Frequently Asked Questions
Civil Marriage Act

The Legislation

What does this legislation do?

The legislation extends equal access to civil marriage to same-sex couples while respecting religious freedom.

Why did the Government enact this legislation?

The Government believes that its legislation is the appropriate way to uphold the Canadian Charter of Rights and Freedoms. The Government is committed to the equality for all Canadians as guaranteed by the Charter, including the protection of minorities. It was critical that this Parliament act to provide uniformity of law across our country rather than leaving this to the courts alone.

The Government is equally committed to upholding religious freedom and nothing in this legislation affects the existing Charter guarantee.

Why are there amendments to other federal laws?

The consequential amendments were chosen on a principled basis and are those necessary to put same-sex couples in the same legal position as opposite-sex couples for the purposes of civil marriage and divorce.

The legislation includes amendments to eight federal laws: the Canada Business Corporations Act, Canada Cooperatives Act, Civilian War-related Benefits Act, Divorce Act, Federal Law and Civil Law of the Province of Quebec Act, Income Tax Act, Marriage (Prohibited Degrees) Act, and Modernization of Benefits and Obligations Act. These amendments were made to ensure the equal treatment of opposite-sex and same-sex married couples.

Why does the legislation include a preamble?

The preamble sets out clearly for Canadians the reasons that the Government enacted this legislation. In this way, all Canadians can see for themselves what those reasons are which is consistent with the Government's view of democratic reform.

Religious Freedom

Does the legislation affect religious freedom?

The Supreme Court was clear that religious freedom is already constitutionally protected by the Charter.

The Court went on to state that a religious official cannot be compelled to perform same-sex marriages that are contrary to their religious beliefs. To do so would be a violation of the Charter.

No church, synagogue, mosque or temple can be forced to perform a marriage that goes against their religious beliefs.

The Government's legislation affirms its commitment to upholding religious freedom by including specific references to the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms.

The bottom line is that the religious freedoms of all Canadians are protected under the Charter.

Will public marriage officials, religious schools and others, also be protected?

This is not a new issue. This legislation has no effect on how this matter would be resolved. Most specific situations involving religious freedom are not within federal jurisdiction, but would fall within provincial or territorial human rights legislation. The outcome would depend on the specific facts. However, the Supreme Court was clear that religious freedom is fully protected by the Charter, and that human rights tribunals must also consider how to protect this fundamental freedom.

Alternate Approaches

Why did the Government extend civil marriage instead of using some other term such as civil union?

Only equal access to civil marriage will fully comply with Charter equality guarantees. Any institution other than marriage, such as civil union, is less than equal.

This Government represents the rights of all Canadians equally, and will not treat some Canadians as second-class citizens.

Rights are rights are rights – none of us can, nor should we, pick and choose the minorities whose rights we will defend and those whose rights we will ignore.

But doesn't the fact that the Supreme Court refused to answer the question about the constitutionality of opposite-sex marriage mean it could still be constitutional?

The Supreme Court was clear that although it did not answer this question, it did hold that the Government's proposed legislation was not only constitutional but flowed from the equality rights protection of the Charter.

The only way to re-enact the opposite-sex limitation on marriage would be to repeal this legislation, effectively overruling earlier court decisions, and enact new legislation using the notwithstanding clause to deliberately take away Charter protected rights from a minority.

The Prime Minister stated that he would not use the notwithstanding clause in this circumstance to deny rights guaranteed by the Charter to a minority. If one minority can be deliberately discriminated against, then others are potentially at risk.

The Government of Canada can either uphold the Charter because we believe in its values, or we can abandon the Charter. This Government will uphold the Charter.

Impact of the legislation

Doesn't legislating changes to civil marriage to include same-sex unions mean that the Government is starting down a slippery slope that will lead to other changes such as polygamy?

No. The legislation specifically restricts the definition of civil marriage to two persons to the exclusion of all others. The practice of polygamy, bigamy and incest are criminal offences in Canada and will continue to be criminal offences in Canada.

Allowing same-sex couples to marry will enhance democratic values by promoting the equality and dignity of the individuals. The practice of polygamy has the potential to erode those values. These fundamental differences justify the different treatment, and explain why polygamy will continue to be prohibited under Canadian criminal law.

Department of Justice
July 2005