Factum of the Attorney General of Canada: Reference to the Supreme Court of Canada
Legal Canada - A reference for same-sex marriage
October 31, 2003
A reference for same-sex marriage
appreciations thrown up by new social conditions or reassessments of old appreciations
which new or altered social conditions induce make it appropriate for this court
to re-examine courses of decision on the scope of legislative power when fresh
issues are presented to it ..."
The Attorney General of Canada (AGC) issued a factum to the Supreme Court of Canada (SCC) yesterday "in the matter of a reference by the Governor in Council concerning the proposal for An Act Respecting Certain Aspects of Legal Capacity For Marriage For Civil Purposes." The factum or Reference to the SCC "affirms the validity of proposed federal legislation" that "would provide a uniform law across the country extending the capacity to marry to same-sex couples."
Half of Canada's population currently lives with full equality for gays and lesbians (Ontario and British Columbia), and while there is nothing other than political will preventing the rest of Canada from complying with the new common-law definition of marriage ("two persons"), the AGC's reference to the SCC will force the other provinces into compliance.
Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?
The AGC points out that the new legislation would change one aspect of the legal capacity to marry for civil purposes, by stating that marriage "is the lawful union of two person to the exclusion of all others." The legal capacity to marry is Parliament's exclusive domain. The Constitution Act (1867) gives Parliament jurisdiction over "capacity", such as "prohibited degrees of consanguinity or the existence of a prior marital relationship. The provinces have jurisdiction over pre-ceremonial requirements and the qualifications of the person performing the ceremony."
Contrary to the claims of faith-based opposition, marriage has always been evolving, and the AGC illustrates in its Factum examples where Parliament has modified the terms of capacity.
"In 1882, for example, Parliament passed legislation repealing the prohibition against marriage between a man and the sister of his deceased wife. In 1990, Parliament replaced the old law on prohibited degrees of consanguinity with the Marriage (Prohibited Degrees) Act, which provided that persons may not marry if they are lineally related by consanguinity or adoption or if they are brother and sister by consanguinity or adoption. Parliament, therefore, has historically legislated with respect to certain aspects of capacity to marry. The legislative proposal before the Court in this Reference would be another exercise of the same federal jurisdiction."
The Constitution Act's use of the word "marriage" should not be restricted to an 1867 meaning, the AGC says. Such a "frozen concepts" approach would be contrary to the "living tree" principles that the SCC consistently takes in constitutional interpretation.
"The Constitution must be continuously adapted to new conditions and new ideas ... a progressive analysis has been used in the past to accommodate social, economic and technological developments that did not exist, and could not have been contemplated, when the constitutional provision at issue was entrenched ... In the 21st century, marriage can include same-sex couples who want to unite in this institution and whose unions share in the current understanding of the essence of marriage, including in some cases the rearing of children."
The AGC agrees with the B.C. court judgment which found that marriage must be interpreted "as describing a subject for legislation, not a definite object" and thus it is "within the legislative authority of the Parliament of Canada."
Is the new legislation consistent with the Charter?
The second question of the Reference examines whether the new "two persons" definition of marriage is consistent with our Canadian Charter of Rights and Freedoms. The marriage cases in Ontario, Quebec and British Columbia have all confirmed that it is unconstitutional discrimination to deny same-sex couples the right to marry.
This is not a matter of religion, the AGC says, agreeing with the judgment of the Court of Appeal for Ontario. "... what is at issue is not the validity or invalidity of various forms of religious marriage, but the state's decision to extend legal recognition for civil purposes to same-sex unions."
Of course, faith-based bigots aren't really concerned about their own religious freedom to refuse to marry a same-sex couple. What they really want is to have their religious beliefs imposed on others through Parliament.
Religious freedoms, the AGC points out "enshrines no right to demand that the state withhold recognition or accommodation of practices that might be contrary to particular religious beliefs ... this freedom certainly does not extend to a right to compel others to act, or to limit their ability to act, in accordance with a religious belief."
"The recognition of same-sex unions does not marginalize or stigmatize any individual belonging to a religious or cultural group that may hold a different understanding of marriage," the AGC says.
What does stigmatize religious groups, however, is their insistence on imposing their views on others. A bigot isn't one who is opposed to same-sex marriage. It's one who tries to impose (not just express) those views on others in the public square, as we recently saw through the disgraceful actions of the Pope this past summer.
Are religious officials protected from being compelled to perform a same-sex marriage?
The AGC cites the Big M Drug Mart case to confirm that religious officials are indeed protected from being compelled to solemnize a gay marriage: "Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience."
"Coercing a religious official to perform a marriage ceremony, contrary to his or her religious beliefs, cannot be justified in order to protect public safety, order, health or morals or the fundamental rights and freedoms of others," the AGC says.
Of course religious officials are protected, just as gay and lesbian couples are, at last, protected from them.