Thursday, December 09, 2004

Response to Marriage Decision

Here is the result of the Supreme Court of Canada’s unanimous nineteen-page decision on the Federal Marriage Reference.

1) Federal Legislation Seeking Court Blessing of Same Sex Marriage Succeeds.
2) Religious Rights to Refuse to Perform Same-sex Marriages Protected as is Refusal to Allow Same-sex Marriages on “sacred places.” Court states that Provinces must ensure these rights are protected as well in Human Rights legislation;
3) Court Refuses to Answer Whether Heterosexual Marriage Only Could be Constitutional.
4) Court, therefore, does not say whether or not Heterosexual only marriage law could be constitutional - - Court hasn’t decided the point.

Conclusion: Federal Government refuses to appeal Appeal Court decisions. Same sex couples obtain marriage licences. Court then says that obtaining marriage licences creates a “right” that cannot be rolled back without causing confusion. Supreme Court doesn’t answer whether heterosexual only marriage law could pass constitutional test because the Federal Government has said it will pass legislation no matter what the Court says.

The only conclusion from this history and the Court’s Reasons is that the Government has played fast and loose with legal procedure to ensure that same sex marriage occurs in Canada. The Supreme Court of Canada has played into the careful game of “lets avoid the analysis” and in a very brief decision almost totally focused on secondary issues (not a single mention is made of children at all for example) and not on law, evidence or serious analysis, grants same-sex marriage.

It is clear from the decision that the Government is not required to mandate same-sex only marriage. It could bring in a civil registration model that is not “same sex marriage” if it wishes (but it did not ask the Court this question).

The Government could also, if it raises the point, which it has not yet done, bring in a heterosexual only marriage law and have that tested by the Supreme Court of Canada. What the Government, based on its past record, however, will likely do is say that it is simply responding to what the Court said should be done.

Result: “Civil unions” that are not marriages and that do not recognize “same sex marriage” (because they will not focus on marriage at all) have not yet been tried in Canada, have not been put to the Supreme Court of Canada and could still be brought forward in Parliament.

Iain Benson ©