Same-sex Marriage

The Canadian Parliament has been debating a Bill relating to same-sex marriage. Bill C-38 says: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” This would replace or alter the legal definition of marriage, which had been established by judicial precedent in 1866 as “the voluntary union for life of one man and one woman, to the exclusion of all others.” People of the same sex will be considered to have the legal capacity to make a marriage contract, and if married, to divorce and divide their property in accordance with provincial marital property laws, and to claim other legal benefits and rights accruing to the married state.

The Bill is commonly described as a Bill to “legalize” same-sex marriage, but that description is a little imprecise. Several superior trial courts and couple of appellate courts (EGALE Canada Inc. v. Canada (Attorney General)(2003), 225 D.L.R. (4th) 472, 2003 BCCA 251; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161) have ruled that the common-law definition of marriage violated the constitutional rights of gays and lesbians under section 15 of the Canadian Charter of Rights and Freedoms. Section 15(1) of the Charter provides that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The Courts considered that the Charter protects human dignity, and that the legal inability to marry one’s lover offends human dignity. That reasoning is, I might point out, very innovative and the implications are uncertain.
If these decisions are correct, Bill C-38 would ratify the legal status quo, rather than creating a new legal right. Further, assuming the lower court rulings to be correct, if Parliament passed a law to ban same-sex marriage, that law would be void as an infringement on the constitutional rights of members of same-sex couples.
The federal government had been involved in all the lower court proceedings and had, at least on the face of the Court records in the various cases, opposed the claims of gay activists to a constitutional right to same-sex marriage. However the federal government had not appealed the rulings of any of the provincial courts of Appeal to the Supreme Court of Canada. After the government had introduced Bill C-38 in Parliament, it did refer Bill C-38 to the Supreme Court of Canada. A Reference is a special proceeding in which the government can get some kind of ruling from a court to settle the validity of some legal question – usually a constitutional question – to avoid years of court challenges to legislation after it has been passed. In this case the government asked the court for a ruling on whether Bill C-38 might offend the Constitution in some way, and whether the constitutional guarantee of freedom of religion would protect religious groups which did not recognize same-sex marriages from having to perform marriage ceremonies for same-sex couples or to recognize same-sex marriages for religious purposes.
The Catholic Bishops, along with many other groups, intervened in the Supreme Court Reference to try to dispute the lower court rulings on same-sex marriage, to make other legal arguments against the legislating a right to same-sex marriages, and to deal with the question of whether Churches might become legally obligated to perform marriage ceremonies for same-sex against their own principles. The Court’s decision was an unsigned unanimous decision.
The Bishops and other parties argued that the lower court rulings on same-sex marriage were wrong, and that there was no constitutional right to same-sex marriage. This was in many ways the central question. If the Bishops were right, there would be no legal right to same-sex marriage unless it was granted by Parliament in legislation like Bill C-38. If the Bishops were wrong, Bill C-38 really didn’t change the law.
The Supreme Court refused to answer that question because the federal government had not appealed against the lower Court rulings when it had the chance, and because hundreds of same-sex couples had gone through marriage ceremonies in reliance on an understanding of their rights inspired by the lower court rulings.
The Bishops and their allies had presented another arguments relating to the idea of legislating same-sex marriage. The Bishops argued that Parliament, as a legislative body, simply did not have the power to legalize same-sex marriage. The Court’s summary of the Bishops’ argument was:

… marriage is a pre-legal institution and thus cannot be fundamentally modified by law;

… the institution of marriage escapes legislative redefinition. Existing in its present basic form since time immemorial, it is not a legal construct, but rather a supra-legal construct subject to legal incidents.

That’s a good socio-political argument, but an innovative and challenging legal argument, which the Court rejected. It said:

(Para. 22) Marriage, from the perspective of the state, is a civil institution.

(Para. 55) The Proposed Act is limited in its effect to marriage for civil purposes… It cannot be interpreted as affecting religious marriage…

On the question of whether any church, congregation or religious group that disagreed with gay liberation and same-sex marriage could be forced to respect the demands of a same-sex couple for a religious ceremony, the Court said:

The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336-37. The performance of religious rites is a fundamental aspect of religious practice.

It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.

The question we are asked to answer is confined to the performance of same-sex marriages by religious officials. However, concerns were raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages. The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would hold for these concerns.

The Court’s ruling is a mixed bag for the religious opponents of same-sex marriage. The Court upheld the legislation and held that same-sex Parliament can, within the context of regulating marriage as a civil institution, authorize same-sex unions. It refused to say whether or not gays and lesbians have a constitutional right to get “married”. The court said that a non-religious marriage is simply a civil union. The Bishops could have taken the Court’s comments as a partial victory. If non-religious, or purely legal marriages are to characterized as civil unions, gay marriage has not been recognized in Canada. The Bishops were also victorious on the question of whether same-sex couples can demand religious ceremonies and, within the Christian Churches, the rituals of a Sacramental marriage, for their unions.