Many religious conservatives are concerned about same-sex marriage in two
main ways:
The legislation was sent as a "reference" to the Supreme Court of
Canada on 2003-JUL-17. The government
asked the court for a non-binding ruling on three questions -- later increased
to four. The third question was:
"Does the freedom of
religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and
Freedoms protect religious officials from being compelled to perform a
marriage between two persons of the same sex that is contrary to their
religious beliefs?" 1
The Supreme Court's reply to the reference
questions:
Over 16 months later, on 2004-DEC-09, the
Supreme Court of Canada answered the reference
questions. The court stated that The Charter of Rights and Freedoms guarantee
that clergy and faith groups are free to continue their discrimination against
same-sex couples . They wrote:
"The Proposed Act is limited in its effect to marriage for civil
purposes: see s. 1. It cannot be interpreted as affecting religious
marriage or its solemnization. ..."
"Absent state compulsion on religious officials, this conjecture does not
engage the Charter. If a promulgated statute were to enact
compulsion, we conclude that such compulsion would almost certainly run
afoul of the Charter guarantee of freedom of religion, given the
expansive protection afforded to religion by s. 2(a) of the
Charter. ..."
"The right to freedom of
religion enshrined in s. 2(a) of the Charter encompasses the
right to believe and entertain the religious beliefs of one’s choice, the
right to declare one’s religious beliefs openly and the right to manifest
religious belief by worship, teaching, dissemination and religious practice.
... The performance of religious rites is a fundamental aspect of religious
practice.
"... concerns were raised about the compulsory use of sacred places for the
celebration of such marriages and about being compelled to otherwise assist
in the celebration of same-sex marriages. The reasoning that leads us to
conclude that the guarantee of freedom of religion protects against the
compulsory celebration of same-sex marriages, suggests that the same would
hold for these concerns.
"... absent unique circumstances with respect to which we will not
speculate, the guarantee of religious freedom in s. 2(a) of the
Charter is broad enough to protect religious officials from being
compelled by the state to perform civil or religious same-sex marriages that
are contrary to their religious beliefs."
3
Douglas Elliot, a
lawyer who represented the gay-positive Metropolitan Community Church of
Toronto commented on the court's response. 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. ... 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." 4,5
The final law C-38:
The Civil Marriage Act was proclaimed as law on 2005-JUL-20. The
key parts regarding religious freedom to discriminate are contained in Section 3:
3. It is recognized that officials of religious groups are free to refuse to perform
marriages that are not in accordance with their religious beliefs.
3.1 For greater certainty, no person or organization shall be deprived of
any benefit, or be subject to any obligation or sanction, under any law of
the Parliament of Canada solely by reason of their exercise, in respect of
marriage between persons of the same-sex, of the freedom of conscience and
religion guaranteed under the Canadian Charter of Rights and Freedoms or the
expression of their beliefs in respect of marriage as the union of a man and
woman to the exclusion of all others based on that guaranteed freedom.
4. For greater certainty, a marriage is not void or voidable by reason only
that the spouses are of the same-sex.
It is important to realize that
Section 3.1 refers only to federal law; it is up to the individual provinces and
territories to pass laws protecting persons subject to provincial law. It is the
provinces that establish the systems to register persons authorized to perform
marriages, to register the marriages, etc.
The right of religious institutions to discriminate outside
their sacred space:
The Supreme Court did confirm that the Charter of Rights and
Freedoms, Canada's constitution, offers clergy broad protection on 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. They will be able to safely continue this in the
future as they wish.
The court did state that a church could freely discriminate on
any basis by refusing to allow its "sacred space" to be used for marriages.
However, they do not seem to have ruled on a situation in which a same-sex couple
approached the church to rent a church hall, or use a religious campground or
other property owned by the faith group, to be married by a chaplain or member
of the clergy who had no problem with same-sex marriages.
This situation arose in British Columbia before a human rights
tribunal in late 2005. The local branch of the Knights of Columbus, a Roman Catholic group,
unilaterally cancelled an existing contract for the rental of a church hall owned by the
Roman Catholic Archdiocese of Vancouver. Their reason was that the couple who
wanted to use the hall to get married were both female. Canadians for Equal
Marriage commented:
In the Knights of Columbus case, the B.C. Human Rights
Tribunal ruled that even quasi-religious organizations like the Knights are
protected by the Charter of Rights and Freedoms and do not have to rent
their halls for weddings or receptions of same-sex couples. Because the
Knights agreed to rent the hall, signed a contract to that effect, and then
cancelled the contract after the couple had gone ahead with their plans,
they were fined for treating the couple unfairly. However, the precedent is
clear – the Knights’ policy not to rent to same-sex couples is legal. So
this is a case of freedom of religion trumping equality, not the other way
around. 6 More details
Cases involving marriage
commissioners:
References used:
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Mike Murphy, "Minister of
Justice announces reference to the Supreme Court of Canada," Office of
the Minister of Justice, 2003-JUL-17, at:
http://www.justicecanada.ca/
-
"Fact Sheet: Reference to
the Supreme Court of Canada on Civil Marriage and the Legal Recognition of
Same-sex Unions," Department of Justice, Canada, at:
http://www.canada.justice.gc.ca/
- Supreme Court of Canada, "Reference re Same-Sex Marriage,
2004 SCC 79, [2004] 3
S.C.R. 698," 2004-DEC-19, Sections 55 to 60, at:
http://scc.lexum.umontreal.ca/
-
"INDEPTH: SAME-SEX RIGHTS: The Supreme Court decision," CBC News
Online, 2004-DEC-09, at:
http://www.cbc.ca/
-
"Critics say institution hijacked; gay marriage advocates see 'green
light'," Canoe.ca, 2004-DEC-09. at:
http://cnews.canoe.ca/
-
"Harper divides and delays ... again," Canadians for Equal Marriage,
2006-OCT-04, at:
http://www.equal-marriage.ca/
Copyright © 2006 by
Ontario Consultants on Religious Tolerance
Latest update: 2006-OCT-30
Author: B.A. Robinson
Page Translator:
