watch this spot: Supreme Court of Canada decision on same-sex marriage

[iverglas]

The Court's decision on the federal government's questions regarding its jurisdiction over marriage, and the constitutionality of legislating to permit same-sex marriage, had not been expected for some months.

Last week, the Court announced that it will be handing down its decision this Thursday. Here is the press release:


http://www.lexum.umontreal.ca/csc-scc/en/com/2004/html/04-11-30.2.wpd.html

SUPREME COURT OF CANADA -- JUDGMENT TO BE RENDERED IN REFERENCE

OTTAWA, 2004/11/30. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING REFERENCE WILL BE DELIVERED AT 9:45 A.M. ON THURSDAY, DECEMBER 9, 2004.

FROM: SUPREME COURT OF CANADA [phone]

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, as set out in Order in Council P.C. 2003-1055, dated July 16, 2003 (29866)

29866 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, as set out in Order in Council P.C. 2003-1055, dated the 16th of July 2003

By Order in Council P.C. 2003-1055, dated the 16th of July 2003, Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 53 of the Supreme Court Act, refers to the Supreme Court of Canada for hearing and consideration the following questions:

1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

On January 28, 2004, the Governor in Council filed a Notice of Amended Reference amending this Reference by asking a fourth question.

4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Québec 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?

When the decision is released, you will be able to find it by doing a google search for lexum marriage reference december 2004, I expect; that search should also return google's list of news reports ("lexum" is the U of Montreal website where SCC decisions are published, and is the handy keyword to use whenever searching for them).

[terrya]

1. How many provinces are holdouts on this?

I know Alberta is one.

Do you think the Supreme Court's earlier than expected decision bodes well for the federal consitutionality of same-sex marriage?

[iverglas]

2. I wasn't sure ...

so I asked egale.ca

http://www.egale.ca/index.asp?lang=E&item=983

Ontario -- 10 June 2003
British Columbia -- 8 July 2003
Quebec -- 19 March 2004
Yukon -- 14 July 2004
Manitoba -- 16 September 2004
Nova Scotia -- 24 September 2004
Saskatchewan -- 5 November 2004

Same-sex couples can marry throughout most of Canada. Egale Canada has worked with couples and lawyers across Canada, one province or territory at a time. In every case, the courts have ruled strongly in favor of marriage equality.

(on edit: that leaves Alberta, New Brunswick, Newfoundland and PEI, and the Northwest Territories and Nunavut, in the last century.)

The thing is that, under the constitutional division of powers, the fed govt has jurisdiction over "marriage and divorce", and the provinces have jurisdiction over "the solemnization of marriage in the province".

So the feds control who can get married, and the provinces control who can get a marriage licence. That's why the cases have all been provincial: challenges to refusals to issue marriage licences under the provincial legislation.


I suspect that the early decision is a good omen. The Court is believed to have been peeved at having this dumped in their lap in the first place.

[SnowBack]

3. Supremes OK Gay marriage

Supreme Court has said Gay marriage is OK. Now the Government just has to have a vote.

The Liberals are split, a couple of Conservatives will support it, the NDP is telling its MP's they have to support it and the Bloq will support it...

So looks like in the new year, Gay marriage should be across all of Canada

:toast::toast::toast::toast::toast::toast::toast::toast:

[iverglas]

4. links to LBN thread and to SCC judgment

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x1057035

This is the judgment:

http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc079.wpd.html

From the headnote (summary):

The operative sections of the proposed legislation read as follows:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

Held: Question 1 is answered in the affirmative with respect to s. 1 of the proposed legislation and in the negative with respect to s. 2. Questions 2 and 3 are both answered in the affirmative. The Court declined to answer Question 4.

Question 1

Section 1 of the proposed legislation is intra vires Parliament. In pith and substance, s. 1 pertains to the legal capacity for civil marriage and falls within the subject matter of s. 91(26) of the Constitution Act, 1867. Section 91(26) did not entrench the common law definition of "marriage" as it stood in 1867. The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. Read expansively, the word "marriage" in s. 91(26) does not exclude same-sex marriage. The scope accorded to s. 91(26) does not trench on provincial competence. While federal recognition of same-sex marriage would have an impact in the provincial sphere, the effects are incidental and do not relate to the core of the power in respect of "solemnization of marriage" under s. 92(12) of the Constitution Act, 1867 or that in respect of "property and civil rights" under s. 92(13).

Section 2 of the proposed legislation is ultra vires Parliament. In pith and substance, s. 2 relates to those who may (or must) perform marriages and falls within the subject matter allocated to the provinces under s. 92(12).

Question 2

Section 1 of the proposed legislation is consistent with the Charter. The purpose of s. 1 is to extend the right to civil marriage to same-sex couples and, in substance, the provision embodies the government's policy stance in relation to the s. 15(1) equality concerns of same-sex couples. This, combined with the circumstances giving rise to the proposed legislation and with the preamble thereto, points unequivocally to a purpose which, far from violating the Charter, flows from it. With respect to the effect of s. 1, the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the s. 15(1) rights of another. The promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster. Although the right to same-sex marriage conferred by the proposed legislation may potentially conflict with the right to freedom of religion if the legislation becomes law, conflicts of rights do not imply conflict with the Charter; rather, the resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation. It has not been demonstrated in this reference that impermissible conflicts -- conflicts incapable of resolution under s. 2(a) -- will arise.

Question 3

Absent unique circumstances with respect to which the Court will not speculate, the guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.

Question 4

In the unique circumstances of this reference, the Court should exercise its discretion not to answer Question 4.

(Question 4 is not of any general interest; it relates to the situation that arises in Canada because Quebec's civil law (which governs various aspects of marriage) is a "continental", droit civil system, while the other provinces and territories are common law jurisdictions. A few years ago, the federal govt embarked on a big project to "harmonize" the civil law aspects of its legislation with Quebec's system. Quebec's opposite-sex requirement is now inconsistent with what Quebec courts have ruled, by which Quebec has abided, and therefore cannot be applied anyway.)

The provinces still have jurisdiction over who gets marriage licences in the province, but it could not refuse to issue licences to same-sex couples, because this would be interfering in a matter under federal jurisdiction.

[GodlessBiker]

5. A tip of the hat to our northern neighbors. Thank you.