Same-sex marriage in Canada
2005-JUL-18 & 19: Bill C-38 "Civil
Marriage Act" is debated in the Senate
In this essay, "SSM" means "same-sex marriage." "MP" means
Member of Parliament.
||Same-sex unions and opposite-sex marriage are: "fundamentally very different realities...."
[Married opposite-sex couples] "bring forth future
generations...whereas same-sex unions simply cannot produce progeny."
Petition of 2,321 concerned Canadians from the Greater Toronto region
||"I am proud of the message we are sending to our homosexual
constituents who have suffered from discrimination and stigmatization. We
are telling them that, when they choose a life partner or when they meet the
love of their life, their relationship is equal to a heterosexual
relationship. ...Legally, their partner will never again be considered a
stranger, but rather their legitimate spouse." Speech in the Senate by
Senator Lucie Pépin. 1
Background (to 2005-JUL-19):
By 2005-JUN-29, about 90% of Canadians lived in a province or territory which
has already made SSM available to same-sex couples as a result of court rulings.
Thus, the passing of C-38 would only affect about 10% of the population.
On 2005-JUN-29, the bill was passed by a comfortable majority in the House of
Commons: 158 to 133. It was sent to the Senate for two readings, a
referral to committee and the third and final vote.
||2005-JUL-18: The Senate reconvened. The Standing Senate Committee on Legal and Constitutional Affairs issued its report on Bill C-38. It was two lines long: "Your
Committee, to which was referred Bill C-38, An Act respecting certain
aspects of legal capacity for marriage for civil purposes, has, in obedience
to the Order of Reference of Wednesday, July 6, 2005, examined the said Bill
and now reports the same without amendment." The
committee had examined the bill thoroughly and heard testimony from 33
individuals and groups -- 14 opposed and 12 in favor of C-38. The committee
attempted to strike a balance by inviting roughly equal numbers with
opposite viewpoints They returned
the bill unchanged to the full Senate for the third and final reading. 2
||Senator Consiglio Di Nino presented a petition from "...2,321 concerned Canadians from the
Greater Toronto region." They represented about 0.05% of the total
population of the area. The petition stated that same-sex unions and
opposite-sex marriage are "fundamentally very different realities."
Married opposite-sex couples "bring forth future
generations...whereas same-sex unions simply cannot produce progeny."
The petitioners are apparently unaware of the children produced by
lesbian couples mainly through artificial insemination or by gay couples
occasionally through surrogate motherhood. They ask that the Senate amend C-38 to:
||"...Promote a different name for same-sex 'marriage' to indicate
that in essence it is different from traditional [opposite-sex]
||Protect the rights of religious groups to continue to be able to
discriminate against same-sex couples. For example:
||Protect the right of marriage commissioners to refuse to marry
||Protect the right of church organizations to refuse to allow
same-sex couples to use their property.
||Protect the rights of parents and school teachers, apparently to
veto any positive references to same-sex couples in family life
||Senator Serge Joyal submitted a motion for the third reading of C-38. He mentioned
that each and every member of the Standing Senate Committee on Legal
and Constitutional Affairs attended all of the meetings of the
committee. This is an unusual occurrence. They heard from 33 witnesses -- academics, clergy, and social
activists. Many of the meetings were broadcast on TV via the CPAC
Some of the
points raised by the witnesses were:
||Civil unions? Should we enlarge the definition of marriage to
include same-sex couples, or should we create a system of civil unions
with the same rights and obligations of marriage? Joyal referred to the
Webster online dictionary, the Oxford Dictionary (2005), and the
Encyclopaedia Brittanica,. All three give two definitions for
the term "marriage:" The first refers to a union of an opposite-sex
couples; the second refers to a union of a same-sex couples. All three
references show an evolution in the meaning of the word "marriage"
from past definitions which only recognized opposite-sex marriage.
He suggested that isolating same-sex couples into civil unions is wrong.
He cited the 2003 decisions of the Ontario Court of Appeal and the British Columbia Court of Appeal, both of which rejected the creation of an "almost equal"
category to accommodate same-sex couples. He noted that Quebec, Nova Scotia, Manitoba and Alberta
had created systems of domestic partnerships or civil unions. He referred to
a Supreme Court decision that the way to maintain equality is to give
access to both kinds of couples within the same institution. He said: "...that
is what this bill is all about. It maintains accessibility to the same
institutions for same-sex couples and opposite-sex couples. Our
committee dealt with this issue at length with the support of the
||Religious freedom. This is mentioned in five different places
within C-38. The bill is backed up by the 2004-DEC ruling on the references by the Supreme Court. They said
that the Canadian Charter of Rights and Freedoms -- Canada's
constitution -- implies that church officials have the right to freely
discriminate against same-sex couples by refusing to celebrate same-sex
marriages, and by denying them the use of "sacred spaces" for
their marriage rituals. He noted that five provinces, including Quebec
and Ontario, have passed laws reinforcing the right of clergy to
discriminate against same-sex couples if they wish. The Supreme Court
ruled on the matter of civil commissioners being motivated by their
religious beliefs to refuse to marry same-sex couples. The court said
that no one should be compelled to act in a way that is contrary to his
or her belief. It is up to the state to accommodate the needs of the
couple and the commissioner, presumably by substituting another
commissioner whose religious faith does not include discrimination
against same-sex couples in marriage.
||Status of gay and lesbian children: Joyal refered to
testimony by Professor Ian Kroll, a psychiatrist from the University of
Calgary. He mentioned that students who recognize that they are
homosexual are "...five to six times more likely than their
heterosexual classmates to be targets of violence at school or when
traveling to and from school; that because of negative attitudes they
are twice as likely to feel unsafe; that because they feel alienated,
they are more likely to use high-risk drugs later in life; and that they
are three times more likely to attempt suicide than other children in
school. That is the reality of [homosexual] children today."
||Status of children of same-sex parents: Joyal said: "Same-sex
couples compare on measures of relationship quality. Lesbian and gay
parents are as likely as heterosexual parents to provide supportive and
healthy environments for their children. The development of sexual
identity, personality and social relationship develops similarly in
children of homosexual and heterosexual parents. The belief that gay and
lesbian adults are not fit parents or that the psychosocial development
of the children is compromised has no basis in science. Our position is
based on the review representing approximately 50 empirical studies and
at least another 50 articles and book chapters, and does not result from
the results of any one study. These articles appeared in such journals
as Developmental Psychology, The Journal of Child Psychology and
Psychiatry, American Psychologist, Marriage and Family Review, American
Journal of Orthopsychiatry, et cetera."
||Senator Gerry St. Germain: He opposes C-38 as it is now
written. He feels that the Committee did not spend sufficient time
examining the bill.
Some of his points were:
||Justice: He said that C-38, while possibly "...providing
justice to one group of people takes away justice from another group."
He feels that marriage should continue to be restricted to opposite-sex
||Fate of children: He appears to believe that same-sex couples cannot be as good parents as opposite-sex parents,
on average. This conflicts with the studies cited by Senator Joyal. St. Germain said: "...if the government's bill is
accepted, the Parliament of Canada will be saying that marriage is no
longer linked to the heterosexual capacity for procreation or to the
sociological and psychological reality that children flourish the best
when they are raised in an intact family headed by a married mother and
father. We will be saying that marriage is not about providing for the
future of children in society but about serving the needs of adults in
close personal, emotional and sexual relationships....Suddenly
the millions of [opposite-sex] married couples in Canada will no longer
be recognized as being in conjugal, procreative, intergenerational
unions, unions that are the foundation of society and the basis of its
continuity. Instead, all marriages, homosexual or heterosexual, will
become legally sanctioned, personal, emotional relationships that have
no intrinsic purpose beyond the welfare of the two individuals involved."
||The "so-called protections [in C-38] will not work... the rights
of religious believers and others who conscientiously oppose same-sex
marriage will be at the mercy of the courts." That is, the rights of
individuals to discriminate against homosexuals may be regarded as less
important than the rights of homosexuals to live free of discrimination.
||He said: "...the human rights tribunals that so far have tended
to see the equality rights of same-sex couples as trumping freedom of
religion or freedom of expression." He noted that marriage
commissioners in several provinces, including Saskatchewan and
Newfoundland, have been forced to resign because they were motivated by
their religious beliefs to refuse to marry same-sex couples. He
suggested that bill C-38 be delayed until all of the provinces pass
legislation to protect those who want to discriminate against same-sex
||He cited the R. v. Harding case before the Ontario Court of
Appeal which ruled in a case involving the promotion of hatred against an identifiable
group. They determined a defendant cannot claim as a a defense that the hatred was based on sincere religious belief
||2005-JUL-19 (cont'd): Motion to delay C-38:
||Senator St. Germain moved that the third
reading of C-38 be delayed six months to mid-2005-JAN:
||Senator Jack Austin cited a Globe and Mail/CTV poll
which found that 55% of Canadian adults surveyed said that the next
government should let the same-sex legislation stand. 39% wanted it
repealed or amended. He suggested that "there is no point in further
||Senator Terry Stratton suggested that the Committee should
have spent more time studying why some of the countries in the world
that allow same-sex marriage do do not allow same-sex couples to adopt. The
Committee also has not studied why other countries that have civil
unions or similar arrangements for same-sex couples do not grant them
all of the rights and obligations of opposite-sex married couples.
||The Senate voted 52 to 19 to reject Senator St. Germain's motion to
delay C-38 by six months.
||2005-JUL-19 (cont'd): Motion to amend C-38:
||Senator Noël Kinsella proposed an amendment that involved:
||A new clause 2 inserted to C-38 and that the remaining sections
||The new clause 2 would state the historical fact that "Parliament
has recognized and continues to recognize the traditional marriage of
one man and one woman"
||The renumbered clause 3 would read: "Notwithstanding section 2,
marriage for civil purposes...." He feels
that this would promote healing and harmony across the country.
||Senator Serge Joyal opposed the amendment because:
||The existing clause 2 already recognizes both same-sex and
||It would cast doubt on the validity of the unanimous decisions of
courts and the Supreme Court of Canada.
||The "notwithstanding" clause implies a hierarchy of
importance between opposite-sex and same-sex marriages. This is
directly in opposition with the intent of the bill which is to establish
equal access to marriage by all couples.
||Senator Anne Cools spoke in favor of the amendment because it
reduces the radical nature of the bill. Marriage has traditionally been
the union of a man and woman for the procreation of children. If the
government wants to give equal rights to same-sex couples, they must
first amend the sections of the Constitution Act of 1867 which deal with
marriage and divorce.
||Senator J. Michael Forrestall spoke in favor of the amendment
and of the need to proceed slowly and investigate all aspects of the
proposed legislation thoroughly.
||Senator Lucie Pépin noted that: "...over the past number
of months, eight provincial courts, one territorial court, the Supreme
Court of Canada, the House of Commons, a special legislative committee
and the Standing Senate Committee on Legal and Constitutional Affairs
have each voted in favor of a more inclusive definition of the concept
of marriage.....We may rightly be proud of being part of a country that
has chosen to protect the rights of minorities and that recognizes the
need for our laws to do the same....The distinction between civil
marriage and religious marriage, between the contract and the sacrament,
has been made clear....Religious freedom is clearly protected in Bill
C-38, just as it is in the Canadian Charter of Rights and Freedoms from
which it draws its inspiration....I am proud of the message we are
sending to our homosexual constituents who have suffered from
discrimination and stigmatization. We are telling them that, when they
choose a life partner or when they meet the love of their life, their
relationship is equal to a heterosexual relationship. As long as that
couple stays together, they will receive the same recognition and,
should they separate, they will receive the same protection. Legally,
their partner will never again be considered a stranger, but rather
their legitimate spouse....Bill C-38 is a reminder that the decision to
get married or not is indeed a lifestyle choice. Sexual orientation is
neither a choice nor a lifestyle"
||Senator Leonard J. Gustafson opposed C-38. He suggested that
public opinion polls are without validity. Everyone he has talked to is
opposed to SSM. He read into Hansard brief notes opposing C-38 from many religious
conservatives: the Evangelical Fellowship of Canada, Campaign Life
Coalition Manitoba, Canadian Conference of Catholic Bishops, as well as
individuals following Christianity, Hinduism, Islam, Judaism, and Sikhism. He concludes: "My hope is that the Senate does the
right thing in respect of Bill C-38" presumably by defeating it.
||Senator Jane Cordy spoke in support of C-38. She taught a
class of 38 students in 1970, all of whom had a mother and a father and
were part of traditional families. In her last year of teaching, 2000, "...there
were students in my school being raised by single mothers and single
fathers. There were stepmothers and stepfathers. There were kids being
raised by grandparents and kids being raised by foster parents. There
were kids who had not met a biological parent....It has been my
experience as an elementary school teacher for 30 years that children
thrive in a loving, caring, supportive home. The gender of the parents
is not important. What is important is a family sharing mutual love,
respect, responsibility and faithfulness....Allowing same-sex couples to
marry will not diminish the marriage of an opposite-sex couple. Gay and
lesbian couples can now live together. I suggest we do the right thing
and allow them to marry."
||Senator Consiglio Di Nino expressed concern about rumors that
thirty marriage commissioners in three provinces have lost their job
because they were not allowed to refuse to marry same-sex couples. They
included at least 10 in Newfoundland, 12 in Manitoba and at least eight
in Saskatchewan. He said: "This debate is not about love and respect,
as some would have us believe, nor is it about same-sex couples joining
in a lifelong relationship of support, comfort, responsibility and, yes,
love. Our communities have mostly accepted this and it is now, or soon
will be, a reality across our country, as it should be. For me, and I
believe the majority of Canadians, it is the word 'marriage' that
defines — and has defined for centuries, at least — the union of a man
and a woman."
||Senator David P. Smith spoke in support of C-38. He said: "I
regard myself as a Christian. To me, Christianity means many things. It
means love, understanding, compassion, respect for fellow human beings,
tolerance and equality of rights. I believe that this issue deals with
equality, the Charter and minority rights. I do not accept that it
really is an issue that is a religious or faith issue..... My friends on
the other side, I love you; I respect our faiths. We will continue to be
friends and have fellowship together. I just have a different
perspective. I want to reach out to this community and give them the
minority rights that the Charter promises them."
||Senator Tommy Banks suggested that there are already two
orders of marriage in Canada: "traditional marriage," and
common-law marriage. There is no discrimination involved, even though
they are called by different names. He moved a subamendment to Senator
Kinsella's amendment which would substitute for clause 3: "Notwithstanding
section 2, Parliament has recognized and continues to recognize the
traditional marriage of a woman and a man; and..."
||Senator Céline Hervieux-Payette opposes C-38. She concluded from an examination
of various dictionaries: "...that marriage is the union of a man and
a woman and almost always for the purpose of procreation....I maintain
that this bill is more a political action than a legal exercise
confirming the equality rights of same sex couples" She quoted Dr.
Margaret Somerville, a McGill University specialist in ethics. She said:
"When restricted to one man and one woman, marriage establishes as
the norm the rights of children to a biological father and mother
who will raise them ...Because same-sex marriage is not based on
procreation, it deprives all children of such rights, not just the
children of same-sex couples. Bill C-38 expressly recognizes and
applies this change by redefining the parental condition in general,
changing it from the natural, or biological, parental condition to
the legal parental condition. This is the effect of Bill C-38....The
rights of children must include:
- The right to be conceived with a
natural biological heritage — that is to say unmodified biological
origins — and to be conceived with natural sperm from an identified man
and a natural ovum from an identified woman; and
- The right to know
the identity of their biological parents."
concluded: "I cannot agree to vote in favor of Bill C-38 as it
stands. It would run counter to my profound convictions on my role as a
senator, which is to protect Canadian institutions and the most
vulnerable of Canadians, our children."
||Confusion: By this time, it was not clear whether individual
senators were discussing Bill C-38, or the amendment to modify it, or
the sub-amendment to modify the amendment.
||Senator Jean Lapointe indicated his support for C-38.
||Vote: The senators rejected Senator Banks' sub-amendment by a vote of 46 to
24 with 3 abstentions.
||Vote: The senators rejected Senator Kinsella's amendment by a vote of 46
to 24 with 4 abstentions. Debate resumed on the motion for third reading
of C-38. 1
Later developments: C-38 is
passed by the Senate and signed into law
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Debates of the Senate (Hansard)," Volume 142, Issue 84, 2005-JUL-19,
- "Report of the committee" 2005-JUL-18, at: http://www.parl.gc.ca/
Copyright © 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUL-22
Author: B.A. Robinson