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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

2005-FEB-01 & 02

The SSM legislation is introduced to Parliament

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Earlier developments are described in another essay

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Background:

On 2005-FEB-01, the federal Liberal party introduced amendments to various federal laws, including the Marriage Act, to legalize same-sex marriage and divorce across the country. At the time that the legislation was introduced in Parliament, 87% of Canadians lived in a province or territory which has already made SSM available to same-sex couples as a result of court decisions. Another court challenge is expected in Alberta. If this authorizes SSM in that province, then only 3% of the Canadian population will be without access to SSM in their province or territory. The proposed legislation will have little impact on most Canadians; it will merely make SSM more conveniently available to that minority of Canadians -- they won't have to travel as far to get married. Still, the Liberal and Conservative parties, the Roman Catholic church, and various conservative Protestant groups have escalated debate to a fever pitch.

Both sides regard SSM as a moral battle:

bulletReligious liberals, social liberals and the federal Liberal Party view marriage as a fundamental human right.
bulletReligious conservatives, social conservatives and the federal Conservative Party have asserted that SSM:
bulletIs a danger to the institution of marriage; some have said it will lead to the "destruction" of marriage),
bulletIs potentially damaging to the culture of Canada, and
bulletWill eventually limit the religious freedom of faith groups to discriminate against same-sex couples.

Some conservatives are willing to over-ride the Charter of Rights and Freedoms, Canada's constitution, in order to preserve "traditional marriage" -- i.e. in order to prevent committed same-sex couples from marrying. Members of Parliament (MPs) are faced with a major ethical challenge:

bulletThey have taken an oath of office which commits them to support the Charter, and thus support the right of same-sex couples to marry.
bulletThey are probably aware that national public opinion surveys have consistently shown in the last few years that most Canadian adults favor SSM. Many view their task as to implement the wishes of the majority of Canadians.
bulletThey are undoubtedly aware of the very strong opposition to SSM expressed by a highly motivated minority of Canadian adults. They might well retaliate against MPs who vote in favor of the government legislation by voting them out of office at the next election.

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Events:

bullet2005-FEB-01: Bill introduced to Parliament: According to a senior government source, the bill will rob Conservatives of any possible avenue to argue that religious freedoms are not afforded full protection.  She/he said: "That protection is written in black and white, in the preamble and the body of the bill." The Supreme Court of Canada has already ruled that the freedom to discriminate against couples in marriage is protected by the Charter of Rights and Freedoms. If passed, the legislation would make civil marriage between all couples -- same-sex or opposite-sex -- available in the provinces of Alberta, New Brunswick & Prince Edward Island, and the Nunavut Territory and Northwest Territory, where the courts have not yet enforced the Charter. The federal government emphasizes that the bill only refers to "civil marriage" and not "religious marriage." The government expects that 15 to 20 Liberal Members of Parliament will vote against the bill. With the support of the New Democratic Party, the Bloc Quebecois, and a handful of Conservative members, this would mean that the bill will pass.

Tarek Fatah, spokesperson for the Muslim Canadian Congress, has said that his group will support the bill. He said: "Our position is that this is not about religion at all. We believe in the separation of church and state."

Justice Minister Irwin Cotler said:

"I understand that Canadians are struggling with this issue -- there are different perspectives and we have to respect the pluralities of opinion. But we also have to understand that what we're talking about is civil marriage -- ...extending civil marriage to gays and lesbians...As the Supreme Court put it, this does not take away any rights of others. This does not affect religious marriage nor does it affect the rights of religious officials to refuse to solemnize a marriage because of their religious belief....The courts have spoken clearly....If Canadians want to challenge [the law] afterwards, that's up to them." 1

The text of the bill, C-38, is available online. The summary reads:

"This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce." 2

For once, Liberal and Conservative leaders agreed on something related to SSM:

bulletJustice Minister Irwin Cotler said about the bill: "I don't really foresee how one can put amendments to this."
bulletConservative leader Stephen Harper said: "the bill is written in a way that will make it difficult to amend."

The government plans to debate the bill in Parliament, starting in mid-February. A second reading (a.k.a. agreement in principle vote) will then be taken. If the bill passes, then it will be regarded as "approved in principle." The bill will be referred to committee. It will then return to Parliament for the third reading or final approval. It then goes to the Senate. Cotler hopes to have the entire process completed by the end of June.

bullet2005-FEB-01: About the bill itself -- First reading version:  
bulletThe full title is: "An Act respecting certain aspects of legal capacity for marriage for civil purposes."
bulletThe short title is: "The Civil Marriage Act."
bulletThe Preamble states:
bulletWHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination;
bulletWHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;
bulletWHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions;
bulletWHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;
bulletWHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;
bulletWHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;
bulletWHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;
bulletWHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;
bulletWHEREAS 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;
bulletAND 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 by legislation to couples of the same sex;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

  1. This Act may be cited as the Civil Marriage Act.
  2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
  3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
  4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.

The bill will also amend the Marriage Act, Canada Business Corporations Act, Canada Cooperatives Act, Civilian War-related Benefits Act, Divorce Act, Federal Law and Civil Law of the Province of Quebec Act, Income Tax Act, Marriage (Prohibited Degrees) Act, and Modernization of Benefits and Obligations Act. These changes would give all married couples -- whether same-sex or opposite-sex exactly the same rights and obligations. 3

bullet2005-FEB-01: Letters to the editor on SSM in the Toronto Star newspaper: There were no letters to the editor on this topic in the 2005-JAN-31 newspaper. However, the FEB-01 newspaper contained two letters in response to an earlier article "Same-sex marriage debate rages on:"
bulletGraham MacPherson of Prescott, ON wrote a letter titled "Act of agression on religion's right." The title was probably supplied by the newspaper. It is curious for three reasons:
bulletThe word "agression" is misspelled.
bulletThe word "religion's" implies that there is only one religion in Canada.
bulletIt is not clear whether the title refers to the right of religions to discriminate against sexual minorities, or to the right wing of Canadian religions.

MacPherson asks:

"What business does government have in attempting to redefine what is essentially a religious institution anyway?...The invasion of government into the definition of marriage itself is an aggression upon whatever tenets individual religions see fit to define their marriages as. Same-sex or not, marriage is religion's to define." In spite of assurances from the Supreme Court of Canada and the Liberal government, he predicts that clergy will be charged with a human rights violation if they refuse to marry a same-sex couple. He suggests that "the powerful gay lobby" has always had churches as their main target. He concludes: "Speak up. Your only intolerance will be towards a misguided government that is trying to ram an unpopular and unnecessary bill down our throats."

bulletKeith Baker of Corunna, ON wrote a letter titled "Last-ditch attempt to salvage power." He points out that the opposition to SSM has been from "...Roman Catholic and fundamentalist, evangelical 'Christian' institutions. The latter remain particularly non-inclusive in their approach to religion." He contrasts Christian behavior which he feels should be founded on principles of love, inclusiveness and acceptance with "...narrow intolerance for the beliefs and behavior of others..." He views the SSM debate as "...nothing more than a desperate, last-ditch attempt to salvage what's now left of the church's once complete power to control people's money, thoughts and lives." 4
bullet2005-FEB-01: Poll of members of Parliament: The Globe and Mail newspaper polled members of Parliament about the bill, and found:
bullet139 favor equal marriage rights for all
bullet118 favor marriage limited to one man and one woman
bullet49 are undecided or would not state a position.

Parliament has 308 seats. One is vacant and the Speaker does not vote except to break a tie. 154 votes are thus required to pass the bill. Bev Desjarlais, a Manitoba MP and member of the New Democratic Party has announced that she is opposed to the bill. The rest of the NDP appears in favor. Two Bloc Quebecois have announced that they are also opposed. The rest of the party will probably vote in favor. Essentially all of the Conservative party will vote against the Bill. The Liberal party is split. 5

bullet2005-FEB-01: United Church of Canada supports SSM bill: The United Church, Canada's largest Protestant denomination, congratulated the government of Canada on its proposed SSM law which the Church called a "win-win solution in the same-sex marriage debate." Rev. Dr. Jim Sinclair, General Secretary of the General Council, said:

"Marriage will be enhanced, not diminished, religious freedom will be protected, not threatened, and Canadian society will be strengthened, not weakened, as a result of this legislation."

A report on their web site stated:

"In August 2000, the 37th General Council affirmed that human sexual orientations, whether heterosexual or homosexual, are a gift from God and part of the marvellous diversity of creation. The Council further resolved to advocate for the civil recognition of same-sex partnerships. In August 2003, the 38th General Council decided 'to call upon the Government of Canada to recognize same-sex marriages in marriage legislation'."

Jackie Harper, as Church's program staff for Family Ministries, said:

"A significant, unique contribution that the United Church brings to this debate is the denomination's own experience of making same-sex marriage ceremonies available to its members and, at the same time, respecting the right of those within the denomination who are opposed to such services...Religious marriage is not, and cannot be, affected by the proposed legislation. All faith communities in Canada, whatever their views on same-sex marriage, have the absolute right to determine for themselves who will be eligible for religious marriage within their communities. This includes the right to determine whether the community will offer religious marriages to interfaith couples, to divorced couples, or to couples who are not members of the community." 6

bullet2005-FEB-02: Some reactions to the bill: The fundamentalist Christian group, Focus on the Family Canada, reported that:
bulletAn unknown number of people sent over 1.6 million E-mails to Parliament, using an online E-mail service of Focus on the Family Canada. Their vice-president of family policy said: "We were really taken aback at what the response was to that and I think it's just a sign of more to come. I don't think I've seen them quite as concerned about something and willing to act upon it as they are about this."
bulletFather Derek Ali at St. Justin Martyr Parish in Unionville, ON asked his parishioners to work towards the exclusion of same-sex couples from marriage, even if it brings hardship to themselves. He asked: "What are you willing to sacrifice to defend the Church? Are you willing to suffer humiliation? Are you willing to be put aside by friends? Maybe even lose your job?"
bulletRoman Catholic Archbishop Raymond Roussin of Vancouver BC wrote in his pastoral letter stressing that marriage is not a human right. "As a social institution, marriage is concerned with the common good, not individual rights...[Its] natural purpose is the good of the couple and the procreation and education of children."
bulletDouglas Farrow, co-founder of Enshrine Marriage Canada -- a group dedicated to preventing SSM -- said: "I think a good number of churches either have their heads stuck in the sand, so to speak, or if they're aware of these developments, as they ought to be, they're not doing much more than grumbling about it perhaps."
bulletSome Muslim and Sikh groups are also opposing SSM. David Hassan, chairman of London Muslim Mosque, said: "Our community has become more politically active in the last few years. The least we can do as citizens is be heard."
bulletRallies to exclude same-sex couples from marriage will be held in Calgary, AB and Stoney Creek, ON on 2005-FEB-05. 7

Campaign Life Coalition (CLC), a pro-life group, stated:
bullet"The federal government has introduced legislation today which is a knife thrust into the heart of the family in Canada...With Bill C-38, Paul Martin’s campaign to change the definition of marriage has commenced. He has proposed legislation that will extend to same-sex couples the same privileged status enjoyed by a man and woman in the institution of marriage".  10

Jim Hughes, President of CLC, said:
bullet"For millennia marriage has been a foundational institution, one in which a mother and a father bring children into the world. Because of that special responsibility, marriage has been given special recognition and rights in law. We urge Paul Martin to listen to opponents of same-sex marriage, especially religious leaders who have spoken on the issue, before proceeding."

Mary Ellen Douglas, National Organizer of CLC said:
bullet"Now is a crucial time for the Members of Canada’s Parliament. In the weeks and months ahead each MP must examine his or her conscience and decide if they will vote in favor of this disastrous Bill or courageously defend the definition of marriage as a union of one man and one woman." 11

The Toronto Star commented that:
bulletThe United Church of Canada, Canada's largest Protestant denomination, described the bill as a "win-win solution." Jim Sinclair, head of the denomination's general council, said: "Marriage will be enhanced, not diminished; religious freedom will be protected, not threatened; and Canadian society will be strengthened, not weakened, as a result of this legislation."

Bruce Clemenger, president of the Evangelical Fellowship of Canada, said:
bullet"The government is hurrying down an unknown path...What will be the social effects of refashioning a fundamental social institution -- to marriage itself, to spouses, children and society."
bulletCampaign Life Coalition, a Christian groups opposed to abortion and physician assisted suicide, said that the religious protections offered by the bill were "bland assertions."

Ref. Garth Bulmer, priest of St. John's parish in Ottawa, ON, said that the extension of equality rights to gay and lesbian couples is "a Godly thing to do." Commenting on the fears by conservative religious groups that they might be prosecuted if they discriminate against same-sex couples, he said: "I'll eat my clerical shirt if you can show me one example in the last 50 years of a provincial jurisdiction ever taking a clergyman t court because he refused to marry somebody." 8

Other comments:

bulletAlex Munter, national coordinator of Canadians for Equal Marriage, a non-profit which promotes SSM, said: "This bill symbolizes the best of Canada – it is a win-win for everyone, regardless of their views on equal marriage. In invoking the Charter, it protects lesbian and gay people from being excluded from civil marriage while protecting the rights of religious organizations to continue to define marriage as they choose....We have to match the determined, well-funded efforts of those who want to deny lesbian and gay relationships equal treatment under the law. Opponents like American religious-right leader James Dobson of Focus on the Family are bound and determined. They know they must stop this legislation so they can move on to their next goal – a comprehensive same-sex marriage ban in Canada. We have the opportunity to settle this once and for all. It is extremely vital that we urge MPs across the country to do the right thing."
bulletThe Muslim Canadian Congress endorsed the bill, stating that it protects both human rights and freedom of religion. 9
bulletJanet Epp-Buckingham of the Evangelical Fellowship of Canada said: "The Supreme Court of Canada said very clearly that the federal government had no authority or jurisdiction to protect religious freedoms, so it may be written in the bill, but it's [outside] the federal government [jurisdiction]. They may say it's there in black and white, but the Supreme Court of Canada opinion is there in black and white too." 10
bulletThe Toronto Star newspaper interviewed 10 men and women, apparently picked at random on the street. One had a neutral view of SSM. The four persons interviewed who were over the age of 45 were all opposed. The five persons under the age of 45 were all in favor of SSM. This is a very clear demonstration of the great gulf between young and old on this topic. 10
bulletConservative MP and justice critic, Vic Toews expressed concern about peripheral matters associated with SSM:
bulletHe recalled a current charge before a British Columbia human rights tribunal involving the Knights of Columbus who allegedly cancelled a contract to rent their hall for a marriage reception when the found out that the couple were lesbians. 10
bulletHe discussed a Presbyterian Church which wants to exclude same-sex couples from their marriage preparation courses. They are frightened about being charged before a human rights commission if they to put on the course. 10
bulletHe also referred to a multi-denominational youth camp in Manitoba who are being sued because they refused to allow a gay support group to use the facilities. He said that the group was a gay choir "whose object is to promote homosexuality."
bulletPat O'Brien, a liberal MP from London-Fanshawe, ON, claims that MPs -- presumably those opposed to the bill -- are being told to "take a walk" on the day of the vote. Liberal caucus whip Karen Redman of Kitchener Centre, ON, denies the charge. 10
bulletAlex Munter of Canadians for Equal Marriage -- a coalition of advocates for SSM -- said: "There is still work to do...The finish line for marriage equality is within sight; there are still hearts to change; there are still arguments to be made...Now is no time to let up on what has been a very, very long struggle to get to this point." 10

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Later developments

Possible paths forward to legalize same-sex marriage

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References used:

  1. "Same-sex marriage: Liberals aim to defuse religious opposition. Bill shields right to refuse," The Toronto Star, 2005-FEB-01, Page A1 and A8.
  2. "C-38: An act respecting certain aspects of legal capacity for marriage for civil purposes," LEGIS Info, Library of Parliament, at: http://www.parl.gc.ca/
  3. Printed copies can be obtained from: Publishing and Depository Services, PWGSC, Ottawa, ON K1A 0S5.
  4. "Letters," The Toronto Star, 2005-FEB-01, Page A15.
  5. Gloria Galloway & Brian Laghi, "MP poll shows same-sex vote still in doubt," The Globe and Mail, 2005-FEB-01, at: http://www.theglobeandmail.com/
  6. "Same-Sex Marriage Legislation Offers a Win-Win Solution, Says The United Church of Canada," 2005-FEB-01, United Church of Canada, at: http://www.united-church.ca/
  7. "Decisive battle over marriage begins," Today's Family News, Focus on the Family Canada, 2005-FEB-02.
  8. "Sean Gordon, "Churches, groups wade in. Strong reactions from both sides to divisive bill," The Toronto Star, 2005-FEB-2, Page A7.
  9. "Historic day: Equal marriage bill gets first reading in the House of Commons. Much work left to do as opponents gear up," Canadians for Equal Marriage E-newsletter, 2005-FEB-01.
  10. Tonda MacCharles & Sean Gordon, "Liberals plan to fast-track debate on gay-wedding bill," The Toronto Star, 2005-FEB-02, Page A6.
  11. "Parliament Introduces Legislation to Destroy Marriage Says National Canadian Group," LifeSite, 2005-FEB-01, at: http://www.lifesite.net/

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Copyright © 2005 & 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-DEC-02
Author: B.A. Robinson

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