RESOURCES ON SAME SEX MARRIAGES
CIVIL LAW
CONSIDERATIONS
In civil law,
there are legal rules about who can get married, who can perform marriages, and
the consequences of marriage.
Historically, at
common law, the courts defined “marriage” as being between one man and one
woman.[1]
Canada received this common law from England.
The common law can be amended by legislation.
The Constitution Act, 1867 provides for the division of legislative powers between the
federal Parliament and the provincial Legislatures.
* Section 91(26) grants legislative power to
the federal Parliament with respect to “Marriage and Divorce”–who is permitted
to marry or divorce and in what circumstances.[2]
* Section 91(12) grants legislative power to
the provincial Legislatures with respect to the “Solemnization of Marriage in
the Province”–the administrative steps required for a marriage to take place in
the province (marriage commissioners, registration, etc.).[3] Most provinces recognize ordained clergy as
marriage commissioners for the purpose of performing marriages and registering
them with the civil authorities. In the
absence of such a system, there would need to be a separate “civil marriage” in
front of a civil marriage commissioner, because the church ceremony would not
have any civil effect.
The Canadian Charter of Rights and Freedoms
was enacted as a constitutional amendment in 1982. Section 15 guarantees equality rights:
15(1) Every individual is equal before and under
the law and has the right to the equal protection and benefit of the law
without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The courts have
not restricted section 15 just to the “enumerated grounds”, but have applied it
to “analogous grounds”. The following
cases hold that sexual orientation is an analogous ground that comes under the
umbrella of protection in s. 15(1) of the Charter.[4]
* Section 15 of the Charter is the legal basis for the court decisions in Quebec,
B.C.,and Ontario holding that the federal Marriage
Act cannot discriminate by preventing people in same sex relationships from
being married.[5]
Section 33 of the Charter–the “notwithstanding
clause”–permits Parliament or a provincial Legislature to expressly declare
that an Act will operate notwithstanding the fact that it breaches section
15. Such a declaration has to be renewed
every 5 years. The notwithstanding
clause has been used very infrequently.
A particular level of government can only use the notwithstanding clause
with respect to something which is within its legislative competence–it cannot
use it to affect the application of legislation from the other level of
government.
The federal
Government has made the decision not to appeal the decision of the Ontario
Court of Appeal to the Supreme Court of Canada, and not to use the
notwithstanding clause to maintain the current law. Instead, it has asked the Supreme Court of
Canada for advice about the constitutionality of amendments which the federal
Government proposes to make to permit same sex marriages.
The proposed
federal legislation specifically provides that no church would be required to
perform a such a marriage. Section 2(a)
of the Canadian Charter of Rights and Freedoms
protects “freedom of conscience and religion”.[6]
Other resources:
-Discussion paper
by the federal Department of Justice entitled Marriage and Legal Recognition of Same-sex Unions, http://www.canada.justice.gc.ca/en/dept/pub/mar/
-Lahey, Kathleen Ann. Are We Persons Yet?: Law and Sexuality in Canada. Toronto: University of Toronto Press, 1999
[1]. Hyde
v. Hyde and Woodmansee (1866) L.R. 1
P. & D. 130 (H.L) at p.133 per Lord
Penzance which dealt with polygamy:
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.
See also Corbett v. Corbett [1970] 2 All E.R. 33 (Probate, Divorce and Admiralty Div.), where the court nullified a marriage involving a "transgendered" individual.
[2]. See the following federal legislation:
(a) Marriage
(Prohibited Degrees) Act, S.C. 1990, c 46.
(b) Modernization of Benefits
and Obligations Act, S.C. 2000, c. 12, s. 1.1, which amended 68 federal
statutes in order to give the same economic benefits to same sex couples yet
retained the traditional definition of marriage (one man and one woman to the
exclusion of all others).
(c) Divorce Act, R.S.C.
1985, c. 3 (2nd Supp.), s. 2(1) which defines "spouse" as
"either of a man or a woman who are married to each other".
[3]. See the following Alberta legislation:
(a) Marriage
Act, R.S.A. 2000, c. -5. Section
1(c) appears to make it apply only to marriages between a man and a woman; and
section 2 states that the provincial Act operates notwithstanding section 15 of
the Canadian Charter of Rights and
Freedoms (see below).
(b) Human
Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, ss. 1
and 4.
[4]. Egan
v. Canada [1995] 2 S.C.R. 513 at para. 175; M. v. H. [1999] 2 S.C.R. 3 at
p. 52-53; Vriend v. Alberta
[1998] 1 S.C.R. 493.