Decision of the Supreme Court of Canada on the Marriage Reference

The Supreme Court of Canada rendered its decision on December 9, 2004, in the Marriage Reference. The Court ruled:

• Section 1 of the Government’s proposed legislation extending civil marriage to same-sex couples is constitutional and that its very purpose flows from the Charter (para. 43);
• The Charter protects religious officials from being compelled to perform marriages between two persons of the same sex if it is contrary to their religious beliefs (paras. 59 and 60);
• Section 2 of the proposed legislation on the protection of religious freedom goes beyond federal jurisdiction into matters that are provincial jurisdiction.  Religious freedom is already protected by the Charter, but if additional protections are desired, they would have to be done by the Provinces and Territories (para. 37);
• The Court declined to answer the question on whether the opposite-sex requirement for marriage is constitutional, as they felt it was unnecessary, in light of the unique combination of factors at play (para. 71).

Further details on the Court’s response to each of the questions follow.

1. Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?

   The Court said that the “living tree” approach to the Constitution and the Charter must be applied here because it “ensures the continued relevance and, indeed, legitimacy” of both (para. 23).  The meaning of marriage is not fixed at the time the Constitution was enacted in 1867.  Rather, marriage must be viewed as part of the evolution in Canadian society since that time, including the fact that Canada is a pluralistic country and the fact that same-sex marriage has now been recognized in seven Canadian jurisdictions and two European countries (para. 25).

   The Court also clarified that the Government’s proposed legislation is only about “civil marriage as a legal institution”, and that it does not affect religious marriage (para. 42). Marriage and civil unions are separate legal concepts, and each must comply with the Charter.  The Court added that “civil unions are a relationship short of marriage and are, therefore, provincially regulated” (para. 33).  The definition of marriage is within federal jurisdiction, and civil unions are within provincial and territorial jurisdiction.

   The Court held that section 2 of the proposed legislation goes beyond federal jurisdiction.  The Charter already protects religious freedom, but if additional protections are desired, only the provinces “may legislate exemptions to existing solemnization requirements” (para. 37).  This means that only provincial and territorial laws can add specifically protections for religious officials from being compelled to perform same-sex marriages.

2. Does section 1 of the proposed legislation conform to the Charter?

   Section 1 of the proposed legislation – which extends equal access to civil marriage to same-sex couples – is not only consistent with the Charter, the Court held that its very purpose, "flows from it" (para. 43).

   The Court states clearly that “the protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded” (para. 53).  The equality rights of religious groups and of opposite-sex married couples are not in any way undermined by the proposed legislation.  Rather, in the Court’s view, the promotion of Charter rights enriches our society (para. 46).  Providing equal access to civil marriage to one group cannot constitute a denial of the legal rights of others (para. 48).  If a conflict between religious freedoms and equality rights arises, the Court states that it would be resolved by the internal balancing and delineation of the respective rights within the Charter (paras. 52).

3. Does the Charter protect religious officials from performing marriages between two persons of the same sex if it is contrary to their religious beliefs?

   The Court held that the Charter guarantee of freedom of religion is broad enough to protect those religious officials from being compelled by government to perform civil or religious same-sex marriages that are contrary to their religious beliefs “absent unique circumstances with respect to which we will not speculate” (para. 60).  The Court stated that this reasoning also applies to other concerns of religious groups, such as being forced to rent sacred spaces for the celebration of same-sex marriages and religious officials being forced to celebrate civil marriages (para. 59).

   The Court noted that the Charter already provides clear protection for religious freedom, but if additional protections are desired, it is the provinces and territories that have jurisdiction to make those further protections in their laws.  The Court went on to note that provincial “human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter” (para. 55).

4. Is the opposite-sex requirement for marriage constitutional?

   The Supreme Court declined to answer the question of whether the opposite-sex requirement for marriage is consistent with s. 15 of the Charter, as answering the question “serves no legal purpose” (para. 65).  The government had already clearly indicated that it accepted the lower court rulings and intended to proceed with legislation allowing same-sex marriage.  There was “no precedent for answering a reference question” (para. 68) that has already been answered by the lower courts and relied upon by “thousands of couples” (para. 67).  In the Court’s view, “uniformity of the law is essential”.  It would be preferable for Parliament to legislate to achieve uniformity of the law, as that is “the very reason that Parliament was accorded legislative competence in respect of marriage” in the Constitution.  If the Court answered this question, it could undermine the government’s own stated goal of providing access to civil marriage across Canada and risk creating legal confusion (paras. 69 and 70).

Although the Court did not answer the fourth question, it made several statements earlier in its ruling that support the lower court decisions:

• the Government’s proposed legislation has “a purpose which, far from violating the Charter, flows from it” (para. 43);
• the proposed legislation is “consistent with the Charter” (para. 69);
• the meaning of marriage is not fixed in time when the Constitution was enacted, but must be looked at in connection with the “living tree” principle (para. 24); and
• the “recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion” that marriage is understood as only available to opposite-sex couples (para. 25).

A Departmental Backgrounder and the proposed legislation referred to the Supreme Court can be found at: 
http://canada.justice.gc.ca/eng/news-nouv/fs-fi/2004/doc_31322.html