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Same Sex Marriages Bill Goes to Supreme Court

Government asks for Supreme Court opinion on draft bill

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A draft bill changing the definition of marriage in Canada to include same-sex marriages was referred to the Supreme Court of Canada on July 17, 2003. The bill is designed to provide equality for all Canadians by recognizing the unions of same-sex couples and at the same time protect freedom of religion by allowing officials of religious groups to refuse to conduct marriage ceremonies that don't fit their religious beliefs.

The new definition of marriage in the draft bill is "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."

The Canadian federal government sent the draft bill to the Supreme Court of Canada to get the court's opinion on the constitutionality of the bill before introducing the bill in the House of Commons.

Original Reference Questions

The three questions the government first asked the Supreme Court are:

  • Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
  • Is the section of the draft bill that extends capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?
  • Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

Additional Reference Question

In January 2004, the new Liberal government under Prime Minister Paul Martin reaffirmed the position on the marriage reference, but said it wanted to stress the "importance of a full and informed debate before the court, in Parliament and in response to concerns of the public." To that end, the government added a fourth question to the reference to the Supreme Court:

  • Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s.5 of the Federal Law - Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

While the original reference was scheduled to be heard by the Supreme Court of Canada on April 16, the addition of a new question will delay the hearing, probably at least until the fall of 2004 and quite likely until after a federal election.

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