EQUAL MARRIAGE BACKGROUNDER

Here are some frequently asked questions and answers concerning re-opening equal marriage:

1. What is the current law in Canada?

The current law is that same-sex couples are permitted to legally marry across Canada. This was enshrined in legislation when the Civil Marriage Act, which was passed by Parliament, came into force on July 20, 2005.

Prior to passage of the Civil Marriage Act, courts in 9 jurisdictions representing 89% of Canada’s population has already extended equal civil marriage to same-sex couples.

In Ontario, civil marriage licenses have been issued to over 12,000 same-sex couples since June 10, 2003.

These court rulings were based on the clear and consistent finding that excluding same-sex couples from civil marriage is unjustifiable discrimination which violates s.15 of the Canadian Charter of Rights and Freedoms (the “Charter”).

2. What did the courts rule?

Courts have consistently said that access to civil marriage for same-sex couples is a matter of equality, and denial of that access is harmful discrimination. They have also ruled that permitting equal marriage does not infringe anyone’s freedom of religion, but rather enhances it by permitting religions that wish to marry same-sex couples to do so.

Courts in the following jurisdictions have ruled that the Charter requires inclusion of same-sex couples in civil marriage:

Ontario: June 10, 2003, Ontario Court of Appeal

B.C.: July 8, 2003, B.C. Court of Appeal

Quebec: March 19, 2004, Quebec Court of Appeal

Yukon: July 14, 2004, Supreme Court of the Yukon Territory

Manitoba: September 16, 2004, Manitoba Court of Queen’s Bench

Nova Scotia: September 24, 2004, Supreme Court of Nova Scotia

Saskatchewan: November 5, 2004, Saskatchewan Court of Queen's Bench

Newfoundland: December 21, 2004, Supreme Court of Newfoundland and Labrador

New Brunswick: June 23, 2005, Court of Queen’s Bench of New Brunswick

The federal government did not appeal any of these decisions. However, it asked the Supreme Court of Canada to rule on whether it had the power to legislate equal civil marriage, whether religious freedom was protected, and whether the Charter requires the inclusion of same-sex couples in civil marriage. This case is known as the Reference re Same-Sex Marriage.

On December 9, 2004, the Supreme Court issued its opinion. It gave the government's proposed legislation the green light, ruling that the government has the jurisdiction and that equal marriage flows from the Charter. It also ruled that the Charter protects religious officials from being compelled to marry same-sex couples, to rent their sacred places, or to otherwise assist in solemnizing these marriages.

The Supreme Court refused to provide an opinion on whether the Charter requires equal marriage, saying that it would not second-guess the rulings of so many courts across the country. It said it would not answer this question because:

- the government said it was going to pass legislation extending equal marriage across Canada regardless of whether the Court said this was required by the Charter;

- the government did not appeal the lower court decisions, and so their finality should not be disturbed; and

- the equal marriage rights of same-sex couples were already established (the Court said “same-sex marriages have generally come to be viewed as legal and have been regularly taking place”.)

The Supreme Court did not say that Parliament was free to legislate as it saw fit or to create a separate civil union scheme for same-sex couples. It said “civil unions are a relationship short of marriage and are, therefore, provincially regulated.”

The Court made quite clear that the existing law in most of Canada was that it’s unconstitutional to exclude same-sex couples from civil marriage, noting the lower court rulings “are binding in their respective provinces.” This effectively confirmed that to take away the equal right to marry would require that Parliament use the notwithstanding clause.

3. What do legal experts say?

There is a consensus in the legal community that it is unconstitutional to exclude same-sex couples from civil marriage. Over 100 law professors have said that if Parliament passed a law that excluded same-sex couples from civil marriage “this legislation would very quickly end up in court, and be struck down as unconstitutional.”

The law professors have also stated that “to pass a law that… is almost certainly unconstitutional and then leave it to the courts to clean up the mess… would be untenable and irresponsible.” Click here to see the full letter.

No legal experts have stated that excluding same-sex couples from civil marriage is constitutional, or even likely to be constitutional. Opponents of equal marriage have managed to find a few legal experts who say it is theoretically possible that the Supreme Court could find it constitutional to exclude same-sex couples from marriage, but even such experts admit the chances are extremely low.

4. Have any religious officials been forced to marry same sex couples?

No. The legislation applies to civil marriage only. Religious marriage is not affected. Each religion continues to define marriage as it sees fit, whether that includes same-sex couples, interfaith couples or divorced persons. Religions have always been free to set their own rules for marriage.

The Supreme Court of Canada has stated that the Charter protects religious officials from being forced to perform a marriage that goes against their religious beliefs, to rent a sacred place for such a marriage, or to otherwise assist in the solemnization of such a marriage.

In addition, a human rights tribunal in B.C. has ruled that the Knights of Columbus, which is affiliated with the Catholic Church, cannot be forced to rent its hall for a lesbian wedding reception. (The Knights had signed a contract to rent the hall and then cancelled it. The Tribunal said it was unfair for the Knights not to make clear its policy beforehand and fined them because of this.)

5. What does the Conservative government plan to do?

The Conservative motion to re-open states:

“That this House call on the government to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages.”

If the resolution is defeated, Mr. Harper has stated he would consider the matter settled. If it passes, the next step would be to introduce legislation to re-define marriage to exclude same-sex couples.

Mr. Harper has promised not to use the notwithstanding clause to override the Charter. That means the government would be asking Parliament to pass a law that is almost certainly unconstitutional. If this happens, in the opinion of over 100 law professors:

“the result will be legal confusion, a lack of uniformity, and unnecessary, protracted and costly litigation. Provinces won’t know whether to follow clear court rulings or a law they know to be unconstitutional. There will be lengthy legal battles as litigation proceeds in numerous provinces and through several levels of court before finally reaching the Supreme Court some years down the road. Undoubtedly, courts will order the government to pay the cost of this litigation.”


6. Should civil marriage be based on religious beliefs?

Separation of church and state is important. However, even if civil marriage were based on religious beliefs, we’d have to ask “whose religious beliefs?”

There are many religions who want to marry same-sex couples. These include the United Church of Canada, the Canadian Unitarian Council, the Religious Society of Friends (Quakers), most reform rabbis, and many Buddhists, as well as clergy from the Anglican and Lutheran religions.

The religion of one should not become the law of another.

7. Must same-sex couples use the word ‘marriage’?

Civil union is not equality. The only reason to use a word other than ‘marriage’ is to symbolically exclude same-sex couples from civil marriage.

Denying same-sex couples the right to marry would give their relationships second-class status. No one would think of denying civil marriage status to non-Christians, inter-racial couples, or any other minority. The government of Canada cannot symbolically exclude same-sex couples from civil marriage without sending the message that there’s something wrong with them.

8. If civil union is good enough for England, why isn't it good enough for us?

In England, passage of the recent civil union was a step forward, as was federal common-law recognition for same-sex couples in Canada six years ago. In England it's recognized that civil union is not full equality, but rather a step forward along the road to inclusion in marriage itself.

In Canada, we've had equal marriage for almost 3 years in Ontario and it's been almost a year since Parliament decided the issue and extended equal marriage to the few places that didn't already have it. Here, taking away the right to civil marriage and creating a separate institution for same-sex couples is a clear step backwards. It's rolling back the clock on equality.

9. Is there a way to keep same-sex couples out of civil marriage?

Yes. Parliament could take the unprecedented step of passing legislation that includes the “notwithstanding clause”. This would allow Parliament to explicitly override the Charter of Rights and Freedoms for a period of 5 years. After 5 years, Parliament would have to legislate again, otherwise the law would revert back to the current definition which includes same-sex couples.

10. Should Parliament use the “notwithstanding clause”?

Parliament has never before used the “notwithstanding clause”. Doing so would set a precedent, making it easier for Parliament to override other people’s Charter rights in the future.

Using the “notwithstanding clause” could threaten religious freedom, as it is the only way government can take away Charter protection from religious officials who refuse to marry same-sex couples.


11. How long did the equal marriage debate last?

The equal marriage debate has been going on for many years. It began in Parliament in 2002, when the House of Commons’ Justice Committee examined the issue.

The Justice Committee held 27 hearings in Ottawa and across Canada. They heard from 467 witnesses. Of those witnesses, 58.7% supported equal marriage, 35.5% supported reserving marriage for opposite-sex couples, 1.7% supported reserving marriage for opposite-sex couples and creating a partnership registry for same-sex couples, and 1.1% supported abolishing civil marriage and leaving only religious marriage.

The debate gained steam in the summer of 2003, when both Ontario and B.C. began issuing marriage licences to same-sex couples.

On September 16, 2003, Parliament voted against a motion by the Alliance Party to “take all necessary steps” to preserve a definition of civil marriage that limits it to opposite-sex couples.

Equal marriage was a major issue during the 2004 federal election and also during the fall of 2004 when the Supreme Court heard and ruled on the government’s Reference re Same-Sex Marriage.

On February 1, 2005, the government introduced Bill C-38, the Civil Marriage Act. It was voted on three times in the House of Commons and passed the House on June 28, 2005. It passed the Senate on July 19 and came into force on July 20, 2005, after almost three years of what was surely one of the longest and most thorough public debates in recent history.