December 2005 Update on Same-Sex Marriage and
Immigration
The mere recognition of the equality rights of one group cannot,
in itself, constitute a violation of the rights of another. The
promotion of Charter rights and values enriches our society as
a whole and the furtherance of those rights cannot undermine the
very principles the Charter was meant to foster.
Reference re Same-Sex Marriage, 2004 SCC 79 at para 46.
Same-sex marriage was legalized across Canada by the Civil Marriage
Act enacted July 20, 2005. Court decisions, starting in July 2003,
had already legalized the issue of marriage licences to same-sex
couples in eight out of ten provinces and one of three territories,
whose residents comprised about 90% of Canada's population.
The federal and provincial/territorial governments chose not
to appeal any of these decisions to the Supreme Court of Canada.
The federal government instead drafted a proposed bill that would
extend the definition of marriage to same-sex couples and allow
clergy to refuse to perform a same-sex marriage if it was contrary
to their beliefs and referred the bill with four questions in
a reference to the Supreme Court of Canada. Smith & Hughes
appeared at the hearing in Ottawa on October 6 – 7, 2004
and gave oral submissions in support of same-sex marriage on behalf
of the Canadian Unitarian Council. See http://www.cuc.ca/queer/marriage_factum.pdf
for a copy of the written submissions filed with the Supreme Court
of Canada.
On December 9, 2004, in a unanimous decision, the Court confirmed
same-sex marriage as a constitutional right and gave the green
light for the federal government to proceed with its bill. See
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc079.wpd.html
for the Supreme Court decision.
Previously, most legal benefits commonly associated with marriage
had been extended to cohabiting same-sex couples since 1999.
Rob Hughes
December 2005
Read
Supreme Court of Canada opinion here.
