The history of marriage.

• Author: Mah, Connie L.
• Position: SPECIAL REPORT on Marriage

The definition of marriage, as a legal and social institution, has recently dominated the headlines of the Canadian media and has posed many questions. This recent debate sprang from a series of Court of Appeal decisions from several Canadian provinces dealing with the issue of the validity of same-sex marriages.

British Columbia

On May 1, 2003, the British Columbia Court of Appeal issued its judgment in EGALE Canada Inc. v. Canada (Attorney General), granting the appeal of the lower court's rejection of an application for a declaration that same-sex couples were entitled to marriage licences. The lower court's decision was based on the common law bar to same-sex marriages and on the legal definition of marriage under section 91 (26) of the Constitution Act, 1867, as being fixed and thereby requiring a constitutional amendment. Although the British Columbia Court of Appeal agreed there was a common law bar to same-sex marriages based on the common law definition of marriage as the voluntary union for life of one man and one woman, it found that the lower court erred in concluding that the legal definition of marriage was fixed. This definition was subject to a Charter analysis. The Court concluded that the common law definition of marriage violated the right to equality under section 15 of the Canadian Charter of Rights and Freedoms, 1982 (the Charter) and could not be justified because it was not constitutionally entrenched and procreation was no longer the essential objective of marriage. It further declared the common law bar to same-sex marriages was of no force and effect and redefined the common law definition of marriage to be the lawful union of two persons. This declaration was suspended until July 12, 2004 to give the Canadian Parliament time to review and revise the relevant legislation.

Ontario

The BC case was quickly followed by a judgment released on June 10, 2003 by the Ontario Court of Appeal in Halpern et al. v. Canada (Attorney General) et al., also concluding the common law definition of marriage (the voluntary union for life of one man and one woman to the exclusion of all others) contravened section 15 (1) of the Charter by creating a formal distinction between opposite-sex and same-sex couples based on sexual orientation which violated same-sex couples' dignity by perpetuating the view that same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships. The Court noted that equality rights guaranteed by section 15(1) of the Charter extended beyond economic benefits and included protection against exclusion from fundamental societal institutions such as marriage. The Court further noted that procreation and child-rearing does not require the exclusion of same-sex couples from...