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.

1.   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/
2. "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/
3. 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/
4. "INDEPTH: SAME-SEX RIGHTS: The Supreme Court decision," CBC News Online, 2004-DEC-09, at: http://www.cbc.ca/
5. "Critics say institution hijacked; gay marriage advocates see 'green light'," Canoe.ca, 2004-DEC-09. at: http://cnews.canoe.ca/
6. "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