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Potential roadblocks at the Supreme Court level:

On 2003-OCT-6, two conservative groups who had intervener status in the Ontario SSM court case applied to the Supreme Court of Canada for permission to appeal the case to the higher court. They are the Association for Marriage and the Family of Ontario and the Interfaith Coalition on Marriage and the Family. They were opposed both by the six same-sex couples who won at the Court of Appeals and by the Government of Canada. The groups were denied intervener status.  More details.

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Potential roadblocks at the federal government level:

As of 2003-JUN-17, the Liberal Party of Canada, which has a solid majority in the House of Commons, decided to:

bulletWrite enabling legislation to enlarge the definition of marriage in Canada to include both opposite-sex and same-sex couples.
bulletSubmit this draft legislation as a "reference" to the Supreme Court of Canada for approval or corrections.
bulletSubmit the revised legislation to Parliament, perhaps by the fall of 2003, or the winter of 2003-4.
bulletForward the legislation to the Senate for approval and to the Queen's representative in Canada for authorization as law.

But this was far from a sure thing:

bulletThe Supreme Court is not known for speedy decisions. It is likely to hold hearings on the draft legislation -- probably in 2004-Spring. Some provinces will want to try to persuade the court to deny gays and lesbians the right to marry. Various conservative religious groups will want to take the same stance. As Chantal Hbert wrote in an opinion piece: "It would take the equivalent of a judiciary miracle for definitive legislation to be submitted to Parliament for a free and final vote before the next election." 1
bulletAfter the next election, there was a possibility that a different party would be in power. Stephen Harper, the leader of the Canadian Alliance party and current head of "Her Majesty's Loyal Opposition" could have become the new Prime Minister. He and his cabinet could have reverse the Liberal Party decision to proceed with the enabling legislation. There are indications that he was going to make opposition to same-sex marriage the key plank in his party's election platform. His, or any other, new government could decide to implement the "notwithstanding" clause which would allow it to opt-out of the human rights section of the Charter of Rights and Freedoms -- the Canadian Constitution. "When asked if he, as prime minister, would use the notwithstanding clause of the Constitution to suspend the equality rights of gay Canadians to achieve his goal, his answer Wednesday [2003-JUN-18] was a cautious 'yes'." The new government could pass legislation to retain marriage as a special privilege for heterosexual couples only, while acknowledging that the act discriminated against the equal rights section of the Charter. Such "notwithstanding" legislation would automatically expire in five years, but could be renewed indefinitely.

Columnist Chantal Hbert suggests that Harper's decision was a hazardous one, for two reasons:
bulletThe campaign could degenerate into a homophobic crusade, and alienate the majority of Canadians who favor of equal rights for gays and lesbians, including same-sex marriage.
bulletMaking the same-sex marriage issue prominent in the campaign "...could reinforce the Alliance's image as a narrow-minded, socially backward party and set it back once and for all." 1
bulletRegardless of what party is in power, some Liberals, most Conservatives and all -- or essentially all -- Alliance members of parliament were predicted to vote against any enabling legislation and cause its rejection. Most liberals, and all or essentially all New Democratic Party and Bloc Qubcois members are expected to vote in favor of the bill. However, they may not be sufficient in numbers to pass the bill.
bulletEven if the bill were passed by the House of Commons, the Senate could reject it. Liberal Senator Anne Cools said: "It's a very divisive debate. I'm not prepared to redefine marriage and make it something it isn't." 2

By the middle of 2005-JAN, the Liberal party had been returned to power, but as a minority government. Parliament is due to be recalled at the end of January. The same-sex marriage bill is expected to be the first item of business. Its outcome is uncertain. Canada's largest religious denomination, the Roman Catholic Church, has publicly opposed SSM. The two largest Protestant denominations, the United Church of Canada and the Anglican Church of Canada are not taking an active role in the matter, perhaps out of fear of church schism. Conservative Protestant churches and para-church organizations are actively opposing equal access to marriage. The public is deeply split over SSM, although the trend is towards acceptance, particularly among the youth and young adults.

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Potential roadblocks at the provincial/territorial government level:

The political leadership of nine of the ten provinces in Canada has indicated acceptance of same-sex marriage if the federal government changes the marriage act. For example:

bulletManitoba Justice Minister Gord Mackintosh said that his province would update its paperwork if the Federal Government authorizes same-sex marriages. 2
bulletPat Binns, the premier of Prince Edward Island and a supporter of retaining marriage as a special privilege of heterosexual couples, said: "I am not above the law." 2

The sole holdout is the Province of Alberta. It contains a large percentage of religious conservatives and has sometimes been referred to as the buckle of Canada's Bible belt. Alberta Justice Minister Dave Hancock said: "To take a institution that is near and dear to so many people and change the definition in this way is going too far." When he was asked about the other provinces' acceptance of the change, he said "That's up to them." Later in an interview he said that "...when we talked to Albertans about these issues, they said that marriage, as a social and religious institution, needs to be protected and we said, 'We'll do that'.2 He explained that his province will try to use the notwithstanding clause of the Charter to deny marriage licenses to gay and lesbian couples, even if the federal government expands the definition of marriage.

British Columbia Attorney General Geoff Plant implied that Alberta's plans are almost certainly a futile attempt. He said: "The definition of marriage is a matter of federal constitutional responsibility and I notice that in the last few days, what Alberta has said it will do has changed a little bit...My view is that an attempt to get through the back door what you cannot get through the front door will be struck down by the courts. 2

Patrick Monahan, an expert in constitutional law at Osgood Hall Law School in Toronto, ON agreed. He said: "You cannot use a province's right to issue marriage licenses to frustrate the operation of federal law." 2

On 2004-DEC-08, the Supreme Court of Canada released its rulings on the Federal Government's reference questions. They advised that the government has the right to define who can marry. This terminates any possibility that the Province of Alberta can implement the notwithstanding clause.

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Related essay on this web site:

bulletCan Canadian provinces opt out of Federal marriage laws?

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  1. Chantal Hbert, "Will same-sex marriages become election issue?, The Toronto Star, 2003-JUN-20, Page A25.
  2. "9 provinces will accept same-sex marriage. Lone holdout is Alberta; the rest will comply with promised federal law," The Globe and Mail, Toronto, ON, Page A1 (Front page)

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Copyright 2003 & 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JAN-21
Author: B.A. Robinson

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