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SAME-SEX MARRIAGE (SSM) IN CANADA

Positions taken by various groups concerning SSM

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Sponsored link.

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There was little consensus during Parliamentary debates on SSM:

Prior to the signing of bill C-38 into law on 2005-JUL-20, various groups in Canada took opposing stands on same-sex marriage (SSM):

bulletGay and lesbian, human rights, civil liberties, the New Democratic Party, the Bloc Quebecois, and religiously liberal groups supported the government's bill C-38 which expanded marriage to include same-sex couples. They are critical of the Vermont and New Zealand style civil unions as an option for same-sex couples. Civil union legislation would give same-sex couples similar rights and obligations to opposite-sex marriage couples without defining their relationship as a marriage. It would brand same-sex unions as inferior without the status of "traditional" or "real" marriages.
bulletSome religious and social conservatives originally advocated that the government take no action. They argued that the Supreme Court of Canada's answers to the reference does not require the federal government to revise the marriage act. In doing so, they ignored the unanimous rulings of the highest courts in British Columbia, Ontario, Quebec, etc. which unanimously declared the present marriage act to be unconstitutional and required the provinces to issue SSM licenses. This position became untenable after the federal Liberal party introduced SSM legislation into Parliament on 2005-FEB-01.
bulletOther conservative groups called for a national referendum on SSM. A majority of persons voting in a referendum would almost certainly reject SSM. Only those adults who are sufficiently motivated to get out and vote would be counted. Those who are opposed to SSM tend to be much more highly motivated than those who approve of it. Younger adults, who strongly favor SSM, are traditionally less inclined to vote. A referendum would give a very precise indication of the opinion of those who voted, but would not accurately reflect the feelings of the entire country.

A referendum also raises a dangerous precedent: it would imply that the civil rights of any minority -- sexual, religious, racial, language, etc. could be terminated at any time. Much of the public feels that human rights of minorities should not be subject to a majority vote of Canadians. One of the main purposes of a country's constitution, like Canada's Charter of Rights and Freedoms is to prevent the majority from oppressing minorities by withdrawing their rights.
bulletThe Roman Catholic Church called on the government to scrap its legislation and replace it with a law which emphasizes that marriage is restricted to one man and one woman. Essentially all constitutional experts agree that this would require a clause invoking the not-withstanding provision of the Canadian Constitution. That clause allows governments to pass temporary legislation that violates the Charter of Rights and Freedoms: Canada's constitution. The law would automatically expire after five years, and have to be passed again. There does not appear to be much enthusiasm in the country for such a law. More details.
bulletMainline/Liberal Protestant groups:
bulletThe largest and most liberal of the Protestant denominations in Canada, the United Church of Canada, is supporting the government's legislation to make marriage available to all couples: opposite-sex and same-sex.
bulletThe General Synod of the second largest Protestant denomination, the Anglican Church of Canada, decided to take no position on SSM. They have decided to stay out of the debate. They are experiencing massive internal dissention within their own denominations and criticism from the worldwide Anglican Communion. They appear to be lying low.
bulletThe Evangelical Fellowship of Canada who represent the most conservative wing of Protestantism, has given little support for not-withstanding legislation. They want a "permanent" ban on marriage equality, through the use of a Federal Marriage Amendment (FMA) to the Charter of Rights and Freedoms. This would be similar to the failed American FMA legislation which was defeated during 2004 in the U.S. Senate. Amending the Canadian Constitution is a laborious and time consuming task. There does not appear to be much enthusiasm for this path. Even if such an amendment were implemented, it would probably only be a temporary fix. All the polls indicate that younger Canadian adults are as strongly supportive of SSM as older Canadian adults are opposed. If this trend continues, then the mood of the country will become more accepting of SSM as younger adults increase in political power and elderly Canadians disappear from the scene. The Constitution would probably be re-amended to restore equal marriage rights for all Canadians later in the 21st century.  More details.
bulletThe Centre for Cultural Renewal: Iain Bensen, executive director of the Centre for Cultural Renewal wrote: "There are two perfectly valid approaches to same sex marriage. One is to completely disregard the validity of same-sex marriage because one quite legitimately believes it wrong. The second is to accept same-sex marriage. Both are valid viewpoints. Should one be the constitutional norm or should the State be neutral as between the two?....The State should stay out of the question of sexual dogma just as it stays out of the question of religious dogma. We cannot agree about sexual conduct and its acceptability. Therefore, to determine that one side of the debate on marriage should prevail is to make a mistake. As many of the witnesses before the Committee have indicated, it is to make a very big mistake, one that threatens the beliefs and place of belief of many religious Canadians." He suggested that the state abandon marriage, and leave it up to the religious organizations of Canada. Presumably, he recommend that the government merely register relationships, whether they be same-sex or opposite-sex. Then, it would be up to the churches, synagogues, mosques, temples, circles and other religious groups to marry any couple who wants to be married and who meets the criteria of their religion. 2

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Two paths forward to withdraw SSM, since bill C-38 became law:

SSM became available throughout Canada, when bill C-38 was signed into law. There now appear to be only two methods by which same-sex couples can be deprived of the equality in marriage that they currently enjoy:

bulletIntroduction of forcible divorce legislation: The Alliance Party, a predecessor to the current Conservative Party of Canada favored no recognition of the relationships of same-sex couples at all. Committed same sex couples, even if they had been together for decades and raised children would have the status of roommates without the many hundreds of rights, obligations, protections for themselves and their children enjoyed by married families.

The Conservative Party currently favors legislation that would create a parallel system of civil unions -- with separate but equal rights and obligations to opposite-sex marriage. Their leader, Stephen Harper, promised on 2005-JUN-28 that if his party forms a new government, they will bring in bill to forcibly divorce all same-sex married couples, and lower their status to being merely civil unionized couples. Such a bill would probably face the combined opposition of the other three parties. However, the Conservatives may be able to force the legislation through if they win a majority position in the next Parliament which is expected to be chosen in 2006-Spring.

A group of 134 legal and constitutional experts recently gave their opinion that such legislation would be unconstitutional. 1 It would be certain to trigger a lawsuit in which the courts would be asked for an immediate, temporary injunction. It is almost certain that the courts would declare such legislation unconstitutional.
bulletUse of the Notwithstanding clause: Canada's constitution, the Charter of Rights and Freedoms may well be unique in the world. It contains a provision that legislators around the world would dearly like to have access to in their own country. The Charter contains a notwithstanding clause by which governments can  over-ride the constitution. They can write a bill that is clearly unconstitutional, invoke the notwithstanding clause in its text, and pass the bill into law. It could not be overthrown by the courts.

There are two factors that restrict its use.:
bulletThe notwithstanding clause has a sunset provision. Legislation that is created with it automatically expires after five years and has to be renewed.
bulletInvoking the notwithstanding clause would probably generate an incredible degree of rage among the electorate and media. Canadians tend to be very fond of their constitution, and in particular of its human rights clauses. Any government that took this path would probably suffer a major backlash at the subsequent federal election. 1

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Statements by conservative groups opposed to allowing same-sex couples to marry:

bulletCanadian Conference of Catholic Bishops
bulletCongress on the Family
bulletEvangelical Fellowship of Canada
bulletInstitute for Study of Marriage, Law and Culture
bulletLutheran Church of Canada
bulletNew Vatican Document on Homosexual Unions
bulletOrthodox Church of Canada

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References used:

  1. "Lawyers challenge Harper's same-sex position," Canadian Broadcasting Corporation, 2005-JAN-25, at: http://www.mytelus.com/
  2. "A personal note from Iain Benson at this critical time," mass mailing, Centre for Cultural Renewal, 2005-JUN-10.

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Copyright © 2003 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson

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