SAME-SEX MARRIAGE (SSM) IN CANADA
PAST PREDICTIONS OF THE FATE OF SSM LEGISLATION
Status of SSM in Canada:
As of 2005-JUL-19, the date when the federal marriage bill C-38 was passed by
Parliament, same-sex couples were able to marry in 8 out of 10 provinces, (British
Columbia, Manitoba, New Brunswick, Newfoundland/Labrador, Nova Scotia, Ontario, Quebec, Saskatchewan), and in
one of three territories (Yukon territory). This represented about 90% of the
population of Canada. In each case, provinces
and territories in Canada were unwilling to allow couples to marry in their jurisdiction
until the governments were ordered to
do so by the courts.
The federal government's bill C-38 to expand the definition of
marriage to include both same-sex and opposite-sex couples passed the House of
Commons on 2005-JUN-28 and passed the Senate by a vote of 47 to 21 with three
abstentions on 2005-JUL-19. It was signed into law on 2005-JUL-20. SSM is now
available across Canada in all provinces and territories.
The following is now of historical interest only. It represents past
speculation on how and whether SSM would be legalized in Canada.
An Ontario appeal court decision in 2003-JUN
legalized SSM in Ontario and ordered the provincial government to issue
marriage licenses. It apparently resulted in a great deal of tourist business as
Canadian and American same-sex committed couples came to Ontario to get married.
Ironically, this started when tourism was suffering in the Toronto area
because of the SARS outbreak. SARS was confined to some Ontario hospitals,
and never escaped to the community. In 2003-SEP, the last
patient was released from hospital.
At the time of the decision by the Ontario Court of Appeal, the
federal government's path forward
was difficult to predict:
||Jim Munson, spokesperson for Jean Chrétien
said that the Prime Minister is "reserving judgment on making a
decision on this...the feeling is that Parliament will have to make this
||Justice Minister Martin Cauchon told reporters that court decision
leaves gays and lesbians in Ontario free to marry "for the time being."
He refused to say whether these marriages would be later invalidated by
legislation. He said "Listen, the marriages that are taking place now
are effectively legal marriages on the basis of the decision of the appeal
court rendered [JUN-10]. I say for the time being because I can't presume
the future. We want to make sure that we're going to have a national
solution to that question. Having said that, I'm not in a position to
today to give you the official government position." 1
||Foreign Affairs Minister Bill Graham gave an impassioned plea behind
closed doors at the weekly caucus meeting of the Liberal party in favor of
legalization of same-sex marriages. A source said that Graham called on
Liberals to be "courageous" and to recognize the clear direction
that the courts are taking on interpreting the Charter rights of gays and
lesbians. The source said: "He said it was clear where an ultimate
judgment would lead us, because the Charter implications are clear. It's
obvious we're looking at the legalization of marriage [for gays and
lesbians] so delaying it further would not make sense if as Liberals we
support the Charter. Let's show that we Liberals live in the 21st century.
Let's show the young people of Canada what we're all about. Let's be
courageous and deal with it as soon as possible." 1
The federal government appeared to have had five main options at that time:
||It could have done nothing, and wait until a series of challenges grind
through the courts of each province, gradually legalize same-sex marriage
across Canada, one province and territory at a time. This was an
unlikely choice, because it would make the government appear weak and
||It could have decided to maintain marriage as a union of one man and one
woman. This would require the use of the "notwithstanding" clause to opt out of the
Charter of Rights and Freedoms. More details.
This would overrule any decision by the Supreme Court and by the three
provincial appeal courts which have ruled on same-sex marriage. However,
the legislation would have to state that they are aware that the
legislation violates the Charter. Also, they would have to
re-introduce and pass the legislation every five years. Both would be
profoundly embarrassing to the government and distressing to much of the
||It could have appealed the Ontario court ruling to the Supreme Court of Canada.
The Federal Government would probably have lost fewer votes in the 2004 election
if they had taken this route. With the senior courts in so many
provinces unanimously ruling in favor of same-sex marriage, an appeal to the
Supreme Court would have been a lost cause. But it would transfer
responsibility for the decision to allow same-sex marriages from
Parliament to the Supreme Court, and thus take some considerable heat off of the
||Parliament could pass a "reference." This is typically a piece
of legislation listing questions upon which the Supreme Court would be
asked give a ruling. This was previously done in
1998 over the rules for the secession of Quebec.
||The ruling Liberal party could prepare a reference and pass it to the
Supreme Court for a non-binding ruling.
The federal cabinet, and Liberal party caucus, and the people of Canada
remained seriously divided on the issue of equal marriage rights for gays and
lesbians. A slim majority of adults favored SSM at the time. Among young
adults, support is quite strong. Older Canadians are heavily opposed.
At the 2003-JUN-17 cabinet meeting, the Liberal government decided to take the last
option described above. They choose to not appeal the
ruling of the provincial court rulings. They accepted the
principle that the Canadian Charter of Rights and Freedoms -- Canada's
constitution -- guarantees that same-sex couples must have equality with
opposite-sex couples, and be free to marry. One government insider said that the
cabinet meeting involved "powerful discussions." 2 The
source also said that the final decision was unanimous. However, there are some
indications that cabinet members remain personally divided on the matter. More details
On 2003-JUL, the reference was made public and submitted to the Supreme Court of Canada for review.
The Court was asked to rule on the reference on whether:
||The Federal Government has the sole right to define who can marry.
||The draft legislation is compatible with the
Canadian Charter of Rights and Freedoms, and is thus constitutional.
||Clergy can continue to discriminate against some engaged couples by
refusing to marry them.
The third queston asked whether religious institutions would be protected
against lawsuits if they refused to marry a same-sex couple because of their
sex. In the past, churches have regularly refused to marry couples with marriage
certificates on the basis of the couple's religion, race, age, disability
status, degree of consanguinity, lack of maturity, etc.
without being sued. But many conservative religious leaders have indicated
apprehension that they may be sued in the future by same-sex couples.
In a surprise move on 2004-JAN-28, the federal government added an additional
question to the reference: whether the existing marriage law which denies
same-sex couples the right to marry is constitutional. If it is not, the
government asks in what particulars and to what extent is it not constitutional.
In asking this question, the government may be trying to determine if there are
any other constitutional options open to it other than giving same-sex couples
the right to marry.
On 2004-DEC-09, the court delivered its ruling. They answered the original
three questions in the affirmative. They side-stepped the fourth question, by
saying that many lower courts had already ruled that the constitution requires
SSM, and that the government had accepted those decisions. The refusal to answer
the fourth question guaranteed that SSM would generate intense conflict in
Legislative progress of Bill C-38:
On 2005 FEB-01, the federal government introduced its bill C-38 to amend the marriage act
and some other acts to Parliament.
On APR-12, a Conservative party amendment which would have prohibited same-sex
couples from marrying, and would have substituted a "separate but equal" system
of civil unions was defeated by a vote of 164 to 132.
On JUN-28, bill C-38 was
passed by the House of Commons by a vote of 158 to 133 and sent to the Senate.
The Senate is an appointed, not elected, body. As such, many members feel
that they should not interfere with bills forwarded from the House of Commons.
However, senators who are members of the Conservative Party decided to
introduce amendments to bill C-38.
||If any of the amendments are approved, then the bill would have to be
returned to the House of Commons for a final vote.
||If all of the amendments are rejected, and if the majority of Senators
vote in favor of the bill, it would proceed to the Governor General who would
finally sign the bill into law.
The Liberal Party currently holds a large majority in the Senate. The chances
of an amendment passing were slim, but not zero. Several were considered, but
all were defeated.
Bill C-38 was passed by the Senate on 2005-JUL-19, and signed into law on the
Canada become the fourth country in the world to allow same-sex marriages
throughout its entire territory. (The other three are the Netherlands,
Belgium, and Spain).
"Same-sex couples rush to altar," The Toronto Star,
2003-JUN-12, Pages A1 and A24.
Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
Copyright © 2003 to 2005 by Ontario
Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson