Canada’s Justice Minister Wants to Change the Constitutional Meaning of Marriage

Joe Woodard September/October 2004

On June 10, 2003, Chief Justice Roy McMurtry, of the Court of Appeal of Ontario, issued a judgment ordering the government of Canada to recognize that the word "marriage" in Canada's Constitution must include both heterosexual and homosexual couples. In response, Canada's justice minister, Martin Cauchon, decided to introduce an amendment to Canadian law to provide that marriage in Canada will include the phrase: "the voluntary union for life of two persons to the exclusion of all others." The amendment would include a clause to protect religious organizations from being forced to provide a ceremony of marriage for homosexual couples contrary to the religious teachings of the organization. Prior to introducing the amendment in Parliament, the minister of justice has asked the Supreme Court of Canada to provide an advisory opinion on the constitutionality of his proposed amendment. The Court has been invited to give only yes or no answers to these questions: Does the proposed act fall within the exclusive legislative authority of the Parliament of Canada? Is the proposed act consistent with the Charter of Rights and Freedoms? And do the charter's religious freedom guarantees protect religious officials from being compelled, contrary to their religious beliefs, to perform a marriage between two individuals of the same sex? To date, three Canadian provincial governments have intervened in the Canadian Marriage Reference, including Alberta, British Columbia, and Quebec. It is not clear at this time what arguments will be advanced by each province. However, two additional parties have sought status in the appeal. They are members of Parliament and members of the same Liberal caucus as Justice Minister Cauchon. Senator Anne Cools and Roger Gallaway, MP, have sought party status in the reference for the purpose of introducing evidence to be considered by the Supreme Court and for the purpose of presenting legal arguments. According to documents filed with the Supreme Court, the two members of Parliament intend to ask the Supreme Court to refrain from answering the questions posed in the Marriage Reference. They will suggest that the questions in the Marriage Reference are still at the political stage and have not yet matured. They will also argue that if the Supreme Court decides to answer the questions posed, the Court should conclude that Parliament may not change the meaning of marriage by simple legislative action. They will submit that the only way in which the meaning of marriage may be modified is by constitutional amendment. Calgary lawyer Gerald Chipeur, who drafted Cool's and Gallaway's application, was blunt about what the intervention means. "Don't politicize the Supreme Court of Canada. Don't merge the political and judicial functions," Chipeur said. "There's a longstanding principle in the Canadian Constitution that the courts should not be used for political purposes. And here the minister of justice is asking the Supreme Court to write his legislation for him." In addition to a number of technical arguments, the members of Parliament will point out the following: 1. Civil unions established under provincial legislation provide same-sex couples with complete equality of benefit and treatment under the law, and there is no reason under the Charter of Rights and Freedoms to modify federal law to achieve the objective of equality. 2. The meaning of marriage under the common law and under the Canadian Constitution has since Canadian Confederation in 1867 always included only the union of one man and one woman, to the exclusion of all others. 3. No other common law jurisdiction in the world has amended the meaning of marriage to include same-sex unions. 4. The Canadian Bill of Rights identifies the family as fundamental to democracy. 5. The international treaties to which Canada is a signatory require Canada to promote the family and protect children, and there is no better way to achieve both of these objectives than to promote heterosexual marriage. 6. Marriage is a unique societal institution that exists for the benefit of the family and children, and should be maintained as a heterosexual relationship so as to ensure that, to the extent possible, children are raised by their own parents. ___________________________ Joe Woodard writes from Calgary, Alberta, Canada, where he is the religion editor for the Calgary Herald. ___________________________ 1 Joe Woodard, "The Court Urged to Refuse Same-Sex Bill Review," Calgary Herald, Sept. 12, 2003. 2 Ibid.. Article Author: Joe Woodard test for sheldon