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Backgrounder #1870 on Legal Issues

July 20, 2005

Same-Sex "Marriage" in Canada: A Guide for American Legislators

By

Recent legal and political developments in Canada on same-sex "marriage" are enlightening for the Amer­ican constitutional debate. Canada shares a number of important characteristics with the United States. It has a complex federal system, activist courts, and evolving public opinion on questions related to homosexuality. And on the issue of homosexual rights, Canada is a nation on the leading edge of change.

In 1999, Canadian law enshrined the traditional definition of marriage as between a man and a woman.1 This definition was supported by the Cana­dian people and was passed overwhelmingly by the Canadian Parliament. By early 2005, legislation was introduced in Parliament that would enact a new def­inition of marriage that includes same-sex couples. By late June, the legislation had passed in the House of Commons by a vote of 158 to 133.

One thing is clear from this development: Trig­gered by a series of court decisions, Canadian law and political attitudes have changed with remarkable speed. The rapidity and nature of these changes offer lessons for American legislators.

This paper concentrates on several matters. First, it offers a brief overview of the Canadian constitutional system to place the Canadian developments in con­text. Second, it summarizes recent Canadian court decisions on same-sex marriage. Third, it examines changes in Canadian law, spurred by these judicial decisions. Fourth, it looks at Canadian public opin­ion on same-sex marriage, which is not markedly dif­ferent from U.S. public opinion. Finally, it points to the implications and lessons of the Canadian devel­opments for the United States and offers sugges­tions to Members of Congress who wish to prevent a similarly rapid imposition of same-sex marriage in the United States.2[1][2]

The Canadian Constitutional System

In the years before 1982, the basic constitutional document governing Canada was an 1867 act of the British Parliament, known as the British North America (BNA) Act. The BNA Act, like the U.S. Constitution, created the institutional framework for the Canadian federal system of government, including the recognition of particular executive, legislative, and judicial powers and institutions. It also distributed legislative powers between the fed­eral Parliament and the provincial legislatures. As with American states, Canadian provinces are con­stitutionally constituted entities with guaranteed jurisdiction. The Canadian federal system is thus distinguished from its more unitary British mother. Under the BNA Act, the Parliament of Canada has exclusive legislative authority over "marriage and divorce," although questions regarding the "solem­nization of marriage" are reserved to the provinces.

Under the BNA Act, judges for all superior courts are appointed federally, although most of these courts have jurisdictions limited to individual provinces, with the exception of the Supreme Court of Canada, which, like its U.S. counterpart, is the final appellate court for the country. Judicial review, to the extent it existed in Canada prior to 1982, was limited largely to separation of powers questions, particularly questions of national versus provincial power. Canadian common-law courts inherited from the British courts a belief in judicial deference and parliamentary supremacy on all mat­terslegitimately within the legislative ambit of Par­liament. Canadian courts modeled themselves after the British courts and largely relied on their consti­tutional jurisprudence.

In 1982, the Liberal government of Prime Minis­ter Pierre Elliott Trudeau managed to Canadianize the BNA Act, which was renamed the "Constitution Act, 1867." This process of gaining full control over the Canadian Constitution was known as "patria­tion." The patriation package brought in by Trudeau had several elements. For example, formal constitutional amendments could henceforth come only from Canada, in accordance with a new amending formula relying on a combination of fed­eral and provincial consent.

More importantly for present purposes, the Cana­dian Charter of Rights and Freedoms was added to the constitution. The addition of this document pro­vided a basis for a broad, rights-based judicial review of legislation that hitherto had not existed in Can­ada. Language in the Charter authorizes Parliament or provincial legislatures in effect to override judicial interpretations of the Charter. This is the "notwith­standing clause," which, if specifically invoked, allows legislation to be passed notwithstanding a Charter right. However, this clause is never invoked, often because politicians fear being painted as "anti-Charter" or as against the Constitution or human rights for simply asserting the age-old doctrine of parliamentary supremacy.

Complicating the Canadian legal picture on mar­riage is the existence of provincial human rights commissions and quasi-judicial tribunals to inves­tigate and adjudicate complaints. These commis­sions and tribunals and the human rights codes that they enforce came about in the early 1960s as ways of consolidating existing provincial equal rights laws and addressing human rights claims that common-law courts in Canada had tradition­ally avoided. Appeal of tribunal decisions to com­mon-law superior courts is generally available. Indeed, Canadian courts are now often "ahead" of even these dedicated, very progressive human rights laws and institutions.

The Charter guarantees equality before the law but specifically enumerates only race, national or ethnic origin, color, religion, sex, age, and handi­cap as prohibited grounds of discrimination. But this limited enumeration has been no barrier to Canadian courts, which have gone as far as any in the world to grant unique advantages to homosex­uals in their efforts to undermine traditional and rational understandings of human nature and, with them, the definition of marriage.

Canadian Court Cases

By the late 1990s, Canadian courts began lead­ing the progressive charge to eliminate legal dis­tinctions between heterosexuals and homosexuals and, in fact, to elevate homosexual rights over other human preferences and understandings.

In the 1998 case of Vriend v. Alberta,[3] an employee of a Christian college was fired for being a practicing homosexual. The employee attempted to file a complaint with the Alberta Human Rights Commission even though sexual orientation was not a prohibited ground of discrimination under Alberta law. Yet the Supreme Court of Canada ruled that the Alberta human rights legislation must be read as if discrimination on the basis of sexual ori­entation were specifically prohibited. The Alberta human rights law, in the court's view, was under-inclusive insofar as it denied the equal benefit and protection of the law on the basis of a personal characteristic-homosexuality-that is "analo­gous" to those specifically protected by the Charter. After Vriend, no one in Canada may discriminate on the basis of sexual orientation in the provision of services or employment.

Vriend v. Alberta illustrates how far nominally common-law courts will go in matters of homosex­ual rights adjudication. As I have written elsewhere:

[I]n Canada, a government need not pass a specific law…that infringes on an alleged constitutional right…. [I]t may be challenged if it does not pass legislation that furthers a sweepingly egalitarian human rights agenda; and its failure may be rectified by a judicial "reading in" of the absent provision…. Parliament and the provincial legislatures have, in important respects, been reduced to mere errand boys for the judicial branch.[4]

In M. v. H. (1999),[5] the Supreme Court of Can­ada heard a case involving a plaintiff, formerly involved in a common-law relationship with a same-sex partner, who was suing for spousal sup­port under Ontario's Family Law Act. The court held that the opposite-sex definition of "spouse" under the act was unconstitutional, thus laying the preliminary groundwork for full acceptance of same-sex "marriage."

In Hall v. Powers (2002),[6] a judge in Ontario ruled that a male Catholic school student was per­mitted to bring his boyfriend to the high school prom even though the Catholic Church formally disapproves of homosexuality. The court relied on what it alleged was the lack of centrality to Cath­olic schooling of the prom event itself and the lack of centrality of homosexuality-or at least divi­sion of opinion on the matter-within Catholic doctrine. In short, the court second-guessed the holders of religious belief as to what constituted a religious belief. Further, the court determined that even if religious beliefs on homosexuality are in some sense "legitimately held," they cannot necessarily be acted on.

These cases-camels' noses under the tent- pointed inexorably to the eventual elimination of marriage as it had always been known in Canada. In 2002, in Hendricks v. Quebec,[7] the highest trial court in Quebec ruled unconstitutional the stat­utory requirement in the province that marriage be between a man and a woman. In 2003, the Ontario and British Columbia Courts of Appeal (the rough equivalents of U.S. Federal Circuit Courts of Appeal) declared the common-law def­inition of marriage-the "union of one man and one woman"-to be unconstitutional. These cases were, respectively, Halpern v. Canada[8] and Equality for Gays and Lesbians Everywhere (EGALE) v. Canada.[9]

Additional appellate courts in some, but not all, provinces followed suit, though the Supreme Court of Canada never pronounced on the matter. How­ever, based on decisions in Vriend and M. v. H., along with the by now well-established political leanings of the Canadian Supreme Court, there is little doubt that the court would ratify the appellate court decisions.

Federal Legislative Developments

In June 1999, in response to M. v. H., the Parlia­ment of Canada voted by a margin of 216 to 55 to retain the common-law definition of marriage as "the union of one man and one woman to the exclusion of all others."

However, in 2000, after the Ontario govern­ment amended provincial law, Parliament amended federal law to ensure that same-sex cou­ples were entitled to essentially the same benefits and obligations as married couples or opposite-sex common-law couples. Significantly, Parlia­ment included language that sent a strong mes­sage that the traditional definition of marriage, as the union of one man and one woman, was to be unaffected by this legislation.

In July 2003, only four years after the over­whelming 1999 vote to retain the common-law definition of marriage, Parliament released the draft of a bill that would legalize same-sex marriage throughout Canada (but protect the right of reli­gious officials, though not religious groups, to refuse to perform such marriages). Rather than rebelling against appellate court decisions such as Halpern and EGALE, the prime minister announced that they would not be appealed.

By this point, Parliament appeared simply to be trying to get ahead of a judicial tidal wave and to avoid the chaos that might be generated in a federal system by a patchwork of competing legal deci­sions and laws. Beyond this, politicians feared the "anti-constitution" or "anti-human rights" labels that might be applied to them for resisting judicial supremacy. With the assertion of this judicial supremacy, Canadian politicians froze like deer in the headlights and then quickly retreated. Although public opinion had not dramatically shifted, many politicians who had opposed same-sex marriage now believed that time was not on their side and that it was easier to switch than fight.

In 2004, the federal government asked the Supreme Court to render judgment on a number of questions prior to enactment of the same-sex mar­riage bill. (Such a prospective opinion, known as a "reference case," is permissible under Canadian law.) Essentially, the court was asked whether the federal government (Parliament) had the exclusive power to define who can marry, whether expand­ing the definition of marriage to include same-sex couples was the constitutionally correct thing to do, and whether religious officials could be pro­tected from being compelled to perform same-sex marriages. In December 2004, the court handed down its decision, which confirmed that Parlia­ment has the power to define marriage, but the court declined to pronounce on whether or how Parliament had to redefine marriage. (By now, the direction of the lower courts and the government was clear, so the Supreme Court could display a false modesty.) The court also declined to mark out in detail the exemptions that religious officials or organizations might enjoy in refusing to perform or promote same-sex marriage, instead leaving these matters of solemnization of marriage to the prov­inces and their respective human rights laws.

In February 2005, Canadian Prime Minister Paul Martin stood in the House of Commons to support Bill C-38, which allows for same-sex marriage. His articulation of the new center of gravity within his Liberal Party is instructive. It represents well the mindset of progressive politicians overawed by naked assertions of judicial power. His remarks had four main thrusts.

First, he indicated his view that rights as defined by courts are absolute, regardless of public opinion (and, in the Canadian case, the overwhelming opinion of Parliament itself-including Martin- only a few years earlier). Yet, as is true of the U.S. Constitution, nothing in the Canadian Constitu­tion suggests that courts ought to enjoy this para­mount position, or that they are inerrant. Indeed, language in the Canadian Constitution-the not­withstanding clause-explicitly authorizes legisla­tive override of judicial interpretations or creations of a Charter "right." Martin explicitly rejected the use of the notwithstanding clause as a retrograde contraction of rights established-if only just-by courts. He also perversely claimed that such a rejection reflected the fact that rights are "eternal," not subject to "political whim." This claim to eter­nity was incoherently mingled with the claim that laws must reflect today's conception of equality, not that of a century or even a mere decade ago.

Fourth,

If marriage is severed from its natural, Biblical, and historical/traditional meaning, almost anything is pos­sible. Indeed, in Canada, some have suggested that, on the egalitarian logic legalizing same-sex "marriages," there is no logical basis to prohibit polygamous mar­riages. What comes next is truly anyone's guess.

There are at least four critical lessons that Ameri­can observers can take from the Canadian example:

  • The Canadian federal system is similar enough to the American system to give pause to those who argue that same-sex marriage can be con­tained in certain states. The goal of those argu­ing for it at the state level is not the protection of federalism, but the eventual universal tri­umph of same-sex marriage. This, combined with the logic of modern federal systems unduly dominated by judicial power, does not bode well for traditional marriage or federalism.
  • Bradley C. S. Watson holds the Philip M. McK­enna Chair in American and Western Political Thought at Saint Vincent College in Latrobe, Pennsylvania.


    [1] This common-law definition is, in turn, rooted in the view that marriage is reflective of the natural order, and particularly the procreative order, rather than the satisfaction of individuals' desires to be contractually "recognized." In support of this procreative order, marriage confers unique rights and obligations on parents and cements a father's obligations to his chil­dren. Indeed, the proper rearing of children is essential to the survival and flourishing of all societies. Marriage thus has a civilizing-and civil, in addition to ecclesiastical-purpose. The long-established and essentially universal rule has therefore been that marriage is possible only between a man and a woman. The fact that some marriages do not result in children does not vitiate the rule or the natural order that it reflects.

    [2] For a more detailed analysis of the same-sex "marriage" debate as it has developed in the United States, and the case for amending the U.S. Constitution to protect marriage, see Matthew Spalding, Ph.D., "A Defining Moment: Marriage, the Courts, and the Constitution," Heritage Foundation Backgrounder No. 1759, May 17, 2004, at www.heritage.org/Research/ LegalIssues/bg1759.cfm.

    [3] Vriend v. Alberta , 1 S.C.R. 493 (1998).

    [4] Bradley C. S. Watson, Civil Rights and the Paradox of Liberal Democracy (Lanham, Md.: Lexington Books, 1999), pp. 49-50.

    [5] M. v. H. , 2 S.C.R. 3 (1999).

    [6] Hall (Litigation guardian of) v. Powers , O.J. No. 1803 (O.S.C., 2002).

    [7] Hendricks v. Quebec , J.Q. No. 3816 (2002).

    [8] Halpern v. Canada , O.J. No. 2268 (O.C.A., 2003).

    [9] Equality for Gays and Lesbians Everywhere (EGALE) v. Canada ,B.C.J. No. 993 (B.C.C.A., 2003).

    [10] I have written elsewhere on this highly unusual claim and its implications. See Bradley C. S. Watson, "Love's Language Lost," Claremont Review of Books, Vol. 5, No. 2 (Spring 2005).

    [11] Ipsos-Reid poll, conducted November 19-22, 2004.

    [12] Nordic Research Group poll, conducted December 11-16, 2004.

    [13] Compas poll, released February 2, 2005.

    [14] For further analysis of how a federal constitutional amendment to protect marriage supports and strengthens federalism, see Edwin Meese III and Matthew Spalding, Ph.D. "A Shotgun Amendment," Heritage Foundation Commentary, March 10, 2004, at www.heritage.org/Press/Commentary/ed031004b.cfm .

    [15] Ontario v. Brillinger , O.J. No. 2375 (O.S.C., 2002).

    [16] Owens v. Saskatchewan , 228 Sask. R. 148 (Sask. Q.B., 2002).

    [17] Boy Scouts v. Dale, 530 U.S. 640 (2000).

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