Bill C-38 – the Civil Marriage Act

Common Misconceptions

Alternate Approaches

"Extending the same benefits as marriage to same-sex couples through civil unions would be a better compromise than changing the traditional definition of marriage."

• It is no longer possible to create a civil union system within Canada's constitutional and legal framework unless the notwithstanding clause is used. Even then, our federal structure makes it virtually impossible to ensure equal treatment as civil unions are within provincial and territorial jurisdiction and so thirteen civil union schemes could have differences that would lead to legal confusion, and not equality.
• There is no middle ground here – either same-sex couples can marry civilly or they cannot. The law has already been changed in eight provinces and territories to extend equal access to civil marriage to same-sex couples. To return to limiting marriage to opposite-sex couples would require using the notwithstanding clause to overturn these decisions.
• The courts have clearly indicated that any institution other than civil marriage, such as civil union, is less than equal. Only equal access to civil marriage will fully comply with Charter equality guarantees. Leaving this to the provinces and territories to resolve could cause a patchwork of 13 different civil union schemes. Only Parliament has the ability to look at the complete picture in designing a Canada-wide approach.
• The Government Bill is the only true compromise that is consistent with the rule of law and the Constitution – opening civil marriage to provide real equality, and at the same time respecting religious freedom – both for those religious groups opposed to same-sex marriage and equally for those that support it.

The Notwithstanding Clause

"Parliament could pass legislation enacting the opposite-sex requirement for marriage without using the notwithstanding clause, because the Supreme Court of Canada did not rule out the constitutionality of the opposite-sex requirement of marriage, but returned it to Parliament to decide."

• The Court did not say that whatever Parliament might decide would be constitutional. It said that since the Government was already taking the step of extending civil marriage to gays and lesbians, it was unnecessary for it to pronounce further on the matter.
• The law has already changed across the country. The Supreme Court's decision in the marriage Reference did not overturn the decisions of courts in eight provinces and territories finding opposite-sex marriage unconstitutional. These binding decisions stand.
• As a result, the only way to put the opposite-sex definition of marriage – which no longer exists legally in those eight provinces and territories – back into the law, would be to overrule those decisions, which would require the use of the notwithstanding clause.
• That clause enables governments to expressly declare that an Act of Parliament shall operate notwithstanding that it violates one or more of the fundamental rights and freedoms set out in the Charter.

  "Parliament does not have to use the notwithstanding clause to preserve the traditional definition of marriage because only lower court decisions have changed marriage."

• The Supreme Court is not the only court in the country that governments are bound to respect under the rule of law.
• Courts across the country have declared that restricting civil marriage to opposite-sex couples is unconstitutional. Those decisions do not have to be appealed. They stand, in the absence of a Supreme Court of Canada decision overruling them.
• Governments can legislate to overrule an ordinary court decision. But where a law has been found to be unconstitutional, the only way to legislate to overrule that court decision is by invoking the notwithstanding clause to publicly state that the Government will pass the law, regardless of the fact that it violates a Charter right or freedom.
• The Prime Minister has stated that he will not use the notwithstanding clause in this circumstance to deny rights guaranteed by the Charter to a minority. If one minority can be deliberately discriminated against, then others are potentially at risk.
• The Government of Canada can either uphold the Charter because we believe in its values, or we can abandon the Charter. This Government will uphold the Charter.

Court Decisions

"The lower court decisions only dealt with the common law definition of marriage and not federal legislation, and so if the Supreme Court were asked to rule on a new legislative definition, they would honour such a decision by Parliament."

• This is untrue. The courts in Québec did not simply look at the common law definition of marriage. They considered federal legislation setting out the opposite-sex definition of marriage for the purposes of Québec, and ruled that that legislation was discriminatory.
• Individuals are welcome to speculate on what the Supreme Court might have done, but they are not free to mislead Canadians on the law. The reality is that Parliament's legislation has already been found to be unconstitutional.

"The Supreme Court of Canada ruled on marriage in the Egan decision, and this remains the only commentary on the fundamental definition of marriage in any Supreme Court decision."

• The question of marriage was not even before the Supreme Court in the Egan decision. The case dealt with whether the definition of "spouse" in the Old Age Security Act was unconstitutional in not including common-law same-sex partners.
• It is only the recent marriage Reference decision of the Supreme Court of Canada that is a commentary on the fundamental definition of marriage in Canadian law. In that decision, a unanimous Court held that the goal of extending civil marriage to include same-sex couples "flows from" the Charter.

Equality

"Same-sex marriage is not a human right, or other countries that do not permit same-sex marriage would be human rights violators."

• Courts across Canada have ruled that equal access to civil marriage by same-sex couples is an issue of equality rights under the Canadian Charter of Rights and Freedoms.
• In legal terms, the Charter deals with human rights – the basic rights that Canadians believe should be available to all – including the right to equality.
• Although there is no right to marriage for anyone, there is a right to equality and therefore equal access to civil marriage. The courts have explained that the essence of equality is ensuring the human dignity of all Canadians.
• Comparisons to other countries are interesting, but each country must make its own decisions, in accordance with its own values.

  "The onus is on those who want to change the fundamental institution of marriage to prove that it is absolutely necessary."

• If the onus were on those excluded to prove that their equality is "absolutely necessary", what would have happened in our past? Would women have been able to prove that they absolutely needed to vote? Would Sikhs have been able to prove that they absolutely needed to be part of the RCMP? This standard is simply wrong.
• This Government is not changing the fundamental institution of marriage, but preserving it and now allowing same-sex couples seeking the same degree of commitment in the civil law but who were previously excluded, to equally undertake the same fundamental vows of mutual love and commitment.

  "The Liberal Government has changed its views since it voted in support of the 1999 motion on the opposite-sex requirement of marriage."

• The June 1999 Opposition Motion was passed by the House of Commons before the decisions of three courts of appeal, and of courts in four other provinces and one territory, finding the opposite-sex requirement for marriage to be contrary to the Canadian Charter of Rights and Freedoms. A similar Opposition Motion was debated and defeated in September of 2003.
• Since 1999, our understanding of equality and its role in our society has evolved and the law has changed to reflect this. The decisions of courts of appeal in three provinces (British Columbia, Ontario and Quebec) found that exclusion from civil marriage – a fundamental societal institution – perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships.
• Under the Constitution, Parliament and the courts have complementary roles. It is now up to Parliament to review its approach and take a leadership role on this issue in light of these decisions. The approach being taken demonstrates a clear leadership stand on the issue and respects the role of both the courts and the people of Canada, through their representatives in Parliament.

  "Those who disagree with the legislation are labelled homophobic or bigoted. As a result, religious groups and New Canadians who are opposed will be branded as human rights violators."

• This Government is committed to a full and open debate on this issue, in keeping with the democratic process.
• This Government has full confidence in the Canadian Charter of Rights and Freedoms and in the ability of Canadians to make decisions on this issue that are consistent with the rule of law and with our values, including our belief in tolerance and respect for the differences among us.
• Religious groups and New Canadians know, as do all Canadians, that the Charter protects all minorities, and that Canada is a land of minorities.
• Same-sex marriage is already the law in eight provinces and territories – without threatening the cultural or religious values of those who do not agree.
• Allowing equal access to civil marriage while protecting religious freedom will mean that marriage changes only for those who choose to embrace that change. Refusing to provide equal access would impose the values of those who oppose by taking away choice from those religious and other groups who wish to support civil marriage for same-sex couples.

  "The Government should not be changing marriage, because the majority of Canadians do not want it changed."

• The Government of Canada believes that the principle of democracy is not just to reflect the will of the majority, but also to ensure the protection of other constitutional guarantees, such as the protection of minorities.
• In our democratic and pluralistic society, the Government has a duty to ensure that marriage laws serve all Canadians equally and without discrimination, including that marriage is available civilly where couples do not wish to or cannot marry religiously.
• The Government has a responsibility to the future of Canada that is also based on the strength of our minority communities and their ability to fully participate in and contribute to all aspects of Canadian life – particularly those central social institutions we find of most importance in our own lives.

Religious Freedom

"The bill does not go far enough in protecting religious freedom."

• Most of the specific examples often cited are misleading.
• Rental of halls, for example, is not a new issue with this bill, but is about protection for individuals from discrimination. Provincial human rights codes have prohibited discrimination in services made available to the general public, such as hall rentals, since their inception, and added sexual orientation as a prohibited ground of sexual orientation starting in 1976.
• In terms of religious schools, earlier Supreme Court cases have upheld the right of religious institutions to fire teachers who do not observe their religious tenets (Caldwell) and upheld the right of religious schools to train future teachers in conformity with their religious values (Trinity Western).
• And neither Parliament nor the Government of Canada would have any jurisdiction to interfere in the internal workings of a religious group, such as discipline for errant priests.
• If more specific protections are desired in terms of civic marriage officials, commercial provision of services, rentals, etc., they would have to be added in provincial and territorial laws.
• The Minister of Justice has raised this issue with his provincial and territorial colleagues, and encouraged them to ensure that religious freedom is protected in all their laws, as the federal Government is doing.
• Many provinces and territories already have amended their laws to add specific protections for religious freedom – e.g. Quebec has specific protection for religious officials who refuse to marry a couple, Ontario has recently passed a new Bill extending further protections, and others provide some form of exemption for religious organizations from meeting all of the obligations of their human rights codes.

  "The Bill does not fully protect religious freedom within federal authority – for example, charitable status."

• The Supreme Court has already confirmed that religious freedom is already fully protected within all areas of federal jurisdiction – by the Charter.
• Any further specific protections within federal jurisdiction are unnecessary, as the Government cannot and has not legislated in a way that offends religious freedom – not concerning charitable status, and not any other federal statute.
• Government action – including decisions on federal funding and the interpretation and application of federal statutes – is subject to the Charter guarantees.

  "Wherever courts and tribunals are faced with "a clash" between equality rights and religious rights, equality rights will trump religious rights."

• This is not true. Where the Charter has been applied to determine the balance between equality rights and religious freedom, the Supreme Court has consistently indicated that both should be reconciled and respected, and that neither should take precedence over the other.
• In recent cases involving both equality and religious freedom, religious freedom has been protected (e.g. Trinity Western).
• The Supreme Court of Canada added in their recent decision in the marriage Reference that provincial human rights codes should also be interpreted to protect religious freedom.
• Where a provincial human rights tribunal order may not appropriately respect freedom of religion, the Charter can be used successfully to challenge that order (e.g. Brockie – the printer case, where the court on judicial review amended the Tribunal's order to protect religious freedom).

 Respect for fundamental rights and freedoms

"The Bill will result in our society being one that abandons tradition in favour of political correctness, and a self-selected group of lawyers or experts will define the parameters of right and wrong."

• This Bill will result in our society remaining one which respects our Charter and our Constitution.
• We will respect the long-standing basic social institution of marriage by extending equal access to civil marriage for those same-sex couples seeking the same degree of commitment, while preserving the right of religious institutions to make their own decisions about marriage.
• We will do so not out of political correctness, but out of respect for the fundamental rights and freedoms of all Canadians.
• This Government has already reiterated our clear commitment to upholding freedom of religion. But religious freedom is not threatened here. The Supreme Court has clearly indicated that religious freedom is already protected by the Charter.
• Parliament will make the final decisions here – not by ignoring the rule of law and the Constitution, or deciding that it applies to protect only some groups and not others – but on the basis of legal advice from the highest court in the land.

  "Changes to marriage will lead to the destruction of Canada's social fabric."

• This is simply not true. Civil marriage is not absolute and has been changed many times over Canada's history to extend to groups previously excluded.
• Earlier changes to allow divorced individuals to remarry, or to allow first cousins to marry, did not affect religious practice and neither will these. Religious groups will retain the full ability to make their own decisions about whether to recognize these legal changes, in the same way that they already have with earlier changes to civil laws on marriage and divorce.

  "If this were a truly free vote, this bill would fail."

• The Government is strongly committed to this legislation. Cabinet will vote for it and we will urge all Members of Parliament to carefully consider the merits of voting to uphold equality – what the Supreme Court of Canada has told us is a fundamental Charter right.
• The bottom line is that Members can vote as they choose, but the Government has a view, and it will advocate that view vigorously. The Government will uphold the Canadian Charter of Rights and Freedoms – both the right of all individuals to equality, and the fundamental freedom of religion.