Fighting over God by Buckingham Janet Epp;

Author:Buckingham, Janet Epp;
Language: eng
Format: epub
Publisher: McGill-Queen's University Press
Published: 2014-08-15T00:00:00+00:00

Same-Sex Marriage

Mark Walters notes, “The common law, broadly defined, purported merely to acknowledge a social and religious custom that was regarded by Europeans as a moral principle that pre-existed and supported, rather than derived from, law and legal systems.”17 Suffice it to say that the in the twentieth century, the legal definition of marriage was a common law definition, except for in the province of Quebec.18 Changes to the definition of marriage were made through legal challenges that asked the courts to change the precedent.

The first challenge to the heterosexuality of marriage was in 1974. A gay couple in Manitoba had a wedding ceremony at a Unitarian Church but the province would not register the marriage. Chris Vogel and Richard North brought an unsuccessful application in court to require the province to register the marriage.19

Following a number of cases that extended marital benefits to same-sex couples, legal challenges to the heterosexual definition of marriage commenced in three provinces – Ontario, Quebec, and BC – in 2000.20 Religious coalitions that opposed the redefinition of marriage intervened in all these cases. These religious coalitions testified that marriage is deeply rooted in religion, and that some religions, namely Islam and Judaism, have their own systems of religious family law. These groups expressed concern that religions that define marriage as being between a man and a woman would be marginalized if marriage were to be redefined. Of the three initial court challenges, only the British Columbia Supreme Court upheld the historic definition of marriage.21 The Ontario and Quebec challenges were successful, and the BC case was overturned on appeal.22 More provincial superior courts changed the definition of marriage.23 None of the cases was appealed to the Supreme Court of Canada.

Given that defining marriage is a federal responsibility, it became confusing to have different definitions of marriage in different provinces.24 The federal government, however, faced considerable opposition to legislating a change to the definition of marriage.25 Prior to and during the period encompassing the legal cases, there were studies and hearings exploring different avenues to recognizing conjugal relationships. These included a study by the Law Commission of Canada and hearings by the House of Commons Justice Committee.26

The federal government ultimately proposed legislation to redefine marriage, which included protection for the religious freedom for clergy solemnizing marriage, although that was clearly within provincial jurisdiction.27 Further, it made a reference to the Supreme Court of Canada to determine the constitutionality of the proposed legislation. The Supreme Court heard from religious interveners and representatives from gay and lesbian groups. It ultimately decided that the legislation was constitutional.28 Parliament proceeded to pass the legislation, defining marriage “for civil purposes, as the lawful union of two persons to the exclusion of all others.”29 As religious groups had continued to express grave concerns about the consequences of defining marriage in a way that did not accord with religious definitions of marriage, the legislation also included two specific protections for religious freedom. The first, as mentioned, was for clergy. The second, added

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