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"Same-Sex Marriage: Is There a Place for Religion in Politics?"


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NEW!

Bill C-38 The Civil Marriage Act: "An Act respecting certain aspects of legal capacity for marriage for civil purposes" Feb.1, 2005.

Open Letter to The Hon. Stephen Harper
from Law Professors
Regarding Same-Sex Marriage --- Version française

 

 

 

MARRIAGE: ISSUES AND DEBATES

Table of Contents

  1. Redefining Marriage: The Debates
    1. Political Background
      1. BILL C-38: Civil Marriage Act.
      2. Parliamentary Speeches
    2. Court Judgments
      1. Supreme Court of Canada
      2. Ontario
      3. Quebec
      4. British Columbia
      5. Saskatchewan
      6. Yukon Territory
    3. Provincial Legislation
    4. Three Approaches to the Marriage Question
      1. A. Union of Man and Woman
      2. B. Union of Two Persons
      3. C. The State Gets Out of Marriage
  2. Canadian Family Law
    1. Pre-Nuptial Agreements
  3. Divorce
  4. Cohabitation
  5. Families and Civil Society
  6. Courtship
  7. Family Economics

 

Redefining Marriage: The Debate

Legal and Political Background

In 1999 the Parliament of Canada reaffirmed the historic definition of marriage by a vote of 216 to 55. In 2001 the first same-sex marriage judgment was delivered by the British Columbia Supreme Court. It decided against the applicants. It argued that marriage served unique social purposes and concluded that it could not be redefined without a constitutional amendment.

InJuly 2002 the Ontario Superior Court declared that the existing legal framework was discriminatory and gave the federal government 2 years to explore other legal options: a) redefining marriage, b) civil unions, or c) having the state step back from marriage. In Sept. 2002 the Quebec Superior Court produced a similar judgment. In response the federal government inaugurated public hearings across Canada. Almost five hundred presentations were made to the Standing Committee on Human Rights and Justice. After the public hearings the parliamentary committee began to prepare its report.

On June 10th 2003, the Ontario Court of Appeal dismissed the two year period for Parliamentary deliberation, abolished th traditional definition of marriage, and redefined marriage as a union of two persons. The federal government immediately terminated the work of the parliamentary committee, decided not to appeal the Ontario judgment, and on June 17th, 2003, it announced that it would introduce legislation to redefine marriage. In July 2003, the government put forward a series of reference questions for the Supreme to seek its opinion on whether the government has the constitutional authority to redefine marriage. On Dec.9, 2004 the Supreme Court of Canada rendered its opinion on the constitutionality of the proposed legislation. On Feb.1, 2005 Bill C-38 was tabled in the House of Commons.

House of Commons Developments

Department of Justice Discussion Paper: and the Legal Recognition of Same-Sex Unions, Nov. 2002. Select Here

Hearings of the House of Commons Standing Committee on Justice and Human Rights: Hearings took place across Canada from January through April 2003. Transcripts of oral presentations by witnesses and discussions with the committee.
Select Here

Marriage Divides the House September 16th, 2003, The Globe and Mail
Select Here

House of Commons Debate on the Canadian Alliance Motion to Reaffirm the Existing Definition of Marriage (Sept. 2003)
Select Here

 

Bill C-38. The Civil Marriage Act. "An Act respecting certain aspects of legal capacity for marriage for civil purposes" Feb.1, 2005. See Link

The Preamble and Sections 1-4.

"WHEREAS 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;

"WHEREAS 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;

"WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions;

"WHEREAS 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 ;

"WHEREAS 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;

"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, 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;

"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 family life for many Canadians;

"AND 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..."

Sections 5-15 deal with "Consequential Amendments" (Income Tax Act, Divorce Act, Prohibited Degrees, etc.). In these amendments the terms "natural parent" and "blood relationship" are replaced by "legal parent" and "legal parent-child relationship."

 

House of Commons Speeches on Bill C-38

Speeches Arguing for Bill C-38

Government: Liberals

Official Opposition: Conservatives

BLOC

Mr. Réal Ménard (Hochelaga, BQ)

NDP

 

Speeches Arguing Against Bill C-38

Government - Liberals

Official Opposition - Conservatives

BLOC

NDP

 

Court Judgments

(Canadian Court decisions can be found at Canadian Legal Information Institute. See Link )

Supreme Court of Canada

Supreme Court Opinion on the Marriage Reference Questions, December 9, 2021. See Link

Frederick DeCoste, "Limited Government and Social Freedom in Reference re Same-Sex Marriage" (forthcoming in the Alberta Law Review 42:4, 2005) See Link

 

ONTARIO

Halpern et al. vs Attorney General of Canada et al
(June 10th 2003) Ontario Court of Appeal Judgement. See Link

Ontario Superior Court, (Halpern v. Canada (July 2002)
declared in favour of same-sex marriage. See Link

Legal documents for the Ontario case (including factums by
the government, applicants, interveners, etc) can be found at the Egale website: See Link

Commentary:

The Halpern Transformation:
Same-Sex Marriage, Civil Society, and the Limits of Liberal Law
F.C. DeCoste*
Select Here

 

QUEBEC

Superior Court of Quebec, "Hendricks v. Canada," Sept 6, 2002: declared in favour of same sex marriage. Extracts of the Judgement: See Link (For English excerpts : See Link )

Legal documents for the Quebec case (affidavits, factums)
can be found at the Egale site: See Link

Court of Appeal, "Catholic Civil Rights League v. Hendricks et. al." Jan 26, 2004. See Link


BRITISH COLUMBIA

BC Court of Appeal (Egale v. Canada) May 2003: declared in favour of same-sex marriage. See Link

BC Supreme Court (Egale v. Canada) Oct. 2001:
declared against same-sex marriage. See Link

 

SASKATCHEWAN:

Court of Queen's Bench: "W.(N0. v. Canada" See Link

 

YUKON TERRITORIES:

Supreme Court of the Yukon Territory: Dunbar & Edge v. Yukon (Government of) & Canada (A.G.). See Link

 

Provincial Legislation

ONTARIO

Bill 175 (2005) An Act to Amend Various Statutes in Respect of Spousal Relationships See Link

QUEBEC

Bill 84 (2002) An Act Instituting Civil Unions See Link

Quebec Civil Unions See Link

 

Three Approaches to the Marriage Question

Before the 2003 Parliamentary hearings on the marriage question, the Departmentr of Justice Discussion Paper outlined three possible resolutions: "What should marriage look like in Canadian law? The spectrum of possible approaches, outlined below, would have an array of different consequences. ... Each approach would have to be undertaken in a way that complied with the constitutional division of powers and the Charter. Each approach is examined in greater detail below."

Mary Lyndon Shanley offers an American good overview of the current legal perspectives on the marriage question, "Just Marriage", Boston Review. (Her overview tilts towards option B). See Link

 

A) Marriage as a Union of Man and Woman

"Marriage could remain an opposite-sex institution , either by:

  • legislating the opposite-sex requirement for marriage; or by
  • restating the opposite-sex meaning of marriage in the preamble of a new piece of legislation that would create an equivalent to marriage for federal purposes (either civil union or domestic partnership) for other conjugal relationships." (Minister of Justice, 2002)

The defense of the historic definition of marriage focuses on the core purposes of marriage as a social institution:

  • a sex-inclusive bond that works with the sexual ecology of heterosexual procreativity
  • a child-centred bond that attempts to secure the connection of children to their natural parents

Advocates of this position take issue with the ways in which human rights argument is employed to attack the opposite-sex conception of marriage. They argue that this rights argument is circular since it only discovers discrimination after defining the "objective core" of marriage as a committed union of consenting adults. They argue that liberal state must respect and protect this basic human institution. Given the fact that most provincial courts have struck down the historic common law definition of marriage, the legislative re-affirmation of this norm may require the invocation of the notwithstanding clause or a constitutional amendment."

Groups supporting the opposite-sex definition of marriage include: Enshrine Marriage Canada (promoting a constitutional amendment to enshrine an opposite-sex definition of marriage in the constitution) . See Link. Marriage Canada, See Link. Defend Marriage Canada, See Link. Sanctity of Marriage, See Link

"A Declaration on Marriage" Enshrine Marriage Canada Jan.18, 2005. See Link

Statement on the Status of Marriage in Canada" (June 18, 2022)
See Link

Les couples homosexuels et le mariage-une decision qui doit être portée en appel: Mr. Claude Ryan - Le Devoir, jeudi le 20 juin See Link

Margaret Somerville: "The Case Against 'Same-Sex Marriage"
Brief presented on April 29th, 2003 before the Standing Committee on Justice and Human Rights. Somerville is the Samuel Gale Professor of Law and Professor, Faculty of Medicine and Founding Director, McGill Centre for Medicine, Ethics and Law.
Select here to view the document in PDF format

Maggie Gallagher: "What is Marriage For? "Testimony on the Marriage
Affirmation and Protection Amendment
Massachusetts Statehouse April 28, 2003.
Gallagher co-authored The Case for Marriage.
Select here to view the document in PDF format

Margaret Somerville "Notes for Oral Presentation to The Standing Committee on Justice and Human Rights" (April 29th 2003).
Select here to view the document in PDF format

Monte Neil Stewart, "Judicial Redefinition of Marriage" Canadian Journal of Family Law. See Link

Katharine Young and Paul Nathanson "Marriage-a-la-mode: Answering the Advocates of Gay Marriage" A revised version of their brief to the Standing Committee on Justice
Select here to view the document in PDF format

Douglas Allen: "Comments on the Justice Minister's Same-Sex Discussion" An expanded version of the brief presented on April 1, 2022 before the Standing Committee on Justice and Human Rights.
Allen teaches economics at Simon Fraser University.
Select here to view the document in PDF format


B) Marriage as a Union of Two Persons

"Marriage could be changed to also include same-sex couples by: legislating to give same-sex couples the legal capacity to marry." (Minister of Justice, 2002). On June 10, 2022 the Ontario Court of Appeal struck down the historic common law definition of marriage as discriminatory and unconstitutional. The court redefined marriage as a union of two persons. This judgment set in motion the June 17th decision of the federal government to make this public conception of marriage the norm for all of Canada.

The arguments for this norm of marriage focus on the equality rights of gays and lesbians.

  • "freedom to marry" is a fundamental human right
  • the exclusion of gay and lesbian unions represents a form of invidious discrimination equivalent to race or sex discrimination
  • marriage is a unitive bond of committed love
  • procreation is not an inherent feature of marriage -- pointing to the fact that existing institution of marriage accommodates infertile heterosexuals
  • the redefinition of marriage of marriage will have no negative impact on heterosexuals served by this institution
  • enshrining a new public norm of marriage represents the ongoing historical transformation of marriage into a more open and inclusive institution
  • redefining marriage will enhance the institution by making it the universal norm for all close committed relaitonships

Canadian g roups supporting the "union of two persons" definition of marriage include: Equal Marriage for Same-Sex Couples (Canada). See Link. Egale Canada. See Link. Canadians for Equal Marriage. See Link. Foundation for Equal Families. See Link. PFLAG Canada. See Link.

Brief of the Law Commission of Canada to the Standing Committee on the Issue of Same-Sex Marriage See Link

Anne Marie Ambert: "Same-Sex Couples and Same-Sex-Parent Families: Relationships, Parenting, and Issues of Marriage"
A report for the Vanier Institute of the Family. Ambert is a professor of sociology at York University and author of Families in the New Millennium. See Link

EGALE Canada / Equality For Gays & Lesbians:
Egale's submission to the House of Commons Standing Committee on Justice and Human Rights. See Link

Extensive resources for the same-sex marriage argument can be readily found on the internet. Various links are listed below:

Gay Marriage: The Arguments and the Motives: Overview of arguments for same-sex marriage, plus a good list of links and resources.
http://www.bidstrup.com/marriage.htm

Same-Sex Marriage: Pathfinder: A list of resources devoted to the legalization of same-sex marriage.
http://www.rci.rutgers.edu/~axellute/ssm.htm

Gay/Lesbian Politics and Law:
http://www.indiana.edu/~glbtpol

Lambda Legal Defense & Education Fund, Marriage Project http://www.lambdalegal.org/cgi-bin/iowa/issues/record2?reco rd=9

GayLawNet's global status on same sex marriage http://www.gaylawnet.com/news/2003/ne_part.htm

'Global Status of Legal Marriage' from Partners Task Force http://www.buddybuddy.com/mar-repo.htmlIndependent Gay Forum - Gay Marriage Articles http://www.indegayforum.com/library/marriage.html

Partners Task Force for Gay & Lesbian Couples:
http://www.buddybuddy.com/toc.html

C) The State Gets Out of Marriage

" With the cooperation of the provinces and territories, Parliament could leave marriage to the religions by: removing all federal references to marriage, and replacing them by a neutral registration system for all conjugal relationships, leaving marriage exclusively to individuals and their religious institutions." (Minister of Justice, 2002).

The third option has not yet been the focus of substantive public discussion. This option does receive support from diverse schools of thought. For an overview of these positions see:

  • Daniel Cere, "Get the State out of Marriage?" See Link
  • Shanley vs. McClain, "Should the States Abolish Marriage?" See Link

1. Radical: Some of the first proponents of the disestablishment of marriage were radical social and legal theorists such as Martha Fineman, Nancy Cott, Martha Ertman, Michael Warner, and Judith Plaskow. They argue that the universalization of the conjugal norm places constraints on other forms of sexual and familial diversity.

  • Martha Ackelsberg and Judith Plaskow, "Gay and Committed, but Against Coupledness." See Link
  • Gareth Kirkby, "No, No, No, to Marriage" See Link
  • Interview with Michael Warner. See Link

2. Liberal: Some liberals argue that this option succeeds best on grounds of impartiality, fairness, respect for diversity, and the limits to the power of the state. In this view, "political liberalism" (Charles Taylor, John Rawls) is distinguished by its refusal to impose any comprehensive social ideology (whether liberal or conservative, religious or non-religious) when there is serious disagreement over the core meaning of a social institution.

  • Francis Scarpaleggia, Liberal Member of Parliament, House of Commons Debates, March 24, 2005. See Link
  • John McKay, Liberal Member of Parliament, Parliamentary Secretary, "Statement on Same-Sex Marriage." (Dec. 18, 2004) See Link.
  • A substantive exploration of this option is offered by the Law Commission of Canada in its 2001 report: "Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships." See Link
  • The "working papers" for the Beyond Conjugality Report on Close Personal Relationships. See Link

3. Conservative: Some conservatives are also attracted to this option arguing that it ensures religious freedom, underlines the critical role of civil society in marriage culture, and requires that the state maintain arespectful distance from this core social institution.

  • Deborah O'Hara, "Separation of Marriage and State" See Link.
  • Untying the Knot. See Link
  • Daniel Lewis, Marriage and the Family. See Link

4. Libertarian: Marriage is a private contract that should be free of state interference or government monopoly.

  • David Boaz, "Privatize Marriage" See Link
  • Wendy McElroy, "It's Time to Privatize Marriage" See Link
  • Deroy Murdock, "A Wall Between Marriage and State" National Review. See Link
  • Ari Armstrong, "Get the State out of Marriage" See Link
  • Michael Kinsley, "Get the State out of our Bedrooms" (2003) See Link

For a critique of disestablishment see: Stanley Kurtz, "Beyond Gay Marriage." 2003 See Link

 

Canadian Family Law

Family Law has been going through a fairly turbulent period over the last 30 years. There have been major shifts in legal approaches to marriage, divorce, and parenthood. An Australian Dean of Law, John Dewar, writes: “There are few areas of law that generate as much controversy and disagreement as family law. It's something potentially that affects us all, in which we all feel we have a stake and of which some of us have had direct experience. Indeed, there are probably few areas of law that affect so many people so directly in their every day lives.” (“Family Law and Its Discontents”, 2000)

Daniel Cere, "Love and Marriage--and Family Law" Public Interest. 2005. See Link

Trends in Canadian Family Law (Transitions Magazine). See Link

Family Law Centre (Joel Miller). See Link

"Intimate Relationships in the New Millennium," (1999) Prof. Winnifred Holland. See Link

 

Pre-Nuptial Agreements

In Miglin v. Miglin and Hartshorne v. Hartshorne (2004) the Supreme Court of Canada placed enormous legal weight on the authority of pre-nuptial agreements. Some legal commentators warn that this development represents the disappearance of public norms in this area of law. Partners can now design the content of their marital bond. Public law can no longer define substantive norms for marriage. Other legal theorists celebrate this move to "marriage à la carte" as a" positive step that provides a legal framework for a diversity of family forms.” [Martha Bailey, “Marriage á la carte: A Comment on Hartshorne v. Hartshorne.” Canadian Journal of Family Law , 20 (2004)]

Court Cases

Supreme Court of Canada, "Miglin v. Miglin" (2003). See Link

Supreme Court of Canada: "Hartshorne v. Hartshorne" Nov 6, 2004. See Link

Comment on the Hartshorne Decision. See Link

 

Divorce

The 1985 divorce act expanded the no-fault divorce system in Canada. There is ongoing debate about the impact of no-fault divorce law on marriage instabilty and the impact of divorce on the well-being of children. Major longitudinal studies such as The Unexpected Legacy of Divorce conclude that divorce has serious impact on the wellbeing of children.

Bill C-22 is proposing reforms to the 1985 divorce law that concentrate on the question of the legal relationships (custody, access, etc.) between parents and children in divorce proceedings. The debates over this legislation tend to divide over the competing custodial insterests of mothers and fathers.

This legislation does not address the problem of whether divorce laws can be reformed in ways that will help to facilitate more marital stability. According to the recent Future Families Project, marital stability remains a key aspiration for 90% of Canadians.

DIVORCE ACT, 1985. See Link

BILL C-22, An Act to Amend the Divorce Act (2002) See Link

"For the Sake of the Children" Report of the Special Joint Committe on Child Custody and Access (1998) See Link

Minister of Justice Announces a Child-Centred Divorce & Custody Strategy. (2002) See Link

Legislative Summary of Bill C-22, Act to Amend the Divorce Act. (2003) See Link

Critique and Analysis of C-22

Canadian Bar Association: Submission on Bill C-22, Reform of Divorce Act. See Link

Senator Ann Cools and MP Roger Gallaway: Bill C-22. See Link

National Association of Women and the Law (NAWL): Resources on Bill C-22. See Link

Nova Scotia Advisory Council on the Status of Women. Reponse to Bill C-22. (Aug. 2003) See Link

Vancourver Custody and Access Support and Advocacy Association: Changes to C-22. (2003) See Link

Focus on the Family News Release on C-22. See Link

Organization for the Protection of Children's Rights. Brief to Standing Committee on Justice and Human Rights. (2003) See Link

"Real Women" on C-22. See Link

Ontario Women's Justice Network on C-22. See Link

No Justice. "Bill C-22 Falls Short." See Link

SOCIAL SCIENCE RESOURCES ON DIVORCE IN CANADA

Dr. Anne-Marie Ambert, "Divorce: Facts, Causes and Consequences"
Vanier Institute 2002.
http://www.vifamily.ca/library/cft/divorce.pdf

 

Cohabitation

The rates of cohabitation have been steadily rising over the last twenty years. While many Canadians see cohabitation and marriage as similar types of relationship social science studies do indicate some significant differences. For example, marital couples tend to be more interdependent in their economic arrangements and their relationships tend to be more stable.

Court Cases:

Supreme Court of Canada: "Nova Scotia v. Walsh" Dec. 2002. (This judgment seemed to reverse the legal trend towards treating marriage and cohabitation as equivalent categories in law.) See Link

 

Families and Civil Society

Civil society is the sector of society that mediates between the individual and the state. It ensures a realm of communal freedom, association, and collaboration independent of the state. The institution of marriage is one of the foundational institutions of civil society.

Communitarian Perspectives on Family Life in Canada: See Link

 

Courtship

Daniel Cere, "Courtship Today" Public Interest. 2001See Link

Leon R. Kass, "The End of Courtship" Public Interest. 1997 See Link

Amy and Leon Kass, "Proposing Courtship." First Things. 1999. See Link

Kay Hymowitz, "Love Among the Ruins." Public Interest. See Link

Elizabeth Austin, "In Contempt of Courtship." Washington Monthly. See Link

Barbara Dafoe Whitehead. "How we Mate." 1999. City Journal. See Link

Maggie Gallagher, "What Marriage is Good For You" 2000, City Journal. See Link

Susan Crompton, "Always the Bridemaid": People who don't Expect to Marry" Statistics Canada, Canadian Social Trends, June 7, 2005. See Link

 

Family, Finances, Taxation:

What are the financial pressures on families with children? Are they given adequate support in federal and provincial taxation law? Are there policies that may ease the growing "time bind" on young families (see the work of Arlie Hochschild).

Roger Sauvé, "The Current State of Canadian Family Finances"
Vanier Institute 2002.
http://www.vifamily.ca/library/cft/state02.pdf