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Landmark decision: Canadian court OKs same-sex ‘marriage’

Updated Dec. 13, 2004

OTTAWA, Ontario (BP)–Canada may become the third country to legalize same-sex “marriage” after its Supreme Court ruled Dec. 9 that Parliament has the authority to change the nation’s marriage laws.

Same-sex “marriage” already is legal in six of the 10 provinces and in one territory, but the federal government — ruled by the Liberal Party — is moving to legalize it nationwide.

In the summer of 2003 the Liberals drew up a bill and sent a list of questions to the high court, asking if the federal government had the authority to legalize same-sex “marriage.” The court heard arguments in October and issued its landmark decision Dec. 9. The ruling in essence is an advisory opinion.

Parliament will now debate the bill, which redefines marriage to mean the “lawful union of two persons to the exclusion of all others.”

“Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples,” the court wrote. “The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.”

Canada would join Belgium and the Netherlands as the only three countries to legalize same-sex “marriage” nationwide. It is also legal in the U.S. state of Massachusetts.

Supporters of the bill praised the decision, while conservatives and traditionalists clung to hope that it still could be defeated. The Canadian Department of Justice issued a statement saying that the bill will be introduced in the House of Commons “as soon as possible” in late January. It will be a “free vote” — meaning that each member of Parliament can vote his or her conscience and will not be required to follow the party line.

“In making this decision, the Court has clearly indicated that access to civil marriage is a matter of fundamental equality,” the Department of Justice statement read. “… Now that the Court’s decision has brought clarity to this issue, the government will respond quickly and decisively to introduce a bill which will respect and defend the Charter rights of all Canadians.”

Conservatives, though, found some hope in the ruling. Janet Epp Buckingham, director of law and public policy for the Evangelical Fellowship of Canada, noted that the court declined to answer one of the four questions it was presented.

“The Supreme Court refused to rule on whether marriage must be redefined. They said that the federal government may redefine it,” Buckingham told Baptist Press, drawing a distinction between “must” and “may.”

“… They have pushed the issue back into the political arena,” she said.

The fourth question asked if the “the opposite-sex requirement for marriage for civil purposes” was “consistent with the Canadian Charter of Rights and Freedoms” — the Canadian version of the Bill of Rights. The court, though, declined to answer.

“They refused on the fourth question, which was essentially, ‘Does marriage have to be redefined?'” Buckingham said. “We think it’s a positive thing, that they’re sending this back to Parliament to make a ruling on. There has not been a political debate on this issue. It’s been kept out of political debate.”

The vote in Parliament could be close. In 2003 a non-binding motion defending the traditional definition of marriage was narrowly defeated in Parliament, 137-132. Approximately 50 members of the Liberal Party voted for the motion, and around 30 members of Parliament did not vote at all.

But there has since been an election, muddying any headcount.

“We don’t have a voting record for [new members],” Buckingham said. “But among those we do have a voting record for, it’s very, very close.

“Until it’s a done deal, there’s still hope.”

One Liberal member of Parliament was vocal about his opinion.

“I do personally have a problem with redefining marriage and I’m sure some of my colleagues do as well,” Liberal lawmaker Roy Cullen told the Associated Press.

The Canadian Supreme Court did rule that religious freedoms would be protected if same-sex “marriage” is legalized. But how far that would extend remains to be seen. For instance, could a civil official who presides at weddings be able to refuse to perform a same-sex “marriage”? The court did not say.

“Absent unique circumstances with respect to which the Court will not speculate,” the court wrote, “the guarantee of religious freedom … is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.”

Buckingham was cautious about the court’s opinion on religious freedom.

“We’re very pleased to see them make that kind of strong endorsement for religious freedom, but they said that it is not up to the federal government to protect religious freedom; it’s up to the provincial governments,” she said. “Under our constitution, marriage is a federal responsibility but solemnization of marriage is a provincial responsibility.”

Conservatives will have to work to ensure that religious freedoms are protected, she said.

“What we’re going to be doing is calling on the provincial governments to protect the religious freedom in legislation,” she said. “It’s not sufficient just to have an advisory opinion from the Supreme Court endorsing religious freedom. We need to see this in legislation.”

The issue of same-sex “marriage” has highlighted a deep cultural divide between Canada and the United States. Canadian Prime Minister Paul Martin, a Liberal, supports “gay marriage.” American President George W. Bush opposes legalization and backs an amendment to the U.S. Constitution banning same-sex “marriage.”

Polls show that Canadians are split on the issue of same-sex “marriage.” In the United States, polls show that Americans oppose it by a margin of 2-to-1.

But the two countries do share at least one trait — the role of courts in the “gay marriage” movement. In Canada, homosexual activists have sued in six jurisdictions — including the aforementioned five provinces — and won every time. In the U.S., a court ruling forced Massachusetts to legalize same-sex “marriage.”
For more information about the national debate over same-sex “marriage,” visit http://www.bpnews.net/samesexmarriage

    About the Author

  • Michael Foust