''Reference Re Same-Sex Marriage'' 0043 S.C.R. 698, 2004 SCC 79, was a

reference question In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question conc ...

to the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

regarding the

constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these prin ...

validity of

same-sex marriage in Canada Same-sex marriage in Canada was progressively introduced in several provinces by court decisions beginning in 2003 before being legally recognized nationwide with the enactment of the ''Civil Marriage Act'' on July 20, 2005. On June 10, 2003, th ...

. The ruling was announced December 2004, following arguments made two months prior.

Background

Prior to this case the issue regarding the constitutional validity of same-sex marriage had been considered by several of the provinces' appellate courts, all of them holding that it was constitutionally valid. In response to this, the

Government of Canada The government of Canada (french: gouvernement du Canada) is the body responsible for the federal administration of Canada. A constitutional monarchy, the Crown is the corporation sole, assuming distinct roles: the executive, as the ''Crown-i ...

submitted three questions to the Supreme Court regarding the validity of the proposed same-sex marriage legislation (the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes): :1. Is the proposal for the Act within the authority of Parliament? If not, to what extent? :2. If so, is section 1 of the proposed Act consistent with the

Charter A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified. It is implicit that the granter retains superiority (or sovereignty), and that the re ...

? If not, to what extent? :3. Does section 2(a) of the Charter, guaranteeing

freedom of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedo ...

, protect religious officials who do not believe in same-sex marriage? Later, an additional question was added:
:4. Is the opposite-sex requirement established in the common law and Quebec law consistent with the Charter? If not, to what extent?

Opinion of the court

The court responded to the questions as such: :1. With respect to s. 1: Yes. With respect to s. 2: No. :2. Yes. :3. Yes. :4. The Court exercises its discretion not to answer this question. The Court began by considering the argument that the questions are not

justiciable Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...

(i.e. 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) based on it being a

political question In United States constitutional law, the political question doctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution ...

. The Court resolutely dismissed this claim for these political considerations provide the context for, rather than the substance of, the questions before the Court, as in the '' Quebec Secession Reference''. The first question required the court to determine which head of power the law falls under. It was clearly determined that the

pith and substance Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of ...

of the law was federal as it concerned marriage which is in the absolute federal jurisdiction under section 91(26) of the

Constitution Act, 1867 The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...

. The Court then considered the impact of the common law definition of marriage on the new law. The applicable definition was from Hyde v. Hyde (1866) a

polygamy Crimes Polygamy (from Late Greek (') "state of marriage to many spouses") is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny. When a woman is marr ...

case where

Lord Penzance James Plaisted Wilde, 1st Baron Penzance, (12 July 1816 – 9 December 1899) was a noted British judge and rose breeder who was also a proponent of the Baconian theory that the works usually attributed to William Shakespeare were in fact writte ...

stated:

What, then, is the nature of this institution as understood in Christendom?...If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

The Court rejected this definition by applying the

living tree doctrine In Canadian law, the living tree doctrine () is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times. Concept The livin ...

used in the famous ''

Persons case ''Edwards v Canada (AG)''also known as the ''Persons Case'' (french: l'Affaire « personne »)is a famous Canadian constitutional case that decided in 1929 that women were eligible to sit in the Senate of Canada. The legal case was put forward b ...

'', analogizing the exclusion of women from the common law definition of "persons" to that of same-sex couples. The interveners had argued that the meaning of marriage is fixed into convention beyond the reach of the constitution as its old meaning is in practice for thousands of years across the entire globe. Moreover, they argued that the living tree doctrine is constrained within the "natural limits" of interpretation and cannot be stretched to anything the court would like it to be. The Court rejected these claims, stating that they were not trying to find the definition of marriage, but were only examining whether a proposed meaning was within the definition. The meaning of marriage is not fixed to what it meant in 1867, but rather it must evolve with Canadian society which currently represents a plurality of groups. However, the Court made sure to say that the legislation was only concerning "civil marriage as a legal institution" and has no effect on religious marriage. Section 2 of the Act was considered to be ultra vires to Parliament, as it's pith and substance related to who may (or must) perform marriages and falls within the subject matter allocated to the provinces under s. 92(12). On considering the second question, the Court not only affirmed the validity of the legislation, they added that its purpose "flows from" the Charter. They further found that equality right of religious groups and opposite-sex couples are not undermined by the legislation, on the basis that the expansion of the Charter enriches society, and equality cannot be supported by denial of others from a benefit. When conflicts between rights arise, the Court said, it must be resolved by internal balancing of those rights, not denial of rights. On the third question, the Court found that the religious freedom guarantee will protect those who disagree with performing same-sex marriages and even protect those who disagree with renting religious spaces for the purpose of same-sex marriage. Again, the Court reiterated that it is up to the provinces to legislate protection for religious groups. The Court decided not to answer the fourth question as it served "no legal purpose". The federal government had already decided not to appeal the Halpren case in Ontario on the very issue and so there was no point examining it again. Also, the court wished to respect the lower-court decisions upholding same-sex marriage by letting them stand.

Implications

In terms of rights for same sex couples, a few have speculated that this case does not add much. However, by pre-litigating the following ''

Civil Marriage Act The ''Civil Marriage Act'' is a federal statute legalizing same-sex marriage across Canada. At the time it became law, same-sex marriage had already been legalized by court decisions in all Canadian jurisdictions except Alberta, Prince Edward ...

'', it effectively precluded court challenge of the act, thereby hastening its acceptance.

External links

Centre for Constitutional Studies: Reference re Same-sex Marriage (2004)
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Case summary
{{DEFAULTSORT:Same-Sex Marriage Reference Canadian freedom of religion case law Canadian LGBT rights case law Same-sex marriage in Canada Section Fifteen Charter case law Supreme Court of Canada cases 2004 in LGBT history 2004 in Canadian case law Same-sex union case law Supreme Court of Canada reference question cases

Background

Opinion of the court

Implications

See also

External links