The Balance Works: Same-Sex Marriage and the Charter

St. Thomas University

21 April 2008

Same sex marriage is a controversial issue in Canada, and in countries all over the world. The government, under Prime Minister Paul Martin, legalised same sex marriages when it passed bill c-38 in 2005. This bill was a crucial step forward in the fight for human rights in Canada. It gave power to an identifiable and long suffering minority. Court rulings leading up to the passing of the legislation proved that homosexuals are protected by its equality rights under the Charter. More rulings in provincial courts began the process of re-defining the definition of marriage across the country. The right to same sex marriage embodies all that the charter is meant to be. It is the result of the democratic dialogue between politicians and courts, and Canadian democracy is better off for it.

Gays, lesbians and same sex couples have been fighting for equality rights for years. The first major step toward recognition of their equality rights was in Egan V. Canada. This 1995 court case saw the Supreme Court uphold a decision that made homosexuality an analogous ground under s. 15 of the Charter of Rights and Freedoms. However, it did not give Egan and his partner all of the rights they were seeking. They were still not considered spouses, and they did not get the benefits married couples had. The federal government gave benefits to common-law couples, “regardless of sexual orientation[1], but this had not yet given homosexuals substantive equality country-wide. Some provinces also created domestic registries where same-sex couples were extended the rights of married couples, but this was still not completely equal to being recognized as legally married.

The debate over same sex marriage continued to rage until it was legalized in 2005, and it is still very controversial. After Egan, court cases over the definition of marriage were being filed across the country. Ontario, BC, Quebec, the Yukon, Manitoba, Nova Scotia Saskatchewan, and New Brunswick (although that province just squeaked under the wire) had legalized same sex marriage before the federal government. The provincial court cases that changed the definition were a watershed that led parliament to legalize same sex marriages

Ontario was the first province to legalise same sex marriage. This came about thanks to Hedy Helper, her partner Colleen Rogers, and six other same-sex couples. They were married in a progressive church, where a minister had found an obscure Ontario law that allowed marriages to be recognized as legal without a licence, so long as wedding bans were published before a couple was married.  After being married, the couples went to city hall and tried to acquire marriage licences. They did not fit the definition of, “one man and one woman, to the exclusion of all others,” [2]. As such, the applications were stayed until a court hearing could determine whether same sex couples had the right to marry. The Divisional Court found that, “the common law definition of marriage as the ‘lawful and voluntary union of one man and one woman to the exclusion of all others’ infringed on the couples’ equality rights under s. 15(1) of the Charter in a manner that was not justified under s. 1 of the Charter,”[3]. (Edwards v. A.G. of Canada[1930] A.C. 124) This was a major victory, but it was far from the end of the case.

The Divisional Court ruling was appealed by the Attorney General of Canada. It then went before the Ontario Court of appeal. The court used precedent from both BC and Quebec in its decision, saying the BC Court of Appeal, “declared to common law definition of marriage unconstitutional, substituted the words, ‘two persons’ for, ‘one man and one woman,’”[4]. That decision made it easier for the Ontario court to determine that same sex marriage is a right. It also demonstrated how consensus over the right of same sex couples to marry, at least in the legal world, was being built across the country.

The court had to answer several questions: “what is the ‘common law definition of marriage? Does it prohibit same sex marriages,”[5], whether the definition infringed on the couples’ rights, whether the infringement could be justified under s. 1 of the charter, and what remedy should be given.

The couples argued that there was, “no common law bar to same-sex marriages,”[6]. The court disagreed, as the definition of one man and one woman was outlined, in the Modernization of Benefits and Obligations Act. However, the court did not hold that the traditional definition of marriage was entrenched in the charter, because, “to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country’s jurisprudence of progressive constitutional interpretation,”[7] , The Court said, ” the term ‘marriage’ … has the constitutional flexibility necessary to meet changing realities of Canadian society,”[8]. Again, as in the Divisional Court case, this shows a respect for the living tree doctrine with which the charter is meant to be interpreted.

The court then looked at the right to same-sex marriage in terms of a section 15 requirement of the charter, which says, “every individual is equal before and under the law … without discrimination,”[9]. As mentioned before, homosexuality is an analogous ground under section 15. The judges used a three step test to determine whether the denial of same-sex marriage violated a person’s rights under section 15. The court found that the restriction on a same-sex couple was a violation of that right, as it, “creates a formal distinction between opposite-sex couples and same-sex couples on the basis of their sexual orientation,” which is the first part of the test. The second part was whether, “the differential treatment identified under stage one of the inquiry is based on an enumerated and analogous ground,”[10]. The court was satisfied that sexual orientation, “is the basis for such differential treatment,” [11] and as such fulfilled the requirement. The final aspect of the test, “whether the differential treatment imposes a burden upon, or withholds a benefit from, the claimants,”[12] was also satisfied. This is because, “the dignity of persons in same sex relationships is violated by the exclusion of same sex couples from the institution of marriage,”[13].

Having found that the couples’ were being discriminated against, the court had figure out if that section 15 violation was justifiable under the Charter’s section 1, “reasonable limits,” clause. The Oakes test was used to determine this, as is the standard. The first part of the Oakes test requires that, “the object of the law is pressing and substantial,”[14]. There are two questions in determining this first part of the test, “(i) the objective(s) of the impugned law must be determined; and (ii) the objective(s) of the impugned law must be evaluated to see if they are capable of justifying limitations on Charter rights,”[15]. The court determined that marriage is a fundamental institution, and that it is traditional between people of opposite sex. However, it said that the question that mattered was, “whether there is a valid objective to maintaining marriage as an exclusively heterosexual institution,”[16]. Since the court found that not allowing same-sex couples to marry harms their dignity, it must be, “contrary to the values of a free and democratic society,” and as such cannot be justified. Essentially, the court found that there is no reason to cause harm to the dignity of homosexuals by denying them a right, when no harm would come to anyone as a result of those couples gaining that right.

The Attorney General argued, “marriage, as a core foundational unit, benefits society in that it has proven itself to be one of the most durable institutions for the organization of society,” (116). The Court agreed. The Court also agreed with the Attorney General that, “Marriage has always been understood as a special kind of monogamous opposite-sex union,”[17]. The Court applied the first part of the Oakes test, whether the objective of restricting the right was pressing and substantial

The court found that the Attorney General had three main points in the argument. The first was that marriage is crucial for “uniting the opposite sexes,”[18]. The judges said this suggested uniting opposite sexes, “results in favouring one form of relationship over another,” [19], and, “suggests that uniting two persons of the opposite sex is of lesser importance,”[20]. This causes harm to the dignity of same sex couples, and was not accepted as pressing and substantial as a result.

The second point was that marriage is important for procreation and child raising, and that these would be harmed if the definition was changed.  The Court said traditionally-married couples will keep having children even if homosexuals are allowed to marry. Also, the court found that by extending the right of marriage to same-sex couples, they would be able to more easily adopt children. The Cout also said same-sec couples are able to have children through, “surrogacy and donor insemination,”[21]. This meant that there could be a tangible benefit in terms of child rearing in Canada if same-sex couples were allowed to marry, and that the Attorney General’s argument ignored the fact that, “same-sex couples are capable of having children,”[22]. The court found that there is no evidence to suggest, “that same-sex couples are not equally capable of childbearing,”[23], and that the belief that they were not equally capable was simply a stereotype.  As such, the court found the second argument was not, “a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution,”[24],

The third argument was that opposite-sex marriages must be protected in order to promote companionship. The Court said same-sex marriage would equally promote companionship, and as such this argument is false. None of the arguments were accepted, so the court found that the restriction against marriage for same-sex couples failed the Oakes test because it has no, “pressing and substantial objective,”[25]. As such, the restriction could not be justified under section 1 of the charter

Since the restriction definition of marriage failed the first part of the Oakes test, the Supreme Court only briefly outlined the second, “proportionality analysis,”[26] part of the test.

Rational connection is the first requirement of the proportionality analysis. The Attorney General said that the rational connection between restricting same-sex marriage and keeping marriage as a stable institution was, “self evident,”[27], because marriage is so historically significant and such an important institution. Since same-sex couples did not want to abolish marriage, but have access to it, this argument was not accepted. The Court also found that the child bearing and companionship aspects of the Attorney General’s arguments were not rationally connected to maintaining the traditional definition of marriage.

Minimal impairment is the second part of the proportionally argument. The Attorney General said allowing, “no-fault divorce,”[28], resulted in very high divorce rates and destabilized marriage. The argument went on to say that re-defining marriage would do the same. As such, there is nothing that would both keep marriage stable and result in less impairment to same-sex couples then maintaining the traditional definition of marriage. The Court disagreed, calling the argument, “speculative,”[29]. The Attorney General also said same-sex couples have essentially all the same rights of opposite-sex couples. The Court flat-out disagreed and said legal recognition is required for equality.

The third part of the proportionality analysis, “Proportionality between the effect of the law and its objective,”[30], was not met. This is because the  Attorney General’s arguments failed  the first two parts of the proportionality analysis.

The judges in Halpern decided to give the couples all they asked for in their decision. They declared the definition of marriage invalid, and substituted, ‘one man and one woman,’ for “the voluntary union for life of two persons to the exclusion of all others,”[31]. They decided to give this decision immediate impact, as opposed to holding off for a two year period, (as had been done in other jurisdictions). They also ordered Toronto’s city clerk to issue marriage licences to same sex couples.

This case was an extremely important one. It demonstrated a great use of the charter and proved that it was not useless and frozen in time. Judges stepped in where politicians had not, and ordered that a distinct and disadvantaged group be granted a more substantive equality. The cases redefining marriage had a powerful impact across the nation. It was not long before the federal government had to act.

The Reference re Same Sex Marriage was came about in 2004. The federal government noticed that provincial courts were changing the definition of marriages. These courts had no power federally, but nonetheless politicians were willing to take a small step. The federal government  posed a questions to the supreme Court about the constitutionality of same-sex marriage (probably to avoid having to answer the questions themselves), and then legislators changed the definition. This is a great example of that democratic dialogue working to help a disadvantaged group.

The Attorney General posed several questions to the Supreme Court of Canada about the proposal for an act to change the definition of marriage. They were: whether the Parliament of Canada had the authority to pass its act redefining marriage, whether section one of the proposal, which gave same sex persons the right to marry, was consistent with the Charter, whether religious officials would be protected from being forced to marry same sex couples under the Charter, and whether, “the opposite-sex requirement for marriage for civil purposes,”[32]is consistent with the Charter.

The SCC found that the act was, “intra vires parliament,”[33]. Section 91 (26) of the Constitution Act gives parliament the power over, “marriage and divorce,” and does not define marriage in a way that excludes same-sex marriage. The court added that the frozen concepts argument does not apply because that “reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our constitution is a living tree,”[34], another affirmation of the living tree doctrine. The court also said changing the definition of marriage would impact on the solemnization of marriage, which is under jurisdiction of the provinces, but that, “the effects are incidental and do not relate to the core of the power,”[35].

The Court went on to say that the first section of the proposal, the new definition of marriage, is consistent with the charter. It said the purpose of doing this, “far from violating the charter, flows from it,”[36]. It added that, “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,”[37]. The Court is stating that although the right to marriage between same-sex marriage is not exclusively outlined in the Charter, it clearly falls under the purpose of the Charter, must be respected, and will make society better as a result. The court also said possible conflicts with freedom of religion may arise when the government’s bill is passed, but that they will not be, “incapable of resolution,”[38].

In answering the third question, the court expanded on these possible religious conflicts. It said, “the guarantee of religious freedom in s. 2(a) of the Charter 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 beliefs,”[39]. This is another example of the Charter working as it was intended. It guarantees freedom and equality to  both gay couples and religious officials. This happens by giving same-sex couples freedom to marry, but without forcing religious officials to conduct the service if it conflicts with their beliefs. It is a happy medium where no one is disadvantaged or harmed.

The Court declined to answer the final question of whether the opposite-sex requirement for civil purposes is constitutional. This was not because of a fundamental issue within the Charter, but rather because the court felt its answer could only serve to either harm the cause of human rights or throw the law into confusion. Saying the requirement is constitutional would create problems across the country, especially in the six jurisdictions where same-sex marriage was already legal. Saying no would create “uniformity,”[40] across the country, but it was unnecessary when the government was planning to pass legislation that would have the same effect anyway. This again shows how strong the charter is. It encourages a democratic dialogue and allows the court to defer to legislators when their ruling could possibly bring confusion. This shows the balance of power and helps Canadian democracy.

After the reference question, Paul Martin’s government passed Bill C-38. It changed the definition of marriage to, “the lawful union of two persons to the exclusion of all others,”[41]. It also “recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs,”[42], laying down a very important rule that reassured many Canadians who oppose same-sex marriage. The bill also made it clear that, “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction,”[43] because of the new definition. The bill also changed the definition of spouse in the divorce act to not reflect gender, and made amendments to several acts to make them apply to same sex couples.

The legalisation of same-sex marriage was a long process. It started in Courts and ended in parliament. It was the result of the living tree doctrine inherent in the Charter, and of the democratic dialogue the Charter encourages. The decision is still very controversial in Canada, the Alberta government actually used the non-withstanding clause against the new definition of marriage until 2005, but it is a good, beneficial decision. It serves to end stereotypes about and give better equality to a marginalized group. There were no real reasons outside of speculation and misconception to not legalize same-sex marriage, and Canada is better off for its progressive, and very legal, stance.

Works Cited:

Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1^st

reading, June 28^th,2005, 38^th Parliament, 1^st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available: http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-38&parl=38&ses=1&language=E&File=29#1

The Charter of Rights and Freedoms, Government of Canada, 1982. Online. Available at:

http://laws.justice.gc.ca/en/charter/index.html

Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 28 (ONT. C.A.)

Reference re. Same Sex Marriage (2004) (S.C.C.)

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[1] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 28 (ONT. C.A.)

[2] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 1 (ONT. C.A.)

[3] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) 16 (ONT. C.A.)

[4] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.33 (ONT. C.A.)

[5] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.25 (ONT. C.A.)

[6] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.35 (ONT. C.A.)

[7] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.41 (ONT. C.A.)

[8] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.46 (ONT. C.A.)

[9] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.59 (ONT. C.A.)

[10]Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.73 (ONT. C.A.)

[11]Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.75 (ONT. C.A.)

[12] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.77 (ONT. C.A.)

[13] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.108 (ONT. C.A.)

[14] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.113.1 (ONT. C.A.)

[15] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.114 (ONT. C.A.)

[16] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.117 (ONT. C.A.)

[17] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.116 (ONT. C.A.)

[18] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.118 (ONT. C.A.)

[19] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.119 (ONT. C.A.)

[20] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.119 (ONT. C.A.)

[21] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.122 (ONT. C.A.)

[22] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s122 (ONT. C.A.)

[23] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.122 (ONT. C.A.)

[24] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.121 (ONT. C.A.)

[25] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.125 (ONT. C.A.)

[26] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.127 (ONT. C.A.)

[27] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.128 (ONT. C.A.)

[28] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.133 (ONT. C.A.)

[29] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.134 (ONT. C.A.)

[30] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.139 (ONT. C.A.)

[31] Halpern et. al. Vs. Attorney General of Canada et. al. (2003) s.156.2 (ONT. C.A.)

[32] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[33] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[34] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[35] Reference re. Same Sex Marriage (2004) Q.1 (S.C.C.)

[36] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[37] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[38] Reference re. Same Sex Marriage (2004) Q.2 (S.C.C.)

[39] Reference re. Same Sex Marriage (2004) Q.3 (S.C.C.)

[40] Reference re. Same Sex Marriage (2004) Q.4 (S.C.C.)

[41]Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1^st reading, June 28^th, 2005, 38^th Parliament, 1^st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available: http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-38&parl=38&ses=1&language=E&File=29#1

[42]Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1^st reading, June 28^th, 2005, 38^th Parliament, 1^st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available: http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-38&parl=38&ses=1&language=E&File=29#1

[43] Bill C-38. An Act respecting certain aspects of legal capacity for marriage for civil purposes 1^st reading, June 28^th, 2005, 38^th Parliament, 1^st session, 2005. (Online). Ottawa: Public Works and Government Services Canada, 2005. Available: http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-38&parl=38&ses=1&language=E&File=29#1