Reference Re Same-Sex Marriage,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Citation: (2004), 328 N.R. 1 (SCC),2004 SCC 79
• Court: Supreme Court (Canada)
• Date: 09 December 2004

Ref. Re Same-Sex Marriage (2004), 328 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.R. TBEd. DE.001

In The Matter Of Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26;

And 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; 2004 SCC 79; 2004 CSC 79)

Indexed As: Reference Re Same-Sex Marriage

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

December 9, 2004.

Summary:

The federal government asked the Supreme Court to hear a reference on proposed legis­lation respecting certain aspects of legal capacity for marriage for civil purposes. Section 1 of the legislation provided that "Mar­riage, for civil purposes, is the lawful union of two persons to the exclusion of all others". Section 2 provided that "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 questions submitted on the reference were (1) whether ss. 1 and 2 were within Parliament's ex­clusive legis­lative competence; (2) if so, whether s. 1, by extending the capacity to marry to same-sex couples, was consistent with the Charter of Rights and Freedoms; (3) whether freedom of religion under s. 2(a) of the Charter pro­tected religious officials from being com­pelled by the state to perform same-sex mar­riages con­trary to their religious beliefs; and (4) whether 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, was consistent with the Charter.

The Supreme Court of Canada stated that: (1) s. 1 of the proposed legislation fell with­in Parliament's exclusive jurisdiction over marriage (Constitution Act, s. 91(26)) and s. 2 of the proposed legislation fell within the province's exclusive jurisdiction over the solemnization of marriage (Constitution Act, s. 92(12)) and was, accordingly, ultra vires Parliament; (2) s. 1, which defined marriage as the union of two persons, was consistent with the Charter; and (3) freedom of religion under s. 2(a) of the Charter afforded relig­ious officials protection against state compul­sion to perform same-sex marriages contrary to their religious beliefs. The court held that it would be inappropriate to answer the fourth question and exercised its discretion to decline to answer the question.

Civil Rights - Topic 397

Freedom of conscience and religion - In­fringement of - Marriage restrictions (incl. same-sex marriages) - Section 1 of the pro­posed federal legislation respecting certain aspects of legal capacity for mar­riage for civil purposes provided that "Mar­riage, for civil purposes, is the lawful union of two persons to the exclusion of all others" - The Supreme Court of Canada opined that the purpose of s. 1, to extend the right to civil marriage to same-sex couples, was con­sistent with s. 15(1) (equality) and s. 2(a) (religion) of the Charter - The court stated that "the mere recognition of the equality rights of one group cannot, in it­self, constitute a viol­ation of the 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." - As to s. 2(a), the court rejected the sub­mission that s. 1 would have the effect of imposing a domi­nant social ethos that would limit the free­dom to hold contrary religious beliefs and stated that the poten­tial for a "collision of rights" in spheres other than that of the solemnization of marriages by religious of­ficials was not shown to violate the Char­ter - It was not shown that impermis­sible conflicts, in­capable of resolution under s. 2(a), would arise - See paragraphs 40 to 54.

Civil Rights - Topic 397

Freedom of conscience and religion - In­fringement of - Marriage restrictions (incl. same-sex marriages) - The Supreme Court of Canada opined that freedom of religion (Charter, s. 2(a)) protected relig­ious offi­cials from state compulsion to perform same-sex marriages contrary to their relig­ious beliefs, given the expansive protection afforded by s. 2(a) - The court stated that "the right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and enter­tain the religious beliefs of one's choice, the right to declare one's religious beliefs openly and the right to manifest religious belief by worship, teach­ing, dissemination and religious prac­tice ... The performance of religious rites is a fundamental aspect of religious practice." - Absent exceptional circumstances, which the court could not foresee, such a viol­a­tion of s. 2(a) could not be justified under s. 1 of the Charter - See paragraphs 55 to 60.

Civil Rights - Topic 5659.1

Equality and protection of the law - Par­ticular cases - Marriage - [See first Civil Rights - Topic 397].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 397].

Constitutional Law - Topic 6411

Federal jurisdiction (s. 91) - Marriage and divorce - General - Section 1 of the federal government's proposed legislation respect­ing certain aspects of legal capacity for mar­riage for civil purposes provided that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others" - The Supreme Court of Canada opined that s. 1 of the proposed Act was within the exclusive jurisdiction of Parlia­ment - In pith and substance, s. 1 pertained to the capacity to marriage - Section 91(26) of the Constitution Act, 1867, con­ferred exclusive competence in respect of capacity to marry to Parliament - The court rejected submissions that the Consti­tution Act entrenched the common law def­i­nition of "marriage" as it stood in 1867 (ie., voluntary union of one man and one woman) - Canada was a pluralistic society where marriage, from a state perspective, was a civil institution - The court rejected submissions that "(1) marriage is a pre-legal institution and thus cannot be funda­mentally modified by law; (2) even a pro­gressive interpretation of s. 91(26) cannot ac­commodate same-sex marriage since it falls outside the 'natural limits' of that head of power, a corollary to this point being the objection that s. 15 of the Char­ter is being used to 'amend' s. 91(26); and (3) in this instance, the intention of the framers of our Constitution should be de­ter­minative" - Section 91(26), read expan­sively, did not exclude same-sex marriage -Incidental effects of federal legislation on the provincial sphere were permissible where they did not relate, in pith and sub­stance, to a provincial head of power - See paragraphs 13 to 34.

Constitutional Law - Topic 7341

Provincial jurisdiction (s. 92) - Solemniz­ation of marriage (s. 92(12)) - General - Sec­tion 2 of proposed federal legislation respecting certain aspects of legal capacity for marriage for civil purposes provided that "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 Supreme Court of Canada opined that "only the provinces may legislate exemp­tions to existing solemnization require­ments, as any such exemption necessarily relates to the solemnization of marriage under s. 92(12). Section 2 of the Proposed Act is therefore ultra vires Parliament." - See paragraphs 35 to 39.

Courts - Topic 3044

Supreme Court of Canada - Jurisdiction - General - References - Section 53(1) of the Supreme Court Act provided, in part, that "the Governor in Council may refer to the court for hearing and consideration import­ant questions of law or fact concerning (a) the interpretation of the Constitution Acts; ... (d) the powers of the Parliament of Can­ada, or of the legislatures of the prov­inces, or of the respective governments thereof, whether or not the particular power in ques­tion has been or is proposed to be ex­ercised" - The Supreme Court of Canada stated that "the court has recog­nized that it possesses a residual discretion not to an­swer reference questions where it would be inappropriate to do so because, for ex­ample, the question lacks sufficient legal content, or where the nature of the ques­tion or the information provided does not permit the court to give a complete or ac­curate answer" - See paragraph 10.

Courts - Topic 3044

Supreme Court of Canada - Jurisdiction - General - References - A reference to the Supreme Court under s. 53(1) of the Su­preme Court Act asked whether 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, was consistent with the Charter - The Supreme Court of Canada stated that it was inappropriate and unwise to answer this question - Given the federal govern­ment's intention to implement the legisla­tion involved regardless of the court's opinion, an opinion on the constitutionality of an opposite-sex requirement for mar­riage served no legal purpose - Further, answering the question might have dele­terious effects - The court stated, inter alia, that "the parties to previous litigation [provincial decisions where opposite-sex requirement found unconstitutional] have relied upon the finality of their judgments [not appealed to Supreme Court] and have acquired rights which in our view are en­titled to protection. Finally, an answer to [the question] would not only fail to ensure uniformity of the law, but might under­mine it. These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, convince the court that it should exercise its discretion not to answer [the question]" - See para­graphs 61 to 71.

Cases Noticed:

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 10].

Reference Re Canada Assistance Plan (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Quebec Constitution Amendment Refer­ence (No. 2), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 10].

Reference Re Objection by Quebec to a Resolution to Amend the Constitution - see Quebec Constitution Amendment Refer­ence (No. 2).

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 10].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 13].

Marriage Laws, Re (1912), 46 S.C.R. 132, refd to. [para. 18].

Teagle v. Teagle, [1952] 3 D.L.R. 843 (B.C.S.C.), refd to. [para. 18].

Hellens v. Densmore, [1957] S.C.R. 768, refd to. [para. 18].

Hyde v. Hyde (1866), L.R. 1 P. & D. 130, refd to. [para. 21].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 22].

Toronto (City) v. Bell Telephone Co. of Canada, [1905] A.C. 52 (P.C.), refd to. [para. 23].

Proprietary Articles Trade Association v. Canada (Attorney General), [1931] A.C. 310 (P.C.), refd to. [para. 23].

R. v. Blais (E.L.J.), [2003] 2 S.C.R. 236; 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3; 2003 SCC 44, dist. [para. 30].

Saskatchewan (Attorney General) v. Canada (Attorney General), [1949] 2 D.L.R. 145 (P.C.), refd to. [para. 32].

Ontario (Attorney General) v. Canada (Attorney General), [1912] A.C. 571 (P.C.), refd to. [para. 34].

Canada (Attorney General) v. Ontario (Attorney General), [1937] A.C. 326 (P.C.), refd to. [para. 34].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 40].

EGALE Canada Inc. et al. v. Canada (At­torney General) et al. (2003), 182 B.C.A.C. 35; 300 W.A.C. 35; 225 D.L.R.(4th) 472; 2003 BCCA 251, refd to. [para. 41].

Halpern et al. v. Canada (Attorney Gen­eral) et al. (2003), 172 O.A.C. 276; 65 O.R.(3d) 161 (C.A.), refd to. [para. 41].

Hendricks v. Québec (Procureur général), [2002] R.J.Q. 2506 (Sup. Ct.), refd to. [para. 41].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 45].

Trinity Western University et al. v. Col­lege of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 50].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 50].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 50].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 51].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 63].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 63].

Reference Re the British North America Act and the Federal Senate, [1980] 1 S.C.R. 54; 30 N.R. 271, refd to. [para. 63].

Reference Re Authority of Parliament in relation to the Upper House - see Refer­ence Re the British North America Act and the Federal Senate.

Dunbar and Edge v. Yukon Territory et al., [2004] Yukon Cases (SC) 54; 2004 YKSC 54, refd to. [para. 66].

Vogel v. Canada (Attorney General), [2004] M.J. No. 418 (Q.B.), refd to. [para. 66].

Boutilier v. Nova Scotia (Attorney Gen­eral), [2004] N.S.J. No. 357 (S.C.), refd to. [para. 66].

N.W. et al. v. Canada (Attorney General) (2004), 255 Sask.R. 298; 2004 SKQB 434, refd to. [para. 66].

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 67].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Reference Re Truscott, [1967] S.C.R. 309, refd to. [para. 68].

Reference Re R. v. Coffin, [1956] S.C.R. 191, refd to. [para. 68].

Reference Re Minimum Wage Act (Sask.), [1948] S.C.R. 248, refd to. [para. 68].

Reference Re Milgaard, [1992] 1 S.C.R. 866; 135 N.R. 81; 100 Sask.R. 183; 18 W.A.C. 183, refd to. [para. 68].

Newfoundland Reference Re Continental Shelf (1984), [1984] 1 S.C.R. 86; 51 N.R. 362, dist. [para. 68].

Statutes Noticed:

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 53(1) [para. 9].

Counsel:

Peter W. Hogg, Q.C., and Michael H. Morris, for the Attorney General of Canada;

Alain Gingras, for the intervenor, the Attorney General of Quebec;

Robert W. Leurer, Q.C., Margaret Un­sworth and Christy J. Stockdale, for the intervenor, the Attorney General of Alberta;

Leslie A. Reaume, for the intervenor, the Canadian Human Rights Commission;

Cathy S. Pike and Amyn Hadibhai, for the intervenor, the Ontario Human Rights Commission;

Aaron L. Berg, for the intervenor, the Manitoba Human Rights Commission;

Andrew K. Lokan and Odette Soriano, for the intervenor, the Canadian Civil Lib­erties Association;

Elliott M. Myers, Q.C., and Rebecca Smyth, for the intervenor, the British Columbia Civil Liberties Association;

James L. Lebo, Q.C., for the intervenor, the Canadian Bar Association;

William J. Sammon, Kellie Siegner and Peter D. Lauwers, for the intervenors, the Canadian Conference of Catholic Bishops and the Ontario Conference of Catholic Bishops;

Barry W. Bussey, for the intervenor, the Seventh-Day Adventist Church in Can­ada;

John O'Sullivan, for the intervenor, the United Church of Canada;

Kenneth W. Smith and Robert J. Hughes, for the intervenor, the Canadian Unitar­ian Council;

Mark R. Frederick and Peter D. Lauwers, for the intervenor, the Church of Jesus Christ of Latter-Day Saints;

R. Douglas Elliott, Trent Morris and Jason J. Tan, for the intervenor, the Metropoli­tan Community Church of Toronto;

Cynthia Petersen, Joseph J. Arvay, Q.C., Vanessa Payne and Kathleen A. Lahey, for the intervenors, Egale Canada Inc., Egale Couples (Melinda Roy, Tanya Cham­bers, David Shortt, Shane Mc­Closkey, Lloyd Thornhill, Robert Pea­cock, Robin Roberts, Diana Denny, Wendy Young and Mary Teresa Healy) and B.C. Couples (Dawn Barbeau, Eliza­beth Barbeau, Peter Cook, Murray War­ren, Jane Eaton Hamilton and Joy Masu­hara);

Martha A. McCarthy and Joanna Radbord, for the intervenors, the Ontario Couples (Hedy Halpern, Colleen Rogers, Michael Leshner, Michael Stark, Aloysius Pitt­man, Thomas Allworth, Dawn Onishen­ko, Julie Erbland, Carolyn Rowe, Carolyn Moffat, Barbara McDowell, Gail Donnelly, Alison Kemper and Joyce Barnet), and the Quebec Couple (Michael Hendricks and René LeBoeuf);

D. Geoffrey Cowper, Q.C., for the intervenor, the Working Group on Civil Unions;

David M. Brown, for the intervenor, the Association for Marriage and the Family in Ontario;

Ed Morgan and Lawrence Thacker, for the intervenor, the Canadian Coalition of Liberal Rabbis for same-sex marriage and Rabbi Debra Landsberg, as its nomi­nee;

Linda M. Plumpton and Kathleen E.L. Riggs, for the intervenor, the Foundation for Equal Families;

Luc Alarie, for the intervenor, Mouvement laïque québécois;

Noël Saint-Pierre, for the intervenor, Co­alition pour le mariage civil des couples de même sexe;

Peter R. Jervis and Bradley W. Miller, for the intervenors, the Islamic Society of North America, the Catholic Civil Rights League and the Evangelical Fellowship of Canada, collectively the Interfaith Co­a­lition on Marriage and Family;

Gerald D. Chipeur, Dale William Fedor­chuk and Ivan Bernardo, for the inter­ven­ors, the Honourable Anne Cools, Mem­ber of the Senate, and Roger Galla­way, Member of the House of Commons.

Solicitors of Record:

Deputy Attorney General of Canada, Tor­on­to, Ontario, for the Attorney Gen­eral of Canada;

Department of Justice, Ste-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

MacPherson, Leslie & Tyerman, Regina, Saskatchewan, for the intervenor, the Attorney General of Alberta;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervenor, the Canadian Human Rights Commission;

Ontario Human Rights Commission, Toronto, Ontario, for the intervenor, the Ontario Human Rights Commission;

Manitoba Human Rights Commission, Win­nipeg, Manitoba, for the intervenor, the Manitoba Human Rights Commis­sion;

Paliare Roland Rosenberg Rothstein, Tor­onto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Bull, Housser & Tupper, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;

McLennan Ross, Calgary, Alberta, for the intervenor, the Canadian Bar Association;

Barnes, Sammon, Ottawa, Ontario, for the intervenor, the Canadian Conference of Catholic Bishops;

Miller Thomson, Markham, Ontario, for the intervenor, the Ontario Conference of Catholic Bishops;

Barry W. Bussey, Oshawa, Ontario, for the intervenor, the Seventh-Day Adventist Church in Canada;

WeirFoulds, Toronto, Ontario, for the intervenor, United Church of Canada;

Smith & Hughes, Vancouver, B.C., for the intervenor, the Canadian Unitarian Coun­cil;

Miller, Thomson, Toronto, Ontario, for the intervenor, the Church of Jesus Christ of Latter-Day Saints;

Roy Elliott Kim O'Connor, Toronto, On­tario, for the intervenor, the Metro­politan Community Church of Toronto;

Sack Goldblatt Mitchell, Toronto, Ontario; Arvay Finlay, Victoria, B.C., for the intervenors, Egale Canada Inc. and Egale Couples;

Kathleen A. Lahey, Kingston, Ontario, for the intervenors, the B.C. Couples;

Epstein, Cole, Toronto, Ontario, for the intervenors, the Ontario Couples and the Quebec Couple;

Fasken Martineau DuMoulin, Vancouver, B.C., for the intervenor, the Working Group on Civil Unions;

Stikeman Elliott, Toronto, Ontario, for the intervenor, the Association for Marriage and the Family in Ontario;

Ed Morgan, Toronto, Ontario, for the in­ter­venor, the Canadian Coalition of Lib­eral Rabbis for same-sex marriage;

Torys, Toronto, Ontario, for the intervenor, the Foundation for Equal Families;

Alarie, Legault, Beauchemin, Paquin, Jobin, Brisson & Philpot: Montréal, Quebec, for the intervenor, Mouvement laïque québécois;

Saint-Pierre, Grenier, Montréal, Quebec, for the intervenor, Coalition pour le mariage civil des couples de même sexe;

Lerners, Toronto, Ontario, for the inter­venor, the Interfaith Coalition on Mar­riage and Family;

Chipeur Advocates, Calgary, Alberta, for the intervenors, the Honourable Anne Cools, Member of the Senate, and Roger Gallaway, Member of the House of Commons.

This reference was heard on October 6-7, 2004, before McLachlin, C.J.C., Major, Bas­tarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On December 9, 2004, the following opin­ion was released by the Court in both offi­cial languages.