Same-sex Marriage in Canada - Overview

Overview

Same-sex marriage was originally legalized as a result of court cases in which provincial or territorial justices ruled existing bans on same-sex marriage unconstitutional. Thereafter, many gay and lesbian couples obtained marriage licences in those provinces; like opposite-sex couples, they did not need to be residents of any of those provinces to marry there.

The status of marriages for same-sex couples created in these jurisdictions existed in somewhat of an interim legal capacity. According to the Constitution of Canada, the definition of marriage is the exclusive responsibility of the federal government—this interpretation was upheld by a December 9, 2004 opinion of the Supreme Court of Canada (Re Same-Sex Marriage). Until July 20, 2005, the federal government had not yet passed a law redefining marriage to conform to recent provincial court decisions. Until the passage of Bill C-38, the previous definition of marriage was binding in the four jurisdictions where courts had not yet ruled it unconstitutional, but void in the nine jurisdictions where it had been successfully challenged. Given the Supreme Court ruling, the role of precedent in Canadian law, and the overall legal climate, it was very likely that any challenges in the remaining four jurisdictions to result in same-sex marriage becoming legal there as well. Indeed, federal lawyers had ceased to contest such cases and only Alberta's Conservative provincial government remained officially opposed. Alberta Premier Ralph Klein threatened to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, which many law experts argued would not work.

On June 17, 2003, Liberal Prime Minister Jean Chretien announced that the Government would present the bill, which would allow same-sex couples equal rights to marry. A draft of what would become Bill C-38 was released on July 17, 2003, by the Liberal Minister of Justice, Martin Cauchon. Before introducing it into Parliament, the federal Cabinet submitted the bill as a reference to the Supreme Court (Re Same-Sex Marriage), asking the court to rule on whether limiting marriage to heterosexual couples was consistent with the Canadian Charter of Rights and Freedoms and if same-sex civil unions are an acceptable alternative. On December 9, 2004, the Supreme Court of Canada ruled that the marriage of same-sex couples is constitutional, that the federal government has the sole authority to amend the definition of marriage, and the Charter's protection of freedom of religion grants religious institutions the right to refuse to perform the marriage ceremonies for same-sex couples.

Following the Supreme Court's decision, Liberal Justice Minister Irwin Cotler, introduced Bill C-38 on February 1, 2005, to legalize marriage between persons of the same sex across Canada. The Paul Martin government supported the bill but allowed a free vote by its backbench MPs in the House of Commons. Defeat of the bill in Parliament would have continued the status quo and probably incremental legalization, jurisdiction by jurisdiction, via court challenges. This trend could have been reversed only through Parliament passing a new law that explicitly restricted marriage to opposite sex couples notwithstanding the protection of equality rights afforded by the Canadian Charter of Rights and Freedoms or by amending the Canadian constitution by inserting the clause "marriage is defined as being between a man and a woman", as was recommended by several conservative religious groups and politicians. Given the composition of the House of Commons at the time, such a measure would have been very unlikely to pass. Conservative Alberta Premier Ralph Klein proposed putting the question to the public at large via a national referendum, but his suggestion was rejected by all four party leaders.