On December 9, 2004, the Supreme Court of Canada gave the green light to same sex marriage, holding that it is consistent with the equality guarantees of the Charter of Rights to extend same sex marriage to queers, and consistent with the protection of freedom of religion in the Charter to uphold the right of clergy opposed to same sex marriage from having to perform the cerremony.
Ironically the Court’s momentous decision came downn on the twelfth anniversary of the December 19 Coalition, B.C.’s most active gay rights group over the last decade.
The decision was a response to the ‘reference’ to the Court by the federal government. Though the federal government had not appealed any of the appeal court rulings in B.C., Ontario and Quebec , and lower court rulings in several other provinces, it made the ‘reference’ ostensibly to get the Court’s views on the status of same sex marriage under the Charter. Cynics decried the government move at the time as a transparent tactic to delay the vote on same sex marriage in Parliament till after last June’s federal election. In light of the treatment of same sex marriage in the US presidential election, however, where serveral states enacted constitutional amendments to ensure that same sex partners will never be able to marry, Martin’s delay tactic looks like a prudent move.
In court the federal government had said that it intended to enact same sex marriage regardless of the Court’s decision.
Though the government in its reference had asked the court to express an opinion about the constitutionality of its proposed same sex marriage bill, the court declined to do so, leaving that question in the hands of Parliament. Observers commented on the Court’s positioning in the same sex marriage debate: it performed its duty as constitutional opinion-provider, and did so unanimously, while avoiding the charge that the issue is driven by a liberal judiciary, by sending the matter back to Parliament for legislation.
There is no doubt that the federal Liberals’ bill will pass in Parliament, with the support of the NDP and the Bloc Quebecois. A private member’s bill in Parliament to limit marriage to a man and a woman was derailed in November when 700,000 Canadians sent emails in protest.
Because lesbians and gay men have brought legal challenges in each jurisdiction, it is currently legal to marry in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, and the Yukon.
The federal government told the Supreme Court of Canada that it is planning to introduce legislation giving same sex couples the right to marry. But that is not the end of the matter Jurisdiction over marriage is divided between the federal and provincial governments under the Constitution. Provinces have the right to govern ‘solemnization of marriage’. Alberta has already enacted legislation prohibiting same sex ceremonies. Such restrictions are likely to fail a legal challenge, however, because the legislation intrudes into the federal sphere of ‘capacity to marry’.
‘Family values’ was an explicit theme of the recent American presidential elections. And in a move deliberately timed to bring out conservative voters, eleven states held referenda to amend their constitutions to prohibit same sex marriage at the same time as the presidential election.
Said one queer activist, ‘It is the first time since Nazi Germany that a western government has legislated away the civil rights of a group of its citizens.’
The conseuqences for American queers of being denied same sex marriage rights is in most states much more severe than the same denial in Canada. Most American jurisidictions have no equivalent of the Canadian status of ‘living common law’, where after one, two, or three years, depending on the jurisidiction, a couple living together acquires rights and responsibilities as a cohabiting couple regardless of their own intentions in the matter. It is in this way that Canadian queers have been able to successfully argue for same sex ‘spousal benefits’, because even without marriage our status is the same as that of opposite sex common law couples. With no such comparable status in the US, queers there who are denied marriage are also denied the right to participate in their partner’s medical care, to obtain any state or federal pension or other spousal benefits, and, unless they have adopted a child of their partner, to have any access, custody, or maintenance rights if they break up with their partner.
Our office has had a flood of email inquiries from lesbians and gay men wanting to immigrate to Canada to escape the homophobic climate in the U.S.
Canadian immigration law permits a person who qualifies to come to Canada (as a skilled worker, investor, entrepreneur or self-employed person) to bring their common law or conjugal spouse with them. A ‘common law spouse’ is someone with whom one has cohabited for at least one year; a ‘conjugal spouse’ is someone you have been in a relationship with, but have been unable to cohabit - eg because neither your country nor your partner’s country permits same sex immigration.
There are still discriminatory features of Canadian immigration laws, because the law does not recognize a same sex marriage unless one of the participants is Canadian or the marriage is valid in the applicant’s country of origin. The same restrictions do not apply to heterosexual marriages.
At the General Synod [national meeting] of the Anglican Church the issue of blessing same sex marriages was a contentious one. Two years ago, the synod of the Vancouver-based diocese of New Westminster voted to allow such ceremonies, a move which caused the ‘secession’ of some parishes from the diocese and a major international controversy, with Anglican primates from African furiously opposed to the development.
The General Synod voted on a motion to make the blessing of same sex unions a ‘local matter’. That would have preserved the current regime where some bishops permit same sex blessings and others do not. But the vote failed, and the issue was remitted for three years for further study, including a study of the question of whether same sex marriage is a ‘doctrinal’ issue requiring a 2/3 vote or a matter requiring only a simple majority.
Canada is the third country, after Belgium and Holland, to permit same sex marriage.
For more information about same sex marriage, go to
To find out about how to get married in B.C., see "Tying the Knot" on the the OutLaw link at this site. To learn what marriage is, and is not, see "To Wed or Not to Wed" on the OutLaw link at this site.
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