Whoa, that was quick

[ciroccoj]

Apparently the Supremes will hand down their ruling on the gay marriage reference tomorrow. That's pretty quick. Everybody's pretty sure that they'll say it's OK and the gov can go ahead and pass their bill, but it'll be interesting to see how they'll explain their answers to the four questions, and what the dissent will say. I'll try to go on QuickLaw tomorrow and post it when it goes up, in case anybody's interested.


Before the high court
CBC News Online | December 2, 2004

Almost record time. Barely two months after hearing three days of arguments for and against legalizing same-sex marriage, the Supreme Court of Canada is ready to weigh in with its opinion.

Dec. 9, 2004, has been a year-and-a-half in the making – since the federal government revealed wording of legislation it wanted to introduce to legally recognize the union of same-sex couples.

The wording of the proposed legislation – an Act Respecting Certain Aspects of Legal Capacity for Marriage – was released on July 17, 2003, as follows:

-------
From the Department of Justice

Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes.

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;

WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the SAME-SEX;

AND WHEREAS everyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.
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Consequential amendments will be added in the bill that is introduced in Parliament.

But before going ahead with the legislation, the government wanted to make sure that if the bill were passed, it would withstand challenges in court. So then Prime Minister Chrétien announced he would refer the proposed bill to the Supreme Court, asking the justices to consider three questions.

They were:

1. Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
   
2. Is the section of the draft bill that extends capacity to marry to persons of the SAME SEX consistent with the Canadian Charter of Rights and Freedoms?
   
3. Does the freedom of religion guaranteed by the charter protect religious officials from being compelled to perform a marriage between two persons of the SAME SEX that is contrary to their religious beliefs?

The court hadn't heard the case by the time Paul Martin replaced Chrétien as Liberal leader and prime minister in December 2003. Early in 2004, Martin added a fourth question to the Supreme Court reference:

Is limiting common-law marriage to opposite-sex couples unconstitutional?

There was a long list of groups and individuals who were allowed to give their arguments before the court, which is why three days were set aside to hear the case. There were strict limits on how long each intervener could speak.

The following individuals or groups were granted 20 minutes each to make their case:

• The attorney general of Quebec.
  
• The attorney general of Alberta.
  
• The Association for Marriage and the Family in Ontario (made up of Focus on the Family (Canada) Association and REAL Women of Canada).
  
• The Interfaith Coalition on Marriage and Family (made up of the Islamic Society of North America, the Catholic Civil Rights League and the Evangelical Fellowship of Canada).

The following groups or individuals were granted 10 minutes each to make their cases:

• The Ontario Human Rights Commission.
  
• The British Columbia Civil Liberties Association.
  
• The Honourable Anne Cools, member of the Senate.
  
• Roger Gallaway, member of the House of Commons.
  
• The Canadian Human Rights Commission.
  
• The Canadian Bar Association.
  
• The Canadian Coalition of Liberal Rabbis for Same-Sex Marriage (Rabbi Debra Landsberg, as its nominee).
  
• Mouvement laïque québécois.
  
• The Church of Jesus Christ of Latter Day Saints.
  
• The Foundation for Equal Families.
  
• The Metropolitan Community Church of Toronto.
  
• The Manitoba Human Rights Commission.
  
• The Canadian Civil Liberties Association.
  
• Martin Dion.
  
• The Coalition pour le mariage civil des couples de même sexe.
  
• The Working Group on Civil Unions.
  
• The United Church of Canada.
  
• The Canadian Unitarian Council.
  
• The Seventh-day Adventist Church in Canada.

In addition, several couples making up groups known as the "EGALE couples" and the "B.C. couples" were given 30 minutes to speak – but the time had to be shared among them. The same order applied to a group of couples called the "Ontario couples" and the "Quebec couples." All four groups of couples were involved in lower court challenges to laws defining marriage as a union between a man and a woman.

Finally, the Canadian Conference of Catholic Bishops and the Ontario Conference of Catholic Bishops were given 20 minutes to share to make their views known to the justices.

Most analysts expected it would take the court months to sort through all the arguments and write the decision. Two months is remarkably quick for a case of this complexity.

--------------------------------------------------------------------------------
Quick guide to Supreme Court references

What is a reference to the Supreme Court of Canada?

It's a way for the government to get the court's opinion on major legal or factual questions – before they become law. The aim is make sure potentially contentious legislation would survive a challenge under the Constitution.

How often does the government refer issues to the high court?

The federal government has gone this route 76 times since 1892. Some of the most recent references include The Clarity Act (on Quebec secession) in 1998, the David Milgaard Conviction Reference (1991), and the Anti-Inflation Act Reference (1976).

Supreme Court references aren't limited to the federal government. The high court has also heard many references filed by provincial governments in the wake of rulings from their courts of appeal.

How does it work?

Lots of paperwork.

First, the government files the questions it wants answered with the Supreme Court. Next, the attorney general of Canada files a motion asking the Supreme Court to figure out how the reference will proceed.

The court can decide to cover such matters as:

• Who should be notified of the reference.
  
• Who will manage the reference process.
  
• What material should be placed before the court to form the factual underpinning to the reference.
  
• Deadlines for interested parties to apply to intervene.
  The court also decides issues such as who will be allowed to speak before the court and the case's timetable.

People or groups who believe their views need to be heard before the justices decide how to answer the government's questions can petition the court to be granted intervener status. The interveners list on the Supreme Court reference on gay marriage was decided early in 2004. Each group and individual had to file a lot of paperwork following specific rules on how those documents were prepared. The list and rules are on the Supreme Court's website.

Once all the arguments are heard, the nine justices retire to consider their decision – which normally takes several months.

Link to CBC News Online.

Later Edit:
Report from Egale Canada re. the first day of Supreme Court hearings
Report from Egale Canada re. the second day of Supreme Court hearings


Four Questions
1. Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
2. Is the section of the draft bill that extends capacity to marry to persons of the SAME SEX consistent with the Canadian Charter of Rights and Freedoms?
3. Does the freedom of religion guaranteed by the charter protect religious officials from being compelled to perform a marriage between two persons of the SAME SEX that is contrary to their religious beliefs?
4. Is limiting common-law marriage to opposite-sex couples unconstitutional?

• Attorney General of CAnada (1 hour): Yes
  
• Egale & the Five B.C. Couples (15 min): Yes
  
• B.C. Couples (3 couples) (15 min): Yes
  
• Ontario & Quebec couples (30 min): Yes
  
• Canadian Human Rights Commission (10 min): Yes
  
• Ontario Human Rights Commission (10 min): Yes
  
• Manitoba Human Rights Commission (10 min): Yes
  
• Liberal Rabbis (10 min): Yes
  
• United Church of Canada (10 min): Yes
  
• Canadian Unitarian Council (10 min): Yes
  
• MCCT (10 min): Yes
  
• Canadian Bar Association (10 min): Yes
  
• Canadian Civil Liberties Association (10 min): Yes
  
• BC Civil LIberties Association (10 min): Yes
  
• Foundation for Equal Families (10 min): Yes
  
• Coalition pour le mariage civil des couples de meme sex (10 min): Yes
  
• Working Group on Civil Unions (10 min): Should change marriage to civil union and leave marriage to religions
  
• Mouvement laique quebecois (10 min): Not sure here
  
• Attorney General of Quebec (20 min): Clause 1, which defines marriage to include same-sex couples, is within federal jurisdiction. Clause 2, which says “Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs,” is an encroachment on provincial jurisdiction, since it deals with solemnization.
  
• Attorney General of Alberta (20 min): No
  
• Focus on the Family / REAL Women (20 min): No
  
• Islamic Society of North America, Catholic Civil Rights League and Evangelical Fellowship of Canada (20 min): No
  
• Canadian Conference of Catholic Bishops (15 min): No
  
• Ontario Conference of Catholic Bishops and Church of Jesus Christ of Latter Day Saints (15 min): No.
  He asked the Court to say public officials are also protected from being compelled to go against their religious beliefs.
  
• Seventh Day Adventists (10 min): Concerned the state sanction of same-sex marriage will lead to coercion. He said other changes will follow equal marriage, such as polygamy.
  
• Senator Cools / Roger Gallaway MP (10 min): No

Comments

[lonejaguar.livejournal.com]

I knew I kept forgetting to post something. Thanks for the info on this... I heard about them handing down their decision on Saturday, I think. I'm glad they think it'll be positive... I'll be interested to hear what they say, too.

I think I might link back here, if you don't mind :)

[ciroccoj.livejournal.com]

Go ahead :)

[(Anonymous)]

... so I now I can't get this picture out of my head - nine people wearing black wigs, the guys all in drag, singing "Baby Love" ...

thanks ciroccoj

daf9

[ciroccoj.livejournal.com]

I'm hearing them say, "Stop! In the naaame of luuv!"