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Reference re: Same Sex Marriage

December 09, 2004

In 2004, after a number of provinces had legalized same-sex marriage, the Supreme Court of Canada was asked by the federal government to give its opinion on four questions relating to draft legislation that, in its entirety, provided:

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.

The questions the Court was asked and its unanimous answers were as follows:

Question 1:   Does the proposed legislation fall within the exclusive jurisdiction of the federal government?

Answer:   Section 1 of the proposed legislation relates to the capacity to marry which is within the exclusive jurisdiction of Parliament. Section 2 of the proposed legislation is outside Parliament’s jurisdiction. It relates to the solemnization of marriage, which is within provincial jurisdiction.

In answering this question, the Court rejected the arguments of some conservative and religious interveners that the constitutional meaning of “marriage” was frozen in 1867 when the Constitution was drafted, noting that the Constitution must be interpreted in a large and liberal manner so that it can accommodate and address the realities of modern life. The Court also held that s. 1 of the proposed Act would only incidentally impact on a province’s jurisdiction over solemnization of marriage.

Question 2:   Is section 1 of the proposed legislation consistent with the Canadian Charter of Rights and Freedoms?

Answer:   Section 1 of the proposed Act is consistent with the Charter.

In answering this question, the Court rejected the arguments of some religious groups that the recognition of same-sex marriage would discriminate against them and violate their right to religious freedom. The Court stated:

The mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.

If it turned out that the right to same-sex marriage conflicts with the right to freedom of religion in particular circumstances, the Court noted, the resolution of such a conflict would be found within the Charter itself by way of internal balancing and delineation. There was no evidence that any possible conflict could not be resolved within the ambit of the Charter.

Question 3:   Does the guarantee of freedom of religion in the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

Answer:   Absent unique circumstances with respect to which the Court will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

Question Four:   Is the opposite-sex requirement for marriage for civil purposes, which had been established by the common law and set out for Quebec in s. 5 of the Harmonization Act, consistent with the Charter?

Answer:   The Court exercised its discretion to refuse to answer this question.

In reaching this determination, the Court noted that the federal government had accepted the decisions of the lower Courts and adopted their position as its own. The parties to the litigation and other same-sex couples had relied upon the finality of the lower court decisions and had acquired rights which are entitled to protection. Further, the Court noted that if it were to answer “yes” to the question, it would throw the law into confusion and would cast doubt on the lower court decisions even though it would not overturn them. These circumstances weighed against the hypothetical benefit that Parliament may derive from an answer.

Events Following the Reference

On February 1, 2005, the government introduced Bill C-38, An Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes. It passed the House of Commons on June 28, 2005, and the Senate on July 19, 2005. The Act became law when it received Royal Assent on July 20, 2005.

Click here to read the Supreme Court’s opinion.

Cynthia Petersen and Vanessa Payne represented Egale Canada Inc. and five same-sex couples from British Columbia, all of whom, as applicants in the B.C. equal marriage case, were parties in the Reference.


Vanessa Payne

Practice Areas

Appeals & Judicial Review, Constitutional Law