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SAME-SEX MARRIAGE (SSM) IN CANADA

PAST PREDICTIONS OF THE FATE OF SSM LEGISLATION

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Status of SSM in Canada:

As of 2005-JUL-19, the date when the federal marriage bill C-38 was passed by Parliament, same-sex couples were able to marry in 8 out of 10 provinces, (British Columbia, Manitoba, New Brunswick, Newfoundland/Labrador, Nova Scotia, Ontario, Quebec, Saskatchewan), and in one of three territories (Yukon territory). This represented about 90% of the population of Canada. In each case, provinces and territories in Canada were unwilling to allow couples to marry in their jurisdiction until the governments were ordered to do so by the courts.

The federal government's bill C-38 to expand the definition of marriage to include both same-sex and opposite-sex couples passed the House of Commons on 2005-JUN-28 and passed the Senate by a vote of 47 to 21 with three abstentions on 2005-JUL-19. It was signed into law on 2005-JUL-20. SSM is now available across Canada in all provinces and territories.

The following is now of historical interest only. It represents past speculation on how and whether SSM would be legalized in Canada.

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The federal government's options, as they appeared in mid-2003:

An Ontario appeal court decision in 2003-JUN legalized SSM in Ontario and ordered the provincial government to issue marriage licenses. It apparently resulted in a great deal of tourist business as Canadian and American same-sex committed couples came to Ontario to get married. Ironically, this started when tourism was suffering in the Toronto area because of the SARS outbreak. SARS was confined to some Ontario hospitals, and never escaped to the community. In 2003-SEP, the last patient was released from hospital.

At the time of the decision by the Ontario Court of Appeal, the federal government's path forward was difficult to predict:

bulletJim Munson, spokesperson for Jean Chrétien said that the Prime Minister is "reserving judgment on making a decision on this...the feeling is that Parliament will have to make this decision." 1
bulletJustice Minister Martin Cauchon told reporters that court decision leaves gays and lesbians in Ontario free to marry "for the time being." He refused to say whether these marriages would be later invalidated by legislation. He said "Listen, the marriages that are taking place now are effectively legal marriages on the basis of the decision of the appeal court rendered [JUN-10]. I say for the time being because I can't presume the future. We want to make sure that we're going to have a national solution to that question. Having said that, I'm not in a position to today to give you the official government position." 1
bulletForeign Affairs Minister Bill Graham gave an impassioned plea behind closed doors at the weekly caucus meeting of the Liberal party in favor of legalization of same-sex marriages. A source said that Graham called on Liberals to be "courageous" and to recognize the clear direction that the courts are taking on interpreting the Charter rights of gays and lesbians. The source said: "He said it was clear where an ultimate judgment would lead us, because the Charter implications are clear. It's obvious we're looking at the legalization of marriage [for gays and lesbians] so delaying it further would not make sense if as Liberals we support the Charter. Let's show that we Liberals live in the 21st century. Let's show the young people of Canada what we're all about. Let's be courageous and deal with it as soon as possible." 1

The federal government appeared to have had five main options at that time:

bulletIt could have done nothing, and wait until a series of challenges grind through the courts of each province, gradually legalize same-sex marriage across Canada, one province and territory at a time. This was an unlikely choice, because it would make the government appear weak and indecisive.
bulletIt could have decided to maintain marriage as a union of one man and one woman. This would require the use of the "notwithstanding" clause to opt out of the Charter of Rights and Freedoms. More details. This would overrule any decision by the Supreme Court and by the three provincial appeal courts which have ruled on same-sex marriage. However, the legislation would have to state that they are aware that the legislation violates the Charter. Also, they would have to re-introduce and pass the legislation every five years. Both would be profoundly embarrassing to the government and distressing to much of the population.
bulletIt could have appealed the Ontario court ruling to the Supreme Court of Canada. The Federal Government would probably have lost fewer votes in the 2004 election if they had taken this route. With the senior courts in so many provinces unanimously ruling in favor of same-sex marriage, an appeal to the Supreme Court would have been a lost cause. But it would transfer responsibility for the decision to allow same-sex marriages from Parliament to the Supreme Court, and thus take some considerable heat off of the politicians.
bulletParliament could pass a "reference." This is typically a piece of legislation listing questions upon which the Supreme Court would be asked give a ruling. This was previously done in 1998 over the rules for the secession of Quebec.
bulletThe ruling Liberal party could prepare a reference and pass it to the Supreme Court for a non-binding ruling.

The federal cabinet, and Liberal party caucus, and the people of Canada remained seriously divided on the issue of equal marriage rights for gays and lesbians. A slim majority of adults favored SSM at the time. Among young adults, support is quite strong. Older Canadians are heavily opposed.

At the 2003-JUN-17 cabinet meeting, the Liberal government decided to take the last option described above. They choose to not appeal the ruling of the provincial court rulings. They accepted the principle that the Canadian Charter of Rights and Freedoms -- Canada's constitution -- guarantees that same-sex couples must have equality with opposite-sex couples, and be free to marry. One government insider said that the cabinet meeting involved "powerful discussions." 2 The source also said that the final decision was unanimous. However, there are some indications that cabinet members remain personally divided on the matter. More details

On 2003-JUL, the reference was made public and submitted to the Supreme Court of Canada for review. The Court was asked to rule on the reference on whether:

bulletThe Federal Government has the sole right to define who can marry.
bulletThe draft legislation is compatible with the Canadian Charter of Rights and Freedoms, and is thus constitutional.
bulletClergy can continue to discriminate against some engaged couples by refusing to marry them.

The third queston asked whether religious institutions would be protected against lawsuits if they refused to marry a same-sex couple because of their sex. In the past, churches have regularly refused to marry couples with marriage certificates on the basis of the couple's religion, race, age, disability status, degree of consanguinity, lack of maturity, etc. without being sued. But many conservative religious leaders have indicated apprehension that they may be sued in the future by same-sex couples.

In a surprise move on 2004-JAN-28, the federal government added an additional question to the reference: whether the existing marriage law which denies same-sex couples the right to marry is constitutional. If it is not, the government asks in what particulars and to what extent is it not constitutional. In asking this question, the government may be trying to determine if there are any other constitutional options open to it other than giving same-sex couples the right to marry.

On 2004-DEC-09, the court delivered its ruling. They answered the original three questions in the affirmative. They side-stepped the fourth question, by saying that many lower courts had already ruled that the constitution requires SSM, and that the government had accepted those decisions. The refusal to answer the fourth question guaranteed that SSM would generate intense conflict in Parliament.

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Legislative progress of Bill C-38:

On 2005 FEB-01, the federal government introduced its bill C-38 to amend the marriage act and some other acts to Parliament.

On APR-12, a Conservative party amendment which would have prohibited same-sex couples from marrying, and would have substituted a "separate but equal" system of civil unions was defeated by a vote of 164 to 132.

On JUN-28, bill C-38 was passed by the House of Commons by a vote of 158 to 133 and sent to the Senate.

The Senate is an appointed, not elected, body. As such, many members feel that they should not interfere with bills forwarded from the House of Commons. However, senators who are members of the Conservative Party decided to introduce amendments to bill C-38.

bulletIf any of the amendments are approved, then the bill would have to be returned to the House of Commons for a final vote.
bulletIf all of the amendments are rejected, and if the majority of Senators vote in favor of the bill, it would proceed to the Governor General who would finally sign the bill into law.

The Liberal Party currently holds a large majority in the Senate. The chances of an amendment passing were slim, but not zero. Several were considered, but all were defeated.

Bill C-38 was passed by the Senate on 2005-JUL-19, and signed into law on the next day.

Canada become the fourth country in the world to allow same-sex marriages throughout its entire territory. (The other three are the Netherlands, Belgium, and Spain).

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References used:

  1. "Same-sex couples rush to altar," The Toronto Star, 2003-JUN-12, Pages A1 and A24.
  2. Valerie Lawton, "Ottawa accused of same-sex delay," The Toronto Star, 2004-JAN-29, Page A7.

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Site navigation:

 Home page > Homosexuality > Same-sex marriage > Canada > here

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Copyright © 2003 to 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson

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