CANADA DEBATES SAME-SEX MARRIAGE Introduction On June 10, 2003, Chief Justice Roy thing in its power to oppose same-sex Focus McMurtry, Mr. Justice James marriage. Premier Ralph Klein told This News in Re- MacPherson, and Madam Justice Eileen reporters, “If there is a move to sanctify view feature fo- cuses on the debate Gillese delivered a historic judgement. and legalize same-sex marriage as legal, over same-sex After methodically demonstrating how we will use the notwithstanding clause, marriages in Canada’s existing marriage laws vio- period, end of story.” In other words, Canada. In June lated the equality rights of gays and Klein let all of Canada know that he 2003 the Ontario lesbians under the Charter of Rights and was willing to turn to the rarely used Court of Appeal Freedoms, the Ontario Court of Appeal notwithstanding clause of the Charter of ruled that Canada’s marriage laws ruled that Canada’s marriage law Rights and Freedoms to exempt Alberta violated the Char- “demeans the dignity of same-sex from federal legislation having to do ter rights of same- couples” and is “contrary to the values with same-sex marriage. sex couples hoping of a free and democratic society” (The On June 17, federal Justice Minister to marry—echoing Globe and Mail, June 11, 2003). Then Martin Cauchon announced that the previous rulings from courts in B.C. the justices ordered that the definition government would not appeal the and Quebec. The of marriage be changed to “the volun- Ontario court’s decision and revealed decision set off a tary union for life of two persons to the the wording of draft legislation that flurry of debate as exclusion of all others.” They also would allow gay couples to marry. the government directed Toronto’s city clerk and the Cauchon said, “It’s a question of dig- decided not to appeal the ruling provincial registrar-general to accept nity. It’s a question of equality. And I and proceeded the marriage licences of two gay sincerely believe that the government is with legislation couples married in 2001 under the going in the right direction” (Toronto recognizing same- Christian tradition of publishing banns. Star, June 17, 2003). sex marriages. Within hours, Michael Leshner and In order to ensure successful imple- Michael Stark, one of the couples that mentation of the legislation, Cauchon figured prominently in the court case, sent the draft bill to the Supreme Court YV Sections were married in front of 50 friends at a of Canada for review. It has been asked marked with this symbol indicate ceremony in Toronto City Hall. Leshner to evaluate the legislation on the basis content suitable for said his “absolute faith in Canadian of the authority of the federal govern- younger viewers. values” proved instrumental in his ment to legally define marriage, the decision to persevere in the court battle compatibility of the act with the Charter to earn marriage rights for gays and of Rights and Freedoms, and whether lesbians. the Constitution protects religious While the courts had ruled in favour leaders who choose not to sanctify of same-sex marriage in previous same-sex marriages. It is expected that rulings in British Columbia and Que- the Supreme Court of Canada will have bec, the Ontario ruling called for imme- their review prepared by early 2004. diate action on the part of government. After that, the bill will be voted on in Most provincial justice ministers ac- the House of Commons. cepted the ruling and indicated that they The decision to formally legalize would abide by the decision of the same-sex marriages has been the source Ontario court. One provincial govern- of heated debate. Those favouring ment—Alberta—vowed to use every- same-sex marriages see the legislation CBC News in Review • September 2004 • Page 30 as the next step along the road toward House of Commons. In other words, Under section 33 of equal civil rights for gays and lesbians. Liberals would not have to vote with the Charter (some- times called the To many, it is an endorsement of equal their party and could oppose the bill. “notwithstanding rights for all Canadians, regardless of On August 8, 2003, The Globe and clause”), Parlia- sexual orientation. The side opposed to Mail reported that 48 Liberal MPs were ment or a legisla- same-sex marriages has taken the opposed to the legislation. Combine this ture can make a position that marriage is a key institu- number with the Canadian Alliance and particular law exempt from tion in building society, both in a pro- Progressive Conservative MPs opposed certain sections of creative sense and from the perspective to the bill and it appears that about half the Charter—the of family values. They see no need to of the MPs in the House are in a posi- fundamental redefine marriage, regardless of what tion to vote against same-sex marriage freedoms (in sec- the courts are saying. Some suggest that legislation. Meanwhile, an Ipsos-Reid tion 2), the legal if the government wants to introduce a survey in June 2003 stated that 54 per rights (in sections 7 to 14) and the “civil union” for same-sex partners that cent of Canadians favour same-sex equality rights (in would be fine—just don’t call it mar- marriage. A follow-up survey saw that section 15). How- riage. Several of Canada’s religious number drop to 49 per cent. (The Globe ever, a law that communities—such as the Roman and Mail, August 8-9, 2003) Clearly the limits Charter rights Catholic Church, the Evangelical issue is too close to call. under the notwith- standing clause Fellowship, and the Islamic Society of With the Supreme Court review of expires after five Toronto—have been vocal about their the draft bill pending, many political years. This clause is objections to same-sex marriage. analysts think that same-sex marriage used very rarely. From a political standpoint, it appears legislation will likely not be presented Source: that the parliamentary vote on same-sex in the House of Commons until early www.pch.gc.ca/ marriage legislation is going to be very 2004. That leaves plenty of time for charter-anniversary/ index_e.cfm close. Early in the process, Prime more debate, although some parliamen- Minister Chrétien announced that the tarians hope to debate the issue before bill would be put to a free vote in the the Supreme Court ruling. Did you know . Same-sex marriage Questions is already legal in 1. What reasons did the Ontario Court of Appeal give for supporting same- Belgium and the Netherlands? sex marriages? 2. How did Canada’s provincial and federal leaders respond to the decision? 3. Why did the federal government ask the Supreme Court to review their same-sex marriage bill? 4. Outline the arguments for and against same-sex marriages. 5. What evidence is there that Canadians are divided on the issue of same- sex marriage? 6. Where do you presently stand on the issue? Why? CBC News in Review • September 2004 • Page 31 CANADA DEBATES SAME-SEX MARRIAGE YV Video Review 1. What happened on June 10, 2003, to change the definition of marriage in Please view the Canada? video carefully and answer the ques- tions on this page. 2. What did Pierre Trudeau do to change the status of gays and lesbians in Canada? Further Research In order to keep abreast of the Supreme Court’s 3. What was “Canada’s Stonewall”? rulings on this issue visit www.sccc- csc.gc.ca. 4. Why was the Charter of Rights and Freedoms so important in the battle for gay and lesbian rights in Canada? 5. What role have the courts played in the ongoing quest for equal rights for homosexuals? 6. The Ontario court ruling was not the first decision in favour of same-sex marriage. a) Name the two provinces that handed down rulings before Ontario. Provinces: 1.__________________________ 2. ___________________________ b) What distinguishes these rulings from the Ontario one? 7. What did Canada decide to do instead of appealing the Ontario court’s ruling? 8. What protection is there in the same-sex marriage bill for religious groups that do not wish to sanctify same-sex marriages? 9. What position does the Vatican take regarding same-sex marriages? 10. Why did Prime Minister Chrétien reject the idea of a national referendum on same-sex marriages? CBC News in Review • September 2004 • Page 32 CANADA DEBATES SAME-SEX MARRIAGE Document Study Please read the An Act Respecting Certain Aspects of Legal Capacity for Marriage draft copy of for Civil Purposes. Canada’s same-sex From the Department of Justice marriage legisla- tion and answer Proposal for an Act respecting certain aspects of legal capacity for marriage for the questions at civil purposes the bottom of the page. WHEREAS 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 Further Research family life for many Canadians; CBC Newsworld has WHEREAS, in order to reflect values of tolerance, respect and equality consis- both information and learning tent with the Canadian Charter of Rights and Freedoms, access to marriage for activities on same- civil purposes should be extended to couples of the same sex; sex marriages at www.cbc.ca/ AND WHEREAS everyone has the freedom of conscience and religion under the newsreal/ Canadian Charter of Rights and Freedoms and officials of religious groups are teachers.html. free to refuse to perform marriages that are not in accordance with their reli- Select “Past Lesson gious beliefs; Plans” and “June 11, 2003.” NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: • Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.