikh authority condemned Canada's same-sex marriage policy. He urged Sikhs to prevent such marriages from occurring in Sikh temples anywhere in the world. Prime Minister Martin responded by saying that the Sikh concern is misplaced. He said: "This is a question of civil marriage, not religious marriage. No church, no temple, no synagogue will be forced to provide a marriage in any other way than with those [values] which are accepted by its own beliefs" The Canadian Constitution guarantees that Sikhs and all other religious can legally discriminate against any couple by refusing to marry them. The proposed legislation would merely guarantee that same-sex couples could marry in a civil ceremony anywhere in Canada. Some religious groups will decide to conduct SSM ceremonies; others will not. 10 | ||||||||||||||||
| 2005-JAN-19: ON: Roman Catholic cardinal comes out with all guns blazing: Cardinal
Aloysius Ambrozic, 75, the archbishop of Toronto, released for public
circulation a letter that he had sent to Prime Minister Paul Martin. It
urges him to restrict marriage to opposite-sex couples, even though Canada's
Constitution guarantees persons of all sexual orientations the right to
marry. He suggests that the government use the not
withstanding clause in Canada's constitution to prevent SSM. This clause
allows the government to pass temporary legislation that violates the
constitution for a period of five years. He suggests that the interval would
be helpful to the public because they would have time to fully discuss SSM.
Cardinal Ambrozic made a number of points in his letter:
Not included in the open letter is a suggestion by Cardinal Ambrozic's about the fate of the thousands of same-sex couples who have already married. | ||||||||||||||||
| 2005-JAN-19: Canada: Reactions of Protestant denominations to SSM
legislation:
| ||||||||||||||||
| 2005-JAN-19: Canada: Catholic Civil Rights League asks Justice Minister to restrict marriage: The Catholic Civil Rights League (CCRL) asked federal Justice Minister Irwin Cotler to reconsider his proposed legislation. CCRL president, Philip Horgan, zeroed in on a loophole in the Supreme Courts reference ruling. The Court said that religious institutions were free to decide whether or not to marry same sex couples. But, as Horgan said, "The solemnization of individual marriage ceremonies is a relatively small part of how religions support marriage. They also teach it as an ideal, not only in church, temple or mosque, but also in marriage preparation, counseling programs and in schools, some of which are publicly funded. We have reason to fear backlash from all levels of government if such programs fail to recognize same sex marriages as legitimate or true marriages." He continued: "The definition and social value of marriage is not a question of equality but is rather found within its historical and cultural foundations as the basis of family and society, and the ideal environment for the nurturing of children. For us, to fundamentally alter the nature of marriage is to undermine the family, especially in its role with children." 7 | ||||||||||||||||
| 2005-JAN-20: Canada: Liberal Roman Catholic groups
reject Cardinal's open letter: According to the Toronto Star: "Progressive
Catholic groups have criticized Aloysius Cardinal Ambrozic's letter to the
Prime Minister which urges him to exclude same-sex couples from marriage."
In an interview on JAN-19, Cardinal Ambrozic, referring to SSM, said: "This is an extraordinary social experiment and we should not jump into social experiments that easily...Marriage is a tremendous social stability because of the mutual responsibility of husband and wife for the responsibility of children. It's a tremendous force in our society. If we redefine it we will ultimately destroy it." 11 He seems to imply that:
According to the newspaper accounts, he do not include any proofs of these beliefs. | ||||||||||||||||
| 2005-JAN-25: ON: Letters to the editor:
After a year of relatively inactivity, some letters to the editor about SSM
are being sent to Canadian newspapers. On this date The Toronto Star
published five letters:
| ||||||||||||||||
| 2005-JAN-25: BC: Lesbian couple heard before human rights tribunal: Deborah Ann Chymyshyn and Tracey Smith of Coquitlam, BC, decided to get married in 2003. They booked a local Knights of Columbus hall for their reception. The Knights are an all-male Roman Catholic group. The couple signed a contract, paid the deposit, and mailed out invitations to their wedding guests. The Knights of Columbus heard that theirs was a same-sex wedding, and refused to honor the contract. The couple lodged a complaint with the British Columbia Human Rights Tribunal, stating that they were discriminated against on the basis of their sexual orientation. Their case was heard on JAN-25. 14 [The lesbian couple won. The Knights of Columbus were required to pay $2,000 for the "humiliation" they suffered. The couple has appealed, seeking additional compensation.] 18 | ||||||||||||||||
| 2005-JAN-31: Parliament is scheduled to resume. Justice Minister Irwin Cotler has promised to introduce same-sex legislation as the first order of business. |
Later developments
Possible paths forward to legalize same-sex marriage
References used:
- "Liberal MPs fight to save marriage," Focus on the Family newsletter, Canada, 2004-DEC-15.
- "Some Liberal MPs lobbying to kill same-sex marriage bill," 2004-DEC-13, Hill Times, at: http://www.hilltimes.com/
- "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: http://www.canada.com/
- Michael Valpy, "Block gay marriage, Catholics tell Martin," The Toronto Star, 2005-JAN-19, Page A1 & A4.
- Cardinal Aloysius Ambrozic, "An open letter: Why the rush on same-sex marriage?," The Toronto Star, 2005-JAN-19, Page A19.
- "CCRL urges Cotler to uphold traditional marriage - Serious religious freedom concerns cited," Catholic Civil Rights League, 2005-JAN, at: http://www.ccrl.ca/
- "Bishop Henry - Pastoral letter to be released January 15-16," Catholic Civil Rights League, 2005-JAN, at: http://www.ccrl.ca/
- "Editorial: A bishop goes too far," The Toronto Star, 2005-JAN-19, at: http://www.thestar.com/ This is a temporary listing which requires a subscription to access.
- Tonda MacCharles, "Martin battles Sikh edict," The Toronto Star, 2005-JAN-19, Page A6.
- "Ambrozic under fire: Catholics upset over letter to PM. Say gay marriage is a rights issue," The Toronto Star, 2005-JAN-20, Page B5.
- Jim Brown, "Gay Marriage To Be Legal In Canada by Summer Gov't Says," 365gay.com, 2005-JAN-10, at: http://www.365gay.com/
- Letters to the editor, The Toronto Star, Toronto ON, 2005-JAN-25, Page A19.
- "Same-sex wedding cancelled, panel told," The Toronto Star, 2005-JAN-26, Page A6.
- "A Strong Majority of Canadians Oppose Redefining Marriage. Enshrine Marriage Canada Survey Finds Canadians Want Marriage Protected," EnshrineMarriage.ca, 2004-DEC-17, at: http://www.enshrinemarriage.ca/
- "Marriage commissioners stand their ground," FamilyFacts, 2005=JAN-07.
- F.B. Henry, "On Same-Sex Marriage," 2005-JAN, at: http://www.rcdiocese-calgary.ab.ca/
- The ruling of the British Columbia Human Rights Tribunal is at:
http://www.bchrt.bc.ca/ This is a PDF file. You may require software to read it. Software can be obtained free from:
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Latest update: 2005-MAY-26
Author: B.A. Robinson
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