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Same-sex marriage in Canada

2005-JUL-18 & 19: Bill C-38 "Civil
Marriage Act
" is debated in the Senate

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Earlier developments are described in another essay

In this essay, "SSM" means "same-sex marriage." "MP" means Member of Parliament.

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bullet Same-sex unions and opposite-sex marriage are: "fundamentally very different realities...." [Married opposite-sex couples] "bring forth future generations...whereas same-sex unions simply cannot produce progeny." Petition of 2,321 concerned Canadians from the Greater Toronto region
bullet "I am proud of the message we are sending to our homosexual constituents who have suffered from discrimination and stigmatization. We are telling them that, when they choose a life partner or when they meet the love of their life, their relationship is equal to a heterosexual relationship. ...Legally, their partner will never again be considered a stranger, but rather their legitimate spouse." Speech in the Senate by Senator Lucie Pépin. 1

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Background (to 2005-JUL-19):

By 2005-JUN-29, about 90% of Canadians lived in a province or territory which has already made SSM available to same-sex couples as a result of court rulings. Thus, the passing of C-38 would only affect about 10% of the population.

On 2005-JUN-29, the bill was passed by a comfortable majority in the House of Commons: 158 to 133. It was sent to the Senate for two readings, a referral to committee and the third and final vote.

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bullet2005-JUL-18: The Senate reconvened. The Standing Senate Committee on Legal and Constitutional Affairs issued its report on Bill C-38. It was two lines long: "Your Committee, to which was referred Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, has, in obedience to the Order of Reference of Wednesday, July 6, 2005, examined the said Bill and now reports the same without amendment." The committee had examined the bill thoroughly and heard testimony from 33 individuals and groups -- 14 opposed and 12 in favor of C-38. The committee attempted to strike a balance by inviting roughly equal numbers with opposite viewpoints They returned the bill unchanged to the full Senate for the third and final reading. 2

bulletSenator Consiglio Di Nino presented a petition from "...2,321 concerned Canadians from the Greater Toronto region." They represented about 0.05% of the total population of the area. The petition stated that same-sex unions and opposite-sex marriage are "fundamentally very different realities." Married opposite-sex couples "bring forth future generations...whereas same-sex unions simply cannot produce progeny." The petitioners are apparently unaware of the children produced by lesbian couples mainly through artificial insemination or by gay couples occasionally through surrogate motherhood. They ask that the Senate amend C-38 to:
bullet"...Promote a different name for same-sex 'marriage' to indicate that in essence it is different from traditional [opposite-sex] marriage."
bulletProtect the rights of religious groups to continue to be able to discriminate against same-sex couples. For example:
bullet Protect the right of marriage commissioners to refuse to marry same-sex couples.
bullet Protect the right of church organizations to refuse to allow same-sex couples to use their property.
bullet Protect the rights of parents and school teachers, apparently to veto any positive references to same-sex couples in family life programs.
bulletSenator Serge Joyal submitted a motion for the third reading of C-38. He mentioned that each and every member of the Standing Senate Committee on Legal and Constitutional Affairs attended all of the meetings of the committee. This is an unusual occurrence. They heard from 33 witnesses -- academics, clergy, and social activists. Many of the meetings were broadcast on TV via the CPAC network.

Some of the points raised by the witnesses were:
bullet Civil unions? Should we enlarge the definition of marriage to include same-sex couples, or should we create a system of civil unions with the same rights and obligations of marriage? Joyal referred to the Webster online dictionary, the Oxford Dictionary (2005), and the Encyclopaedia Brittanica,. All three give two definitions for the term "marriage:" The first refers to a union of an opposite-sex couples; the second refers to a union of a same-sex couples. All three references show an evolution in the meaning of the word "marriage" from past definitions which only recognized opposite-sex marriage. He suggested that isolating same-sex couples into civil unions is wrong. He cited the 2003 decisions of the Ontario Court of Appeal and the British Columbia Court of Appeal, both of which rejected the creation of an "almost equal" category to accommodate same-sex couples. He noted that Quebec, Nova Scotia, Manitoba and Alberta had created systems of domestic partnerships or civil unions. He referred to a Supreme Court decision that the way to maintain equality is to give access to both kinds of couples within the same institution. He said: "...that is what this bill is all about. It maintains accessibility to the same institutions for same-sex couples and opposite-sex couples. Our committee dealt with this issue at length with the support of the witnesses."
bullet Religious freedom. This is mentioned in five different places within C-38. The bill is backed up by the 2004-DEC ruling on the references by the Supreme Court. They said that the Canadian Charter of Rights and Freedoms -- Canada's constitution -- implies that church officials have the right to freely discriminate against same-sex couples by refusing to celebrate same-sex marriages, and by denying them the use of "sacred spaces" for their marriage rituals. He noted that five provinces, including Quebec and Ontario, have passed laws reinforcing the right of clergy to discriminate against same-sex couples if they wish. The Supreme Court ruled on the matter of civil commissioners being motivated by their religious beliefs to refuse to marry same-sex couples. The court said that no one should be compelled to act in a way that is contrary to his or her belief. It is up to the state to accommodate the needs of the couple and the commissioner, presumably by substituting another commissioner whose religious faith does not include discrimination against same-sex couples in marriage.
bullet Status of gay and lesbian children: Joyal refered to testimony by Professor Ian Kroll, a psychiatrist from the University of Calgary. He mentioned that students who recognize that they are homosexual are "...five to six times more likely than their heterosexual classmates to be targets of violence at school or when traveling to and from school; that because of negative attitudes they are twice as likely to feel unsafe; that because they feel alienated, they are more likely to use high-risk drugs later in life; and that they are three times more likely to attempt suicide than other children in school. That is the reality of [homosexual] children today."
bullet Status of children of same-sex parents: Joyal said: "Same-sex couples compare on measures of relationship quality. Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children. The development of sexual identity, personality and social relationship develops similarly in children of homosexual and heterosexual parents. The belief that gay and lesbian adults are not fit parents or that the psychosocial development of the children is compromised has no basis in science. Our position is based on the review representing approximately 50 empirical studies and at least another 50 articles and book chapters, and does not result from the results of any one study. These articles appeared in such journals as Developmental Psychology, The Journal of Child Psychology and Psychiatry, American Psychologist, Marriage and Family Review, American Journal of Orthopsychiatry, et cetera."
bulletSenator Gerry St. Germain: He opposes C-38 as it is now written. He feels that the Committee did not spend sufficient time examining the bill.

Some of his points were:
bulletJustice: He said that C-38, while possibly "...providing justice to one group of people takes away justice from another group." He feels that marriage should continue to be restricted to opposite-sex couples.

bulletFate of children: He appears to believe that same-sex couples cannot be as good parents as opposite-sex parents, on average. This conflicts with the studies cited by Senator Joyal. St. Germain  said: "...if the government's bill is accepted, the Parliament of Canada will be saying that marriage is no longer linked to the heterosexual capacity for procreation or to the sociological and psychological reality that children flourish the best when they are raised in an intact family headed by a married mother and father. We will be saying that marriage is not about providing for the future of children in society but about serving the needs of adults in close personal, emotional and sexual relationships....Suddenly the millions of [opposite-sex] married couples in Canada will no longer be recognized as being in conjugal, procreative, intergenerational unions, unions that are the foundation of society and the basis of its continuity. Instead, all marriages, homosexual or heterosexual, will become legally sanctioned, personal, emotional relationships that have no intrinsic purpose beyond the welfare of the two individuals involved."

bulletReligious freedom:
bullet The "so-called protections [in C-38] will not work... the rights of religious believers and others who conscientiously oppose same-sex marriage will be at the mercy of the courts." That is, the rights of individuals to discriminate against homosexuals may be regarded as less important than the rights of homosexuals to live free of discrimination.
bullet He said: "...the human rights tribunals that so far have tended to see the equality rights of same-sex couples as trumping freedom of religion or freedom of expression." He noted that marriage commissioners in several provinces, including Saskatchewan and Newfoundland, have been forced to resign because they were motivated by their religious beliefs to refuse to marry same-sex couples. He suggested that bill C-38 be delayed until all of the provinces pass legislation to protect those who want to discriminate against same-sex couples.
bullet He cited the R. v. Harding case before the Ontario Court of Appeal which ruled in a case involving the promotion of hatred against an identifiable group. They determined a defendant cannot claim as a a defense that the hatred was based on sincere religious belief

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bullet2005-JUL-19 (cont'd): Motion to delay C-38:
bullet Senator St. Germain moved that the third reading of C-38 be delayed six months to mid-2005-JAN:
bullet Senator Jack Austin cited a Globe and Mail/CTV poll which found that 55% of Canadian adults surveyed said that the next government should let the same-sex legislation stand. 39% wanted it repealed or amended. He suggested that "there is no point in further postponement."
bullet Senator Terry Stratton suggested that the Committee should have spent more time studying why some of the countries in the world that allow same-sex marriage do do not allow same-sex couples to adopt. The Committee also has not studied why other countries that have civil unions or similar arrangements for same-sex couples do not grant them all of the rights and obligations of opposite-sex married couples.
bullet The Senate voted 52 to 19 to reject Senator St. Germain's motion to delay C-38 by six months.
bullet2005-JUL-19 (cont'd): Motion to amend C-38:
bulletSenator Noël Kinsella proposed an amendment that involved:
bullet A new clause 2 inserted to C-38 and that the remaining sections renumbered accordingly.
bullet The new clause 2 would state the historical fact that "Parliament has recognized and continues to recognize the traditional marriage of one man and one woman"
bullet The renumbered clause 3 would read: "Notwithstanding section 2, marriage for civil purposes...." He feels that this would promote healing and harmony across the country.
bulletSenator Serge Joyal opposed the amendment because:
bullet The existing clause 2 already recognizes both same-sex and opposite-sex marriage.
bullet It would cast doubt on the validity of the unanimous decisions of eight provincial courts and the Supreme Court of Canada.
bullet The "notwithstanding" clause implies a hierarchy of importance between opposite-sex and same-sex marriages. This is directly in opposition with the intent of the bill which is to establish equal access to marriage by all couples.
bulletSenator Anne Cools spoke in favor of the amendment because it reduces the radical nature of the bill. Marriage has traditionally been the union of a man and woman for the procreation of children. If the government wants to give equal rights to same-sex couples, they must first amend the sections of the Constitution Act of 1867 which deal with marriage and divorce.

bulletSenator J. Michael Forrestall spoke in favor of the amendment and of the need to proceed slowly and investigate all aspects of the proposed legislation thoroughly.

bulletSenator Lucie Pépin noted that: "...over the past number of months, eight provincial courts, one territorial court, the Supreme Court of Canada, the House of Commons, a special legislative committee and the Standing Senate Committee on Legal and Constitutional Affairs have each voted in favor of a more inclusive definition of the concept of marriage.....We may rightly be proud of being part of a country that has chosen to protect the rights of minorities and that recognizes the need for our laws to do the same....The distinction between civil marriage and religious marriage, between the contract and the sacrament, has been made clear....Religious freedom is clearly protected in Bill C-38, just as it is in the Canadian Charter of Rights and Freedoms from which it draws its inspiration....I am proud of the message we are sending to our homosexual constituents who have suffered from discrimination and stigmatization. We are telling them that, when they choose a life partner or when they meet the love of their life, their relationship is equal to a heterosexual relationship. As long as that couple stays together, they will receive the same recognition and, should they separate, they will receive the same protection. Legally, their partner will never again be considered a stranger, but rather their legitimate spouse....Bill C-38 is a reminder that the decision to get married or not is indeed a lifestyle choice. Sexual orientation is neither a choice nor a lifestyle"

bulletSenator Leonard J. Gustafson opposed C-38. He suggested that public opinion polls are without validity. Everyone he has talked to is opposed to SSM. He read into Hansard brief notes opposing C-38 from many religious conservatives: the Evangelical Fellowship of Canada, Campaign Life Coalition Manitoba, Canadian Conference of Catholic Bishops, as well as individuals following  Christianity, Hinduism, Islam, Judaism, and Sikhism. He concludes: "My hope is that the Senate does the right thing in respect of Bill C-38" presumably by defeating it.

bulletSenator Jane Cordy spoke in support of C-38. She taught a class of 38 students in 1970, all of whom had a mother and a father and were part of traditional families. In her last year of teaching, 2000, "...there were students in my school being raised by single mothers and single fathers. There were stepmothers and stepfathers. There were kids being raised by grandparents and kids being raised by foster parents. There were kids who had not met a biological parent....It has been my experience as an elementary school teacher for 30 years that children thrive in a loving, caring, supportive home. The gender of the parents is not important. What is important is a family sharing mutual love, respect, responsibility and faithfulness....Allowing same-sex couples to marry will not diminish the marriage of an opposite-sex couple. Gay and lesbian couples can now live together. I suggest we do the right thing and allow them to marry."

bulletSenator Consiglio Di Nino expressed concern about rumors that thirty marriage commissioners in three provinces have lost their job because they were not allowed to refuse to marry same-sex couples. They included at least 10 in Newfoundland, 12 in Manitoba and at least eight in Saskatchewan. He said: "This debate is not about love and respect, as some would have us believe, nor is it about same-sex couples joining in a lifelong relationship of support, comfort, responsibility and, yes, love. Our communities have mostly accepted this and it is now, or soon will be, a reality across our country, as it should be. For me, and I believe the majority of Canadians, it is the word 'marriage' that defines " and has defined for centuries, at least " the union of a man and a woman."

bulletSenator David P. Smith spoke in support of C-38. He said: "I regard myself as a Christian. To me, Christianity means many things. It means love, understanding, compassion, respect for fellow human beings, tolerance and equality of rights. I believe that this issue deals with equality, the Charter and minority rights. I do not accept that it really is an issue that is a religious or faith issue..... My friends on the other side, I love you; I respect our faiths. We will continue to be friends and have fellowship together. I just have a different perspective. I want to reach out to this community and give them the minority rights that the Charter promises them."

bulletSenator Tommy Banks suggested that there are already two orders of marriage in Canada: "traditional marriage,"  and common-law marriage. There is no discrimination involved, even though they are called by different names. He moved a subamendment to Senator Kinsella's amendment which would substitute for clause 3: "Notwithstanding section 2, Parliament has recognized and continues to recognize the traditional marriage of a woman and a man; and..."

bulletSenator Céline Hervieux-Payette opposes C-38. She concluded from an examination of various dictionaries: "...that marriage is the union of a man and a woman and almost always for the purpose of procreation....I maintain that this bill is more a political action than a legal exercise confirming the equality rights of same sex couples" She quoted Dr. Margaret Somerville, a McGill University specialist in ethics. She said: "When restricted to one man and one woman, marriage establishes as the norm the rights of children to a biological father and mother who will raise them ...Because same-sex marriage is not based on procreation, it deprives all children of such rights, not just the children of same-sex couples. Bill C-38 expressly recognizes and applies this change by redefining the parental condition in general, changing it from the natural, or biological, parental condition to the legal parental condition. This is the effect of Bill C-38....The rights of children must include:
  1. The right to be conceived with a natural biological heritage " that is to say unmodified biological origins " and to be conceived with natural sperm from an identified man and a natural ovum from an identified woman; and
  2. The right to know the identity of their biological parents."

Senator Hervieux-Payette concluded: "I cannot agree to vote in favor of Bill C-38 as it stands. It would run counter to my profound convictions on my role as a senator, which is to protect Canadian institutions and the most vulnerable of Canadians, our children."

bulletConfusion: By this time, it was not clear whether individual senators were discussing Bill C-38, or the amendment to modify it, or the sub-amendment to modify the amendment.

bulletSenator Jean Lapointe indicated his support for C-38.

bulletVote: The senators rejected Senator Banks' sub-amendment by a vote of 46 to 24 with 3 abstentions.

bulletVote: The senators rejected Senator Kinsella's amendment by a vote of 46 to 24 with 4 abstentions. Debate resumed on the motion for third reading of C-38. 1

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Later developments: C-38 is passed by the Senate and signed into law

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Debates of the Senate (Hansard)," Volume 142, Issue 84, 2005-JUL-19, at:
  2. "Report of the committee" 2005-JUL-18, at:

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-JUL-22
Author: B.A. Robinson

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