Backgrounder Decision of the Supreme Court of Canada on the Marriage Reference Supreme Court of Canada Decision The Supreme Court ruled today that the thrust of the Government's proposed legislation is constitutional. In making this decision, the Court has clearly indicated that access to civil marriage is a matter of fundamental equality. While the Court expressed concern about the provision in the Government's proposed legislation concerning religious freedom, the Court was equally clear that freedom of religion is also a fundamental right already protected by the Constitution and the Charter, and that religious institutions - churches and synagogues, mosques and temples, are not obliged to perform marriage ceremonies that are contrary to their beliefs. The decision of the Supreme Court of Canada confirms that the approach of the Government of Canada fully respects both Charter rights - equality and freedom of religion. Now that the Court's decision has brought clarity to this issue, the government will respond quickly and decisively to introduce a bill which will respect and defend the Charter rights of all Canadians. The Government's bill will fully respect both fundamental Charter rights - equality and freedom of religion. The bill will extend the right to marry to same-sex couples and at the same time the Government will work with the provinces and territories to ask for their help in making specific amendments to further ensure that no religious officials or groups could be forced to perform marriages that are contrary to their beliefs. The bill will be introduced in the House of Commons as soon as possible when the House resumes in late January, debated through the legislative process and put to a free vote. Parliament will make the final decision about this bill which extends civil marriage to same-sex couples. The Government of Canada believes strongly in the importance of the democratic role of Parliament. However, before Parliament considers the Government's proposed approach, it was important to ensure that it had the benefit of the advice of the highest court in the land on the legal framework within which decisions must now be made. History On June 17, 2003, the Government of Canada announced that it would not appeal the decisions of the courts of appeal in British Columbia and Ontario on the definition of marriage, but would instead draft a bill extending access to civil marriage to same-sex couples while also affirming the freedom of religious belief, and refer that bill to the Supreme Court of Canada to ensure its constitutionality. On July 17, 2003, the Government referred the draft bill to the Supreme Court of Canada. The Reference asked three questions concerning the draft bill: Is the draft bill within the exclusive legislative authority of the Parliament of Canada? Does the draft bill conform to the Canadian Charter of Rights and Freedoms? Does the Charter protect religious officials from performing marriages between two persons of the same sex if it is contrary to their religious beliefs? On January 28, 2004, the Minister of Justice announced that the Government had filed a new question with the Supreme Court of Canada, asking whether the opposite-sex requirement for marriage was constitutional. On October 6 and 7, 2004, the Supreme Court heard arguments from the Government of Canada and 28 interveners. Wording of the draft bill referred to the Supreme Court Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex; AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 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. Consequential amendments will be added in the bill that is introduced in Parliament.* * Consequential amendments are changes to other federal statutes that will have to be made as a result of new legislation.
