INDEPTH: SAME-SEX RIGHTS
The Supreme Court decision
CBC News Online | December 9, 2004
Almost record time. Barely two months after hearing three days
of arguments for and against legalizing same-sex marriage, the
Supreme Court of Canada ruled that Ottawa does have the exclusive
jurisdiction to decide who has the right to get married in the
country - but that religious groups are not obliged to perform
unions against their beliefs.
"It means the same-sex marriages that have already been performed
in this country are legal and must be recognized," said Mary
McCarthy, a lawyer who represented some of the same-sex couples
who had standing before the Supreme Court hearing.
Supreme Court Decision
Other lawyers representing groups arguing for extending marriage
rights to same-sex couples stressed that the decision protects
the rights of religious groups.
"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," Douglas Elliott said. "Catholics,
Orthodox Jews and others who do not want to marry same sex couples
have the constitutional right not to marry them."
Opponents of same-sex marriage were disappointed. Enshrine
Marriage Canada, a group recently set up to lobby for the entrenchment
the traditional definition of marriage in the constitution, is calling
for a referendum on the issue.
"We are convinced the vast majority of Canadians want the traditional
definition of marriage," the group's Richard Bastien told CBC News.
"They don't want this business of same-sex unions."
Dec. 9, 2004, was a year-and-a-half in the making, starting
with the federal government release of the wording of proposed
legislation to legally recognize the union of same-sex couples.
The wording of the proposed legislation an Act Respecting
Certain Aspects of Legal Capacity for Marriage was released
on July 17, 2003, as follows:
From the Department of Justice
Proposal for an Act respecting certain aspects of legal capacity
for marriage for civil purposes.
WHEREAS marriage is a fundamental institution in Canadian society
and the Parliament of Canada has a responsibility to support
that institution because it strengthens commitment in relationships
and represents the foundation of family life for many Canadians;
WHEREAS, in order to reflect values of tolerance, respect and
equality consistent with the Canadian Charter of Rights and
Freedoms, access to marriage for civil purposes should be extended
to couples of the SAME-SEX;
AND WHEREAS everyone has the freedom of conscience and religion
under the Canadian Charter of Rights and Freedoms and officials
of religious groups are free to refuse to perform marriages
that are not in accordance with their religious beliefs;
NOW, THEREFORE, Her Majesty, by and with the advice and consent
of the Senate and House of Commons of Canada, enacts as follows:
1. Marriage, for civil purposes, is the lawful union of two
persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious
groups to refuse to perform marriages that are not in accordance
with their religious beliefs.
Consequential amendments will be added in the bill that Justice
Minister Irwin Cotler promised will be dealt with in Parliament
The proposed legislation was conceived by the government of
then Prime Minister Chretien. But before tabling it in Parliament,
the government wanted to make sure that if the bill were passed,
it would withstand challenges in court. So Chrétien announced
he would refer the proposed bill to the Supreme Court, asking
the justices to consider three questions.
The court hadn't heard the case by the time Paul Martin replaced
Chrétien as Liberal leader and prime minister in December 2003.
Early in 2004, Martin added a fourth question to the Supreme
- 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 to persons
of the same sex, consistent with the Canadian 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 from being compelled to perform a marriage
between two persons of the same sex that is contrary to
their religious beliefs?
4. Is the opposite-sex requirement for marriage for civil purposes,
as established by the common law and set out for Quebec in section
5 of the Federal Law -- Civil Law Harmonization Act, No. 1,
consistent with the Canadian Charter of Rights and Freedoms?
If not, in what particular or particulars and to what extent?
The court's answer to the first three questions was "yes."
And the decision used some pretty strong language:
"Several centuries ago it would have been understood that
marriage should be available only to opposite sex couples.
The recognition of same-sex marriage in several Canadian
jurisdictions as well as two European countries belies the
assertion that the same is true today."
As for question four, the Court "exercises its discretion not
to answer this question."
In effect, the Court said it was inappropriate to answer the
question as the federal government had decided not to appeal
lower court rulings that upheld same-sex marriages. The Court
said the law had effectively changed in six provinces and one
territory because the government had not appealed the rulings.
The court battles may not be over yet. Alberta has said it won't
change its law which defines marriage as a union between a man and
a woman. The province's justice minister, Ron Stevens, said Alberta
stands by its law and will not issue marriage licenses to same-sex
"As we stand today in Alberta, the traditional definition of
marriage is the law here," he said. "There are legal options,
but I'm going to share them with my colleagues first. I'm not
going to stand here today and talk about what-ifs."
There was a long list of groups and individuals who were allowed
to give their arguments before the court, which is why three
days were set aside to hear the case. They included:
Most analysts expected it would take the court months to sort
through all the arguments and write the decision. Two months
is remarkably quick for a case of this complexity.
- The attorney general of Quebec.
- The attorney general of Alberta.
- The Association for Marriage and the Family in Ontario
(made up of Focus on the Family (Canada) Association and
REAL Women of Canada).
- The Canadian Conference of Catholic Bishops.
- The Ontario Conference of Catholic Bishops.
- The Interfaith Coalition on Marriage and Family (made
up of the Islamic Society of North America, the Catholic
Civil Rights League and the Evangelical Fellowship of Canada).
- The Ontario Human Rights Commission.
- The British Columbia Civil Liberties Association.
- The Honourable Anne Cools, member of the Senate.
- Roger Gallaway, member of the House of Commons.
- The Canadian Human Rights Commission.
- The Canadian Bar Association.
- The Canadian Coalition of Liberal Rabbis for Same-Sex
Marriage (Rabbi Debra Landsberg, as its nominee).
- Mouvement laïque québécois.
- The Church of Jesus Christ of Latter Day Saints.
- The Foundation for Equal Families.
- The Metropolitan Community Church of Toronto.
- The Manitoba Human Rights Commission.
- The Canadian Civil Liberties Association.
- Martin Dion.
- The Coalition pour le mariage civil des couples de même
- The Working Group on Civil Unions.
- The United Church of Canada.
- The Canadian Unitarian Council.
- The Seventh-day Adventist Church in Canada.
- The "EGALE Couples."
- The "B.C. Couples."
- The "Ontario Couples."
- The "Quebec Couples."
Quick guide to Supreme Court references
What is a reference to the Supreme Court of Canada?
It's a way for the government to get the court's opinion on
major legal or factual questions before they become law.
The aim is make sure potentially contentious legislation would
survive a challenge under the Constitution.
How often does the government refer issues to the high court?
The federal government has gone this route 76 times since 1892.
Some of the most recent references include The Clarity Act (on
Quebec secession) in 1998, the David Milgaard Conviction Reference
(1991), and the Anti-Inflation Act Reference (1976).
Supreme Court references aren't limited to the federal government.
The high court has also heard many references filed by provincial
governments in the wake of rulings from their courts of appeal.
How does it work?
Lots of paperwork.
First, the government files the questions it wants answered
with the Supreme Court. Next, the attorney general of Canada
files a motion asking the Supreme Court to figure out how the
reference will proceed.
The court can decide to cover such matters as:
The court also decides issues such as who will be allowed to
speak before the court and the case's timetable.
- Who should be notified of the reference.
- Who will manage the reference process.
- What material should be placed before the court to form
the factual underpinning to the reference.
- Deadlines for interested parties to apply to intervene.
People or groups who believe their views need to be heard before
the justices decide how to answer the government's questions
can petition the court to be granted intervener status. The
interveners list on the Supreme Court reference on gay marriage
was decided early in 2004. Each group and individual had to
file a lot of paperwork following specific rules on how those
documents were prepared. The list and rules are on the Supreme
Once all the arguments are heard, the nine justices retire to
consider their decision which normally takes several months.