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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.

  • The 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 very soon.

    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 Chr�tien announced he would refer the proposed bill to the Supreme Court, asking the justices to consider three questions.

    They were:
    1. 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. 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. 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?
    The court hadn't heard the case by the time Paul Martin replaced Chr�tien as Liberal leader and prime minister in December 2003. Early in 2004, Martin added a fourth question to the Supreme Court reference:

    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 couples.

    "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:

    • 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 la�que qu�b�cois.
    • 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 m�me sexe.
    • 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."
    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.


    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:
    • 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.
    The court also decides issues such as who will be allowed to speak before the court and the case's timetable.

    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 Court's website.

    Once all the arguments are heard, the nine justices retire to consider their decision – which normally takes several months.




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