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The Federal government's "reference" to the Supreme Court of Canada

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On 2003-JUN-10 the Ontario Court of Appeal determined that the federal marriage act was in violation of Canada's constitution, called the Charter of Rights and Freedoms. They ordered the Government of Ontario to start issuing marriage licenses to same-sex couples immediately. This ruling made marriage available to all adult couples, both opposite-sex and same-sex. However, they had to come to Ontario to obtain the license, to marry, and to have their marriage registered.

On 2003-JUN-17, the federal government decided to accept the court's ruling and to not appeal it to the Supreme Court of Canada. This committed the government to create legislation that would legalize same-sex marriage (SSM) across Canada. This decision stirred up a hornets' nest of controversy:

bulletFormal support for SSM is broadly based. Groups include:
bulletLesbian, gay, bisexual & transsexual orgaizations.
bulletLiberal religious faith groups, including the members of Canada's largest Protestant denomination, the United Church of Canada, and one of the smaller denominations, the Canadian Unitarian Council.
bulletVarious civil liberties groups.

Most view SSM as a civil liberties matter. They feel that every adult should have the right to marry the person that they love and to whom they have made a lifetime commitment.

bulletFormal opposition to SSM by religious conservatives has been strong. They view SSM as attacking, harming and potentially destroying the institution of marriage. They fear that unwilling pastors will eventually be forced to perform SSM rituals, or risk being sued. Most believe that the Bible views all homosexual acts as intrinsically sinful, regardless of the nature of the relationship.

Perhaps in order to prevent future challenges to the new legislation by religious conservatives, the federal government sent a "reference" to the Supreme Court of Canada. A reference includes:

bulletA draft version of the proposed legislation.
bulletA request that the constitutionality of the legislation be subjected to a non-binding review by the court.
bulletA series of specific questions.

If found to be constitutional -- either as originally written or with minor changes -- the legislation would be submitted to Parliament for a free vote. As the name applies, members of Parliament are then able to vote according to their conscience and/or according to public opinion in their riding. Meanwhile, cabinet ministers are always expected to vote with the government. This contrasts with normal legislation, in which members are committed to vote as a block according to their party's stand.

The Supreme Court ruling on the reference is currently expected in the fall of 2004. This would probably delay the submission of legislation to Parliament until sometime in 2005.

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Events related to the "reference" sent to the Supreme Court of Canada


2003-JUN-17: Prime minister decides path forward: Prime Minister Jean Chrtien reported on CBC NewsWorld that the federal government would submit a reference to the Supreme Court of Canada1

An unnamed government source said that the decision by the Ontario Court of Appeal  "how they nailed it, how it was framed, how it was written was a pivotal point for everyone in the caucus. It was a clear indication from the court they didn't want to screw around with it any more....Asking [the Ontario appeal court] to hold off implementation requires convincing evidence of 'irreparable harm.' You have to basically say the sky's going to fall -- It's a hard case to make. You're not likely to get it." 2

The Prime Minister also promised that the new marriage act would protect the rights of religious organizations to decide which couples they are willing to marry and who they will reject. Traditionally, churches, synagogues, and other religious groups have been free to discriminate against individuals on the basis of race, gender, sexual orientation, etc in matters of membership, ordination and marriage. They will continue to have this freedom in the future. He said: "... we'll be proposing legislation that will protect the right of churches and religious organizations to sanctify marriage as they define it. At the same time, we will ensure that our marriage legislation includes and legally recognizes the unions of same-sex couples." 3


2003-JUL-17: Government legislation completed and reference sent to Supreme Court: The federal government drafted legislation which would expand marriage across the country to include same-sex couples. The changes in law appear to be minimal:
bulletCurrent references in law that define marriage as being between one man and one woman would be replaced by a new definition, which is identical to that found in the 2003-MAY-1 ruling of the Court of Appeal for British Columbia: . The draft bill states that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." 4,5
bulletA new section would be included in the marriage act to affirm that churches and other religious groups can freely discriminate by refusing to marry any couple that does not meet their standards. The draft legislation states that: "nothing in this Act affects the freedom of officials of religious groups to refuse to conduct marriage ceremonies that are not in accordance with their religious beliefs." 5

The legislation was sent as a "reference" to the Supreme Court on 2003-JUL-17. According to the Office of the Minister of Justice, the government has asked the court for a non-binding ruling on three questions:

  1. "Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?"
  2. "If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry persons of the same sex, consistent with the Charter of rights and Freedoms? If not, in what particular or particulars, and to what extent."
  3. "Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials form being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?" 5,6

2003-AUG-9: Federal government may introduce civil union option: The federal government was reported to be considering revising the reference that it sent to the Supreme Court in July. They might add an additional question: whether the creation of a Quebec/Vermont system of civil unions for gays and lesbians, that would have the same rights, privileges and obligations as marriage, would be constitutional. The general consensus among constitutional experts is that separate but equal systems would be discriminatory and thus unconstitutional. 7


2003-SEP-4: Supreme court sets a date for hearing: The Supreme Court of Canada tentatively selected 2004-APR-16 to hear arguments about the reference. According to CanWest News, "The decision means the divisive issue would be fresh in the minds of voters if a federal election is called next spring." Many conservative religious groups are planning to intervene in the case. The province of Alberta is intervening on the negative side; Quebec is intervening to protect its legislation which created civil unions but denied marriage to same-sex couples. British Columbia filed notice of intent to intervene, but hasn't decided whether to actually become involved. 8 [The new reference question is expected to delay the hearings until the fall of 2004.

bullet 2003-DEC-18: New prime minister expands options: A new prime minister, Paul Martin, took office on DEC-12, replacing Jean Crtien as leader of the ruling Liberal party. Martin reaffirmed on DEC-18 that gays and lesbians anywhere in Canada who want to marry will not be discriminated against under proposed new federal legislation. But, before finalizing the draft legislation, his recently appointed justice minister, Irwin Cotler, will augment the reference. The government will ask the Supreme Court of Canada to rule on whether a Vermont-style civil union -- legislation that would give separate but equal privileges to gays and lesbians -- would satisfy the equality rights in Canada's constitution. Martin said that Canadians need a full debate on the issue that involves the exploration of all constitutional options before a final revision to the marriage act is voted upon. He said in a CTV interview: "There must be a national debate in Parliament where all sides of the debate will be heard. Once that debate has taken place and all of the options have been looked at, we'll act."

This essay continues below.

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bullet2004-JAN-28: Federal government added a new reference to the Supreme Court: The federal government added a fourth question to the reference that they had sent to the Supreme Court in 2003. It asks:
"Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s.5 of the Federal Law - Civil Law Harmonization Act, No. 1 S.C. 2001 c.4, consistent with the Canadian charter for Rights and Freedoms? If not, in what particular or particulars and to what extent?"

The most senior courts in Ontario and British Columbia have ruled that the present federal law, which restricts marriage to opposite sex couples, is unconstitutional because it denies equal rights and freedoms to same-sex couples. But this reference question, the Supreme Court is asked to affirm or overrule those lower court decisions. Presumably, if the court finds that some other arrangement other than full marriage is constitutional, they will convey this to the government. It is certain that more members of parliament would favor a law granting same-sex couples access to some sort of civil union arrangement, rather than full marriage rights. The official word from the government is that this new references is motivated by an honest desire to offer comfort to Canadians who oppose SSM. Justice Minister Irwin Cotler stressed that the government continues to support same-sex marriage. He said: "We are reaffirming our position in support of same-sex marriage. It's unwavering....no retreat....There is a divided opinion and therefore we have to be respectful of the sensibilities in this country...We're [listening to] those who feel that by not putting that question, we have prejudiced the outcome of this court process.... We don't want it to linger so that people will always say, you know, if you had put that question maybe you would have had a different debate, and if you had a different debate, you may have had a different outcome....The [court's] answer [will be]... very interesting. It's very important for the debate in the House of Commons." The government also asked the Supreme Court of Canada to delay hearings on the proposed legislation and the references from the Spring to the Fall of 2004. Reactions to the reference were mostly negative:
bulletSvend Robinson, an openly gay member of parliament said: "It's quite clear that the last thing that Paul Martin wanted in the middle of an election campaign was a bitter debate about same-sex marriage. The decision is an attempt to delay, to postpone, to put off this debate on same-sex marriage." He called the new reference a "back-door appeal" of the Ontario and British Columbia court decisions.
bulletChales McVety, of the Canada Family Action Coalition -- a religiously conservative group opposing SSM, allegedly said that the government is denying citizens the right to debate the issue during the federal election expected during 2004-Spring. He said: "It is not only hypocritical but cold and callous in its political intent."
bulletPat O'Brien, a liberal member of parliament who opposes SSM said: "I'm hopeful that the top court in this country will uphold probably the most important institution in this country, and that's marriage as we know it." 9

bullet2004-MAY: Over two dozen interveners involved in the reference: As of 2004-MAY, interveners in the reference before the Supreme Court of Canada consisted of:
bulletVarious political and government agencies departments, individuals, human rights and legal groups, etc:
bulletThe federal Department of Justice.
bulletThe Attorney General of Quebec.
bulletThe Attorney General of Alberta.
bulletSenator Anne Cools.
bulletRoger Gallaway, a Member of the House of Commons.
bulletThe Canadian Human Rights Commission.
bulletThe Ontario Human Rights Commission.
bulletThe Manitoba Human Rights Commission.
bulletThe Canadian Bar Association.
bulletMouvement Laque Qubcois.
bulletA number of conservative religious and social groups, all of whom strongly oppose SSM:
bulletThe Association for Marriage and the Family in Ontario, consisting of the Focus on the Family (Canada) Association and Real Women of Canada.
bulletThe Interfaith Coalition on Marriage and Family, composed of The Islamic Society of North America, the Catholic Civil Rights League, and the Evangelical Fellowship of Canada.
bulletThe Canadian Conference of Catholic Bishops.
bulletThe Church of Jesus Christ of Latter-day Saints.
bulletOntario Conference of Catholic Bishops.
bulletSeventh-Day Adventist Church in Canada.
bulletA number of gay, lesbian, civil rights, and liberal religious groups, all of whom favor SSM:
bulletThe Canadian Coalition of Liberal Rabbis for Same-Sex Marriage.
bulletMetropolitan Community Church of Toronto.
bulletFoundation for Equal Families.
bulletCanadian Civil Liberties Association.
bulletWorking Group on Civil Unions.
bulletCanadian Unitarian Council.
bulletUnited Church of Canada. 10
bulletCouples who have been involved in cases before provincial courts:
bullet"B.C. Couples" who consist of three same-sex couples from British Columbia.
bulletThe "Egale Couples" who consist of Egale Canada Inc and five same-sex couples.
bulletA Qubc couple.
bulletWeek of 2004-MAY-14: Anti-SSM brief submitted to Supreme Court: The Interfaith Coalition on Marriage and the Family is a joint effort by the Evangelical Fellowship of Canada, the Catholic Civil Rights League, and the Islamic Society of North America. Their main effort currently is to deny same-sex couples the right to marry, and restore the definition of marriage to what it was prior to 2003-JUN, when the  the Ontario Court of Appeals ordered the Ontario Government to issue marriage licenses to same-sex couples and register their marriages. 

They made a written submission the Supreme Court of Canada concerning the federal government's reference. 10 The "introduction and overview" section of their brief maintains that:
bulletReligions have historically only approved of marriage between one man and one woman.
bulletThe institution of marriage predates the creation of Canada and thus the government cannot change who is eligible to marry.
bulletThe government can could a parallel separate but equal system of civil unions instead of allowing SSM -- a path that would be more acceptable to religious conservatives.
bulletSSM might result in future serious damage to the culture that cannot be predicted at this time.
bulletReligious institutions might be discriminated against if they continue to discriminate against same-sex couples by refusing to marry them. An analysis of the Coalition's brief is available.
bullet2004-OCT-6 & 7: Hearings held: The Supreme Court of Canada held hearings on the government's references. Three days were scheduled, but the task was completed by noon on the second day. More details.
bullet2004-DEC-08: Supreme court released opinion: The Supreme Court of Canada released its non-binding opinion on the federal government's references. It suggested that:
bulletThe Government of Canada alone has the power to decide whom may marry.
bulletThe government's proposed legislation which would allow both same-sex and opposite-sex couples to marry is constitutional.
bulletClergy can discriminate against same-sex engaged couples by refusing to marry them in "sacred space."

They successfully dodged Prime Minister Paul Martin's question whether the existing marriage act is unconstitutional. More details.

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The probable future path forward to legalize same-sex marriage is described in another essay

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  1. Tonda MacCharles, "Canada to allow same-sex marriage," The Toronto Star, 2003-JUN-18, Pages A1 (front page) and A22.
  2. Tonda MacCharles, "Same-sex marriage backgrounder: Why Ottawa said yes to making it legal," The Toronto Star, 2003-JUN-19, Page A4.
  3. Colin Nickerson, "Canada will amend federal law to allow same-sex marriages," The Boston Globe, 2003-JUN-18, at: http://www.signonsandiego.com/
  4. "Same sex marriages bill goes to supreme Court. Government asks for Supreme Court opinion on draft bill," Canada Online, at: http://canadaonline.about.com/
  5. 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/
  6. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
  7. Kim Lunman & Campbell Clark, "Ottawa considering testing same-sex marriage definition," The Globe and Mail, Toronto ON, 2003-AUG-9, Pages A1 and A7.
  8. "Today's Family News," Focus on the Family, Canada, 2003-SEP-4.
  9. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.
  10. "Factum of the Intervener The Interfaith Coalition on Marriage and Family," Evangelical Fellowship of Canada, at: http://www.evangelicalfellowship.ca This is a "pdf" file for which you may need software to view. It can be obtained free from:

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Copyright 2003 & 2004 by Ontario Consultants on Religious Tolerance
Latest update: 2004-MAY-28
Author: B.A. Robinson

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