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LexView 59.0 - The Same-Sex Marriage Reference in Context: Recent Developments and Concerns

From the Archived "LexView" Series

October 20, 2006

How can the recognition of marriage as exclusively heterosexual be changed and what powers do each of the federal Parliament and the provincial legislatures have in this regard? Was the proposed legislation consistent with the Charter? Did the proposed legislation (and does the subsequent Civil Marriage Act enacted as a result) protect religious individuals and communities? Could the "fourth question", never answered, be posed in another Reference?

Reference re Same-Sex Marriage
[2004] 3 S.C.R. 698, 2004 SCC 79
Supreme Court of Canada

Date of Decision: December 9, 2004
Date of Issue: October 20, 2006

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Marriage; same-sex; reference; constitutional interpretation; constitutional law; proposed legislation; distribution of legislative powers; solemnization of marriage; discretion; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 2(b); freedom of expression; section 15; equality rights; section 1; demonstrable justification

Summary of Facts:

It has been some time since same-sex marriage became a reality in Canada. Its development took a rather tortured path, starting with Charter challenges to the common law traditional recognition of marriage. The federal government eventually capitulated and proposed legislation changing marriage in Canada for civil purposes. Before passing the legislation, it sought political cover by asking the Supreme Court of Canada, by way of a reference, to place its imprimatur on the legislation. Given that this issue may arise politically again in a free vote in the House of Commons, a review of the Supreme Court's decision in the Reference is timely.

On June 17, 2003, the Parliament of Canada announced that it would not appeal the decisions of the British Columbia Court of Appeal and the Ontario Court of Appeal, which found that the traditional definition of marriage as the "union of one man and one woman" is unconstitutional, but would instead draft a bill extending access to civil marriage to same-sex couples. The process by which this decision was reached was in and of itself most unusual, and there have been strong criticisms from within the Liberal Party itself that, for example, the matter never went to caucus before it was determined to send the proposed legislation to the Supreme Court of Canada: see http://www.tomwappelmp.ca/Speeches/C-38.htm.

The operative sections of the proposed legislation read as follows:

  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.

On July 16, 2003, pursuant to s. 53 of the Supreme Court Act, the Parliament referred three questions concerning this proposed legislation to the Supreme Court of Canada in order to ensure constitutionality. On January 26, 2004, a fourth question was added to the Reference.

The four questions were:

  1. Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?
  2. Is s. 1 of the proposed legislation, which extends capacity to marry to persons of the same-sex, consistent with the Charter?
  3. Does the freedom of religion guaranteed by s. 2(a) of the Charter protect religious officials from being compelled to perform same-sex marriages contrary to their religious beliefs?
  4. Is the opposite-sex requirement for marriage for civil purposes consistent with the Charter?

Significant Issues:

How can the recognition of marriage as exclusively heterosexual be changed and what powers do each of the federal Parliament and the provincial legislatures have in this regard? Was the proposed legislation consistent with the Charter? Did the proposed legislation (and does the subsequent Civil Marriage Act enacted as a result) protect religious individuals and communities? Could the "fourth question", never answered, be posed in another Reference?

Decision and The Court's Reasons:

On December 9, 2004 the Supreme Court of Canada released their answer to the four reference questions.

With respect to Question 1, the Court concluded that s. 1 of the proposed legislation was within the exclusive legislative competence of Parliament, while s. 2 was not.

With respect to Question 2, the Court concluded that s. 1 of the proposed legislation, which defined marriage as the union of two persons, was consistent with the Charter.

With respect to Question 3, the Court concluded that, absent unique circumstances, the guarantee of freedom of religion in the Charter would afford religious officials protection against being compelled by the state to perform marriages between two persons of the same-sex contrary to their religious beliefs.

The Court declined to answer Question 4.

Question 1

In the 1912 reference Re Marriage Laws, the Supreme Court of Canada indicated that under s. 91(26) of the Constitution Act, 1867, Parliament has legislative competence in respect of the capacity to marry, while under s. 92(12) of the Constitution Act, 1867, the provincial legislatures have jurisdiction over the solemnization of marriage once capacity has been established.

The Court held that since s. 1 of the proposed legislation pertains in pith and substance to the legal capacity for civil marriage, it falls within the subject matter of s. 91(26) and the jurisdiction of Parliament. The Court further stated that s. 91(26) did not entrench the common law definition of "marriage" as it stood in 1867, as the "voluntary union for life of one man and one woman to the exclusion of all others." To freeze the definition of "marriage" would run contrary to "one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a "living tree" which, by way of progressive interpretation, accommodates and addresses the realities of modern life." Using this "progressive" interpretation, the Court concluded that the word "marriage" in s. 91(26) does not exclude same-sex marriage.

The Court also noted that s. 91(26) does not grant Parliament the legislative competence over civil unions. Rather, civil unions are distinct from civil marriage, providing a host of civil rights on the basis of a conjugal relationship, not marital status. As such, civil unions are provincially regulated under s. 92(13) as they deal primarily with property and civil rights.

With respect to s. 2 of the proposed legislation, the Court concluded that while expanding the legal capacity of marriage to include same-sex partners would have incidental effects on provincial jurisdiction under ss. 92(12) and 92(13), these effects are "incidental and do not relate to the core of the powers over solemnization and property and civil rights." Recognizing that only the provinces may legislate exemptions to existing solemnization requirements, the Court concluded that s. 2 of the proposed legislation is ultra vires Parliament and is "superfluous." In other words, the federal Parliament can change the definition of marriage, but only the provinces can protect Canadians against any fallout suffered by religious people or other citizens opposed to homosexual marriage.

Question 2

The Court concluded that s. 1 of the proposed legislation embodies Parliament's policy stance in relation to the s. 15(1) equality concerns of same-sex couples. Since it withholds no benefits, nor imposes any burden on a differential basis, the proposed legislation did not infringe but was consistent with the Charter.

The Court further concluded that while the rights conferred by the proposed legislation may result in conflicts with the right to freedom of religion, a potential conflict of rights does not imply a conflict with the Charter. Rather, the resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation. However, since the collision between rights is dependent upon the contextual facts of the actual conflict, the resolution of such conflicts cannot be properly resolved up front, but are deferred to when the conflict occurs in the future.

Question 3

Question 3 concerning the scope of s. 2(a) of the Charter was formulated broadly without reference to the proposed legislation. Given that the Court already concluded in Question 1 that only the provinces can legislate protections for religious officials while providing for solemnization of same-sex marriage, the Court's answer is intended to be persuasive and not necessarily binding, depending on the circumstances. In light of this, the Court opined that, absent unique circumstances, 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. The Court further opined that s. 2(a) protection likely extends against the compulsory use of sacred places for the celebration of such marriages as well.

The Court qualifies their opinion noting that s. 2(a) only provides protection to actions "compelled by the state", and does not address private actions. Nevertheless, human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter.

Question 4

The Court concluded that due to the unique circumstances surrounding the Reference, including: (1) Parliament's unequivocal intention to introduce legislation in relation to same-sex marriage regardless of the Court's answer to Question 4; (2) that the parties to previous litigation have now relied upon the finality of the lower court judgments which are binding in their respective provinces; and (3) the Attorney General of Canada's concession that the common law definition of marriage was inconsistent with s. 15(1) of the Charter and was not justifiable under s. 1 in each of these previous trials, it would be unwise and inappropriate to answer Question 4 given the potential confusion that may result to the law by a "yes" answer.

The Civil Marriage Act

Subsequent to the Court's answer, on February 1, 2006, Parliament introduced legislation (Bill C-38) similar to the proposed legislation that was before the Court.

On July 20, 2005, the Marriage for Civil Purposes Act, 2005, c. 33 (the "Civil Marriage Act") came into force. The Preamble to the Civil Marriage Act included, inter alia, the following recitals:

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS 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;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;

The relevant sections of the Civil Marriage Act are slightly different than what was before the Court in the Reference and state:

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.

3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same-sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same-sex.

The Civil Marriage Act also contained a series of consequential amendments to other pieces of legislation. One change, in particular, is of note.

[Consequential Amendment to Income Tax Act:]

(6.21) For greater certainty, subject to subsections (6.1) and (6.2) a registered charity with stated purposes that include the advancement of religion shall not have its registration revoked or be subject to any other penalty under Part V solely because it or any of its members, officials, supporters or adherents exercises, in relation to marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.

LexView Commentary:

The process by which marriage has been redefined in Canada reveals a gap in our legislative framework that requires scrutiny. This gap is due to the division of the legislative capacity over marriage and the effects of marriage between the federal Parliament (capacity to marry) and the provincial legislatures (solemnization of marriage and property and civil rights).

A. Redefinition of Marriage for "Civil" Purposes

Section 1 of the proposed legislation and s. 2 of the Civil Marriage Act defines marriage for "civil" purposes. This use of the qualifier "civil" is telltale. The Court went out of its way to state that they are not redefining "religious" marriage. One would think this distinction prima facie indicates that this matter is within provincial jurisdiction since s. 92(13) deals with property and civil rights. This is highlighted by the fact that the Court stated that s. 91(26) does not grant Parliament the legislative competence over civil unions, since civil unions provide a host of civil rights on the basis of a conjugal relationship, not marital status.

In western civilization, marriage was originally a religious conception and only a religious conception. It was prior to the State, meaning that its status was not granted by the State. Marriage was not, and this is a striking fact in virtually all Western countries, defined, it was recognized. The Hyde decision, itself, (see below) recognized what marriage was. It did not, in any relevant sense, "define" marriage in a way that should have left it open to subsequent judicial inclusions. Only canon law—the law of the Church—governed marriage. It was not until the 14th Century that marriage became, in part, a creature of non-religious authorities. A marriage was primarily a mutual promise involving the exchange of solemn and sacred vows. In fact, the role of the priest was merely to solemnize the marriage contract. Marriages were considered valid even without the involvement of a priest. The marriage was witnessed by God and that was enough.

This was, in fact, the beginning of the term "common law marriage." It was a marriage that was recognized in society, but without the need for formal government recognition. The intention of such a marriage was "marriage." That the term "common-law" marriage subsequently, and fairly recently, became confused with living together for a certain period of time without the intention to "marry" shows the confusion in this area.

These forms of marriage ceased to have validity when marriage was first regulated by Parliament in the early 1800's. While the government was then involved in marriage, the religious and state forms were the same or sufficiently similar that there was a seamless inter-relationship between religion and the state. Both recognized the pre-existing nature of marriage—neither, in a key sense, created it.

When Canada came into being, it was decided that marriage would be regulated by the federal Parliament.

In the Canadian constitution of 1867, marriage was specifically referenced, but not defined. Everyone knew what it meant then. It had the same meaning for both religious and government purposes. The most accepted "definition" was written by a judge in 1866 in England:

What, then, is the nature of this institution [marriage] as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

Everyone understood what marriage was. Marriage involved a man and a woman and it was a permanent and exclusive relationship. Even 40 years ago, people would be astonished that the concept of "marriage" needed any fundamental re-arrangement relating to the sex of those entering into it...

Marriage is, and always has been, a matter of both religious and civil relationship, representing, as it were, a shared interest between the two. As such, severing a key element of what has been accepted by all in favour of including something favoured by a few, calls into question whether "marriage" should continue to be a State function at all. Certainly, a split between a "religious" and a "civil" conception is itself a fracturing of a formally shared category. In addition, redefining a marriage as only for "civil" purposes may arguably make such a relationship exclusively one of "property and civil rights" and therefore only within the jurisdiction of the provinces, not the federal Parliament. Sections 91(26) and 92(13) of the Constitution are inextricably tied together. As such, any redefinition of marriage should have required the collaborative effort of both the federal Parliament and provincial legislatures, or possibly, the action of the provincial legislatures alone. On this front, as well, the Marriage Reference seems to have been poorly conceived.

To get around this conflict between s. 91(26) and s. 92(13), the Court adopts a "progressive" approach to constitutional interpretation and the word "marriage" in s. 91(26). Since the Court has found the Constitution to be a "living tree" the enumerated heads of power are not frozen and can be adapted to accommodate and address new developments in contemporary society. In the Court's opinion, the "shared societal values" where marriage and religion were thought to be inseparable, had changed such that the word "marriage" in s. 91(26) of the Constitution did not exclude same-sex marriage.

This "progressive" approach to constitutional interpretation is problematic as it is based on "shared social values" which the Court acknowledges have changed over time. Interpreting constitutional protections as contingent on "shared social values" is dangerous, for when followed to its logical conclusion, law in general and the Constitution specifically, are based solely on the present societal consensus. As can be seen in Saumur v. the City of Quebec, when shared societal values are given free reign there is significant danger of erosion to our original freedoms such as freedom of speech, religion and the inviolability of the person.

A better approach to constitutional interpretation is to give more credence to the original intent of the framers of the Constitution. The words were to have meaning in 1867. To adopt this approach is to anchor our Constitution in something other than judicial interpretation of "the present consensus of society." That consensus can only meaningfully be found in legislative, not judicial, chambers. This does not preclude Parliament, the provincial legislatures and the courts from addressing new realities as they arise, but it does hold in greater check both the temptation for foundational judicial engineering and parliamentary over-reach. Here there is a place for the "dialogue" between courts and Parliament much beloved of legal academic opinion. The Marriage Reference was bad politics (as the speech by Liberal M.P. Tom Wappell, above, shows) and an inappropriate use of the judiciary to justify the political objectives of the government. In short, neither proper law nor politics were served by the manner in which both dealt with the Marriage Reference.

Constitutions are intended to be limitations on democratic impulses through the manner in which they make change difficult. They can be amended, and from time to time, but that involves wide-spread civic discussion and not dramatic social change based on the perceptions of varying social norms by a few.

Furthermore, given the diverse and multicultural makeup of Canada, it is questionable whether these new societal "values" are shared. Polling on the same-sex marriage issue indicated that Canadians were deeply split on Parliament's plan to redefine marriage. Relying on Lord Sankey L.C., writing for the Privy Council in the Persons case, that, "customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared" the Court asserts that society's view of marriage has in fact changed. However, the examples given by the Court in support of this proposition do not support Lord Sankey's statement, since the reason for the traditional definition of marriage has not in fact "long disappeared." The international developments are both limited and varied and both they and the lower court decisions regarding marriage are recent developments. Recent decisions in the United States, in fact, strongly suggest that same-sex marriage as a concept has failed in that country with court decisions and state constitutional amendments virtually without exception (that being Massachusetts) affirming heterosexual marriage: see Re Marriage Cases, (October 5, 2006) a decision of the California Court of Appeal; and Hernandez v. Robles (July 6, 2006) (New York Court of Appeals).

If shared societal values are to be identified they can be found in our country's constituting documents and the Charter. If the central issue underlying the "new reality" of same-sex relationships is the lack of equality, this could have been addressed in some other manner, i.e. by instituting some alternative form of registration regime, perhaps not one geared to marital concepts of "conjugality" or sexual conduct at all. The fact that this may not be within the exclusive jurisdiction of Parliament does not mean that we as a society are prevented from addressing such an issue. It just means we need to address it in a different way.

B. Lack of Legal Protection for Religious Individuals

Sections 3 and 3.1 of the Civil Marriage Act ostensibly set out the legal protection for religious individuals who object to same-sex marriage. They are different from s. 2 of the proposed legislation that was before the Court, which the Court found ultra vires Parliament. The Court stated that only the provinces have the capacity to legislate exemptions to existing solemnization requirements, while providing for the solemnization of same-sex marriages at the same time. As a result, no amount of legislation by Parliament will be able to definitively provide legal protection for religious individuals or organizations. That such protections are necessary is obvious from the Smith and Chymyshyn v. Knights of Columbus and others, 2005 BCHRT 544 case (see LexView 54.0). Any legislation, such as the recitals and ss. 3 and 3.1 of the Civil Marriage Act, while persuasive, is purely precatory and does not create legal protections. The consequential amendments to federal legislation (such as the Income Tax Act) provide protections as far as they go. With respect to this latter, one might well ask why groups that have religious objections to same-sex marriage have their charitable status protected but not groups that have other objections. It makes little sense not to protect a non-religious organization from expressing its own collective viewpoint reasonably held on this question. The Charter protection in Section 2 (a) is to "conscience and religion," not only religion.

Interestingly, one of Parliament's stated goals of the proposed legislation was to achieve uniformity in respect of civil marriage across Canada. It was because of the significant potential for undermining this goal, throwing the law into confusion, that the Court refused to answer Question 4. What the Court and Parliament failed to recognize is that this same concern could, and has now, resulted in a lack of consistent protection for religious individuals and organizations across Canada. This is seen in that while New Brunswick initially introduced legislation (Bill 76) to amend its Marriage Act to protect those who refuse to solemnize same-sex marriages, it was never passed. In contrast, both Manitoba and Saskatchewan passed policies requiring marriage commissioners to perform same-sex civil marriages if they want to keep their licenses. Two marriage commissioners from Manitoba have resigned and filed a complaint with the Manitoba Human Rights Commission as a result. Different still, British Columbia provides that while marriage commissioners can opt out of performing same-sex marriages they must refer the couple to a person who will officiate the ceremony for them. Still, 12 marriage commissioners in British Columbia have resigned. And in Ontario, while the provincial legislature has passed legislation (Bill 171) to protect the religious freedoms of religious officials and religious properties, they have not extended the same protection to civic officials. Furthermore, no province has extended protection for religious individuals, such as caterers, photographers, printers, florists, musicians, who offer commercial services to the wedding industry. All of these people are at risk of being brought before human rights tribunals for refusing, on sincerely held conscience or religious grounds, to participate in homosexual marriages.

Furthermore, it is unclear whether churches or religious organizations that operate as incorporated entities will even have standing qua corporations to raise Charter issues. This is because while the right to religious freedom enshrined in s. 2(a) of the Charter is expansive, its aim is to protect individuals against the state compulsion. They may have a claim under Section 15 of the Charter but the prospects for success of such a claim are not certain. One of the seminal cases on religious freedoms, Big M Drug Mart, did establish that corporations do have standing to make a Charter challenge, yet this was only in the context of criminal prosecutions, and it is unclear how far this will extend.

As can be seen, the Court's answer in the Reference and the subsequent Civil Marriage Act has produced a disparate patchwork with the scope of protection, or rather lack of protection, for religious individuals and organizations being dependent on the province in which one lives. There is a gap in our legislative framework that was not, and still has not, completely been addressed.

This is not to say that ss. 3 and 3.1 are completely ineffectual. They are declaratory, and set a precedent that the provinces and lower courts may follow. Given that the Court noted that "human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter" and that "absent exceptional circumstance, 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 will be interesting to see how lower courts and provincial human rights commissions deal with the complaints that come before them.

C. Failure of the Supreme Court to Answer the Fourth Question: Could it be Raised Again?

The fourth question in the Marriage Reference was added late in the day as a placatory measure following significant public outcry when the Reference was first sent to the Court. It was as follows:

4. Is the opposite-sex requirement for marriage for civil purposes consistent with the Charter?

Question 4 was, obviously, the essence of the matter. Had the Court said "no", it would have essentially obligated the federal government to change marriage. Somewhat surprisingly, the Supreme Court of Canada never answered the fourth question on grounds that may well no longer obtain (the political will of the day) or could be addressed by governmental action (effects on same-sex couples already married).

It is clear that the question has not been the subject of binding determination from the Supreme Court of Canada and that the Court has not addressed other questions in light of how a state such as Canada might choose to restructure its approach to marriage.

For this reason, and contrary to those who have asserted otherwise, a future government could provide a mechanism to protect existing entitlements for those same-sex couples who have entered into what they believed to be valid marriages and, indeed a completely different regime could be the subject of another reference to the Court with or without use of Section 33 (the "notwithstanding clause"). In some respects, the Court's failure to answer the question might well leave it vulnerable to being asked it again in response to actual or proposed legislation that restricts (once again) marriage to a heterosexual union yet does so on other grounds than given thus far for such legislation (for example, has the public discussion to date raised sufficient evidence about heterosexual marriage being "in the best interests of the child" as the French Government Commission recently recommended in rejecting both same-sex adoption and marriage for France?). Perhaps that is why so many, somewhat stridently, insist that there must be use of Section 33 should any further legislation be put before the Court. The facts are, however, otherwise and Canada could well be poised for some realpolitik to match the realjuris of the current debates.

An example of another legislative regime, as yet untested and in fact, not even a part of the debate would be the state getting out of marriage all together and focusing benefits on a neutral non-sexualized marker scheme. Essentially, such an approach would see governments in Canada providing "bundles of rights" to those within certain types of relationships, whether married, conjugal or otherwise, that meet certain criteria. Were that to be proposed to the Court it is likely they would find it acceptable as it would treat all citizens alike. It would require some level of coordination between the federal and provincial governments as the latter have jurisdiction over "property and civil rights." Requiring a level of intense and meaningful political dialogue and time for real contemplation on this issue would be a welcomed change.


This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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