Media Room

Same-Sex Marriage

The Supreme Court of Canada's Opinion in the Reference re Same-Sex Marriage

On December 9, 2004, the Supreme Court of Canada rendered its opinion that proposed legislation extending marriage to same-sex couples is consistent with the Canadian Charter of Rights and Freedoms and flows from the rights guaranteed under Section 15(1) of the Charter.

As an intervener at Supreme Court hearings into the matter, the Canadian Human Rights Commission played an important role in assisting the Court to develop its opinion. The Commission's position was that same-sex marriage is a constitutional imperative, and that no alternative to marriage would be consistent with the Charter.

The Court confirmed that the definition of marriage is within the exclusive jurisdiction of Parliament. The provinces retain responsibility for licensing and registration, and must give all couples access to the administrative aspects of marriage.

The Court determined that the language in the proposed federal legislation which purported to protect religious officials from having to conduct same-sex marriages was a provincial matter. The Commission had suggested the language was unnecessary since Charter provisions on freedom of religion already protect religious officials. The Court met the Commission's request for clarity by calling the "performance of religious rites" a fundamental part of religious practice. Religious officials conducting civil marriages with religious implications are already clearly protected under the Charter.

The Court offered no opinion on protecting religious officials conducting purely civil marriages, or balancing civil officials' rights in the administrative aspects of licensing, registration and civil marriage services with the rights of same-sex couples to receive those services. The Commission had suggested the Court avoid speculating on hypothetical questions concerning same-sex marriages. The Court agreed that future "conflict of rights" cases would have to be decided individually, and that decisions should stem from principles developed in the statutory human rights context as well as in the Charter.

The Commission's work before the Supreme Court was the culmination of a strong team effort and reflects the expertise and commitment of many people who have worked on various aspects of this issue for a number of years.