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.
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
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.
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
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
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
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.
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
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
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, 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.
Alberta illustrates how
far nominally common-law courts will go in matters of
homosexual rights adjudication. As I have written
[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
In M. v.
H. (1999), 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), 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.
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, 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 and Equality for Gays
and Lesbians Everywhere (EGALE) v. Canada.
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
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
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
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.
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.
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
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
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
Bradley C. S.
Watson holds the Philip M. McKenna Chair in American and
Western Political Thought at Saint Vincent College in Latrobe,
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.
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/
Vriend v. Alberta
, 1 S.C.R. 493 (1998).
Bradley C. S. Watson, Civil Rights and the Paradox of Liberal
Democracy (Lanham, Md.: Lexington Books, 1999), pp.
M. v. H.
, 2 S.C.R. 3 (1999).
Hall (Litigation guardian of) v. Powers
, O.J. No. 1803 (O.S.C., 2002).
Hendricks v. Quebec
, J.Q. No. 3816 (2002).
Halpern v. Canada
, O.J. No. 2268 (O.C.A., 2003).
Equality for Gays and Lesbians Everywhere (EGALE) v.
,B.C.J. No. 993 (B.C.C.A., 2003).
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
Ipsos-Reid poll, conducted November 19-22, 2004.
Nordic Research Group poll, conducted December 11-16,
Compas poll, released February 2, 2005.
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
Ontario v. Brillinger
, O.J. No. 2375 (O.S.C., 2002).
Owens v. Saskatchewan
, 228 Sask. R. 148 (Sask. Q.B., 2002).
Scouts v. Dale, 530
U.S. 640 (2000).