Between 2003 and 2005, the courts of eight provinces and two territories held that the traditional common law definition of "marriage" as "the voluntary union for life of one man and one woman to the exclusion of all others"8
contravenes section 15 of the Canadian Charter of Rights and Freedoms9 by precluding same-sex marriage and cannot be saved under section 1 of the Charter. Consequently, marriage was judicially redefined to mean the voluntary or lawful union of two persons to the exclusion of all others.10Instead of appealing any of these rulings to the Supreme Court of Canada, the Canadian government decided to introduce legislation to reflect the judicial redefinition of marriage to include same-sex marriage.11Before doing so, however, it invoked section 53 of the Supreme Court Act,12pursuant to which the Governor in Council referred the following questions to the Supreme Court of Canada:131. 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?
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?
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?
Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 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?
The operative sections of the proposed legislation read as follows:
Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
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.
The responses of the Supreme Court of Canada were as follows:
Question 1 was answered in the affirmative with respect to section 1 of the proposed legislation but in the negative with respect to section 2. Questions 2 and 3 were both answered in the affirmative. The Supreme Court of Canada declined to answer question 4.
In ruling that section 1 of the proposed legislation is intra vires Parliament, the Supreme Court of Canada held that section 91(26) of the Constitution Act, 1867 does not entrench the common-law definition of marriage as it stood in 1867, when marriage was perceived as "the voluntary union for life of one man and one woman to the exclusion of all others." Accepting an expansive definition of "marriage" to include same-sex marriage, the Supreme Court of Canada concluded that, while the proposed federal legislative recognition of same-sex marriage would have an impact in the provincial legislative sphere, these effects are incidental and do not relate to the core of the provincial powers relating to the "solemnization of marriage" and "property and civil rights" under sections 92(12) and 92(13) of the Constitution Act, 1867. Section 2 of the proposed legislation was found to be ultra vires Parliament, however, because it pertains to the solemnization of marriage which falls within the provincial legislative domain under section 92(12) of the Constitution Act, 1867.
Section 1 of the proposed legislation, which reflects the government’s policy stance towards equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms, was perceived by the Supreme Court of Canada as flowing from the Charter and was, therefore, consistent with the values protected by section 15(1), notwithstanding any potential conflicts that might arise between the right to same-sex marriage and the right to freedom of religion, which conflicts should be resolved within the ambit of the Charter itself by way of internal balancing and delineation.
The Supreme Court of Canada held that, absent unique circumstances about which the Court would not speculate, the guarantee of religious freedom in section 2(a) of the C...