Supreme Court of Canada Decision on Gay Marriage, Summarized and Plainified

[ciroccoj]

I'm reading through the Supreme's decision and trying to summarize and plainify the language. Here's what I've got so far, and I'll be posting as I go. Note: text in blue indicates a direct quote.

Reference re Same-Sex Marriage
Supreme Court of Canada
Judgment: December 9, 2004.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
(i.e. full court press).

The Feds asked the following questions:

1. Is the federal government allowed to (a) change the definition of marriage and (b) affirm that religious officials who don't want to marry gays will not be forced to do so?
   
2. If yes, is the proposed law OK with the Charter?
   
3. Does the freedom of religion/conscience section of the Charter protect people who don't want to perform gay marriage?
   
4. Is it OK with the Charter for marriage to remain exclusively het?

This is the proposed legislation:

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.

Held:
(Note: As far as I can tell, this decision was unanimous. Please correct me if I'm wrong.)
Question 1: With respect to [Proposed Act] s. 1, yes. With respect to [Proposed Act] s. 2, no. So yes, the Feds can change the definition of marriage. No, they cannot state that this change will not affect the freedom of those who choose not to perform marriages. Only the provinces can do that.
Question 2: Yes.
Question 3: Yes.
Question 4: Don't ask, don't tell ;)


Question 1: Is the federal government allowed to (a) change the definition of marriage and (b) affirm that religious officials who don't want to marry gays will not be forced to do so?

1. Section 1 of the proposed law refers to the legal capacity for civil marriage, which the Constitution says is for the Feds to decide. (Note that this is the Constitution, not the Charter. The Charter is only a part of the Constitution). To wit: under section 96, "Powers of the Parliament" the Constitution says that the Feds can make laws on anything that the provinces can't. And that furthermore and forsooth and forthwith, the Feds have absolute dibs on the following matters: (29 subjects, including taxes, the post, stats, the army, yadda yadda ... and #26, Divorce and Marriage.)
   
   [CirNote: So nyah nyah nyah Ralph Klein.]
   
   Furthermore, those who say that OK, so maybe the Feds may have jurisdiction over Marriage, but that only means the definition of marriage as it was when the Constitution was written (1867): Bzzzt wrong.
   
   The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. Read expansively, the word "marriage" in [Constitution Act 1867] s. 91(26) does not exclude same-sex marriage.
   
   
2. However: Feds, don't get cocky. Your Section 2 is not kosher. The Constitution says: Section 92: In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, [16 subjects, including #12] "The Solemnization of Marriage in the Province."
   
   [CirNote: that little sound you hear is the Feds' wrists getting slapped]

Question 2: If Question 1 is answered yes, is the proposed law OK with the Charter?

Yup, it's peachy-keen. Goes well with section 15(1) of the Charter, which guarantees equality for all citizens. In fact, the proposed law, far from violating the Charter, flows from it. With respect to the effect of s. 1 [of the proposed law], the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the [Charter] s. 15(1) rights of another.

[CirNote: I really like that last part, BTW. I'd make it my sigfile if I wasn't sure it would almost always be greeted by a resounding "Huh?"]

As for the conflict between the [Charter] s. 15(1) equality rights of gays coming into conflict with the [Charter] s. 2(a) freedom of conscience and religion of religious officials, the Court figures they'll work it out. It has not been demonstrated in this reference that impermissible conflicts -- conflicts incapable of resolution under s. 2(a) -- will arise.

Question 3: Does the freedom of religion/conscience section of the Charter protect people who don't want to perform gay marriage?

Absent unique circumstances with respect to which the Court will not speculate... Yes. Duh.

Question 4: Is it OK with the Charter for marriage to remain exclusively het?

Um... that ship has sailed, people. The Feds have already said they'll put forth legislation to change this. Supreme Courts in five provinces and a territory have already changed the law in their jurisdictions. People are already married all over the place and are sort of expecting their marriages to be respected. So we're gonna pass on this, 'K?

Added Thursday night: Paragraphs 1-30 of the legal nitty-gritty


Cases Cited: 35.

Statutes and Regulations Cited: 7, including Canadian Charter of Rights and Freedoms, ss. 1 ["reasonable limits"], 2(a) ["freedom of conscience and religion"], 15(1) ["equality"].

History and Disposition: Yadda yadda, already stated above.

Counsel: Lots of people, for 27 groups, and Peter Hogg, The Dude in Constitutional Scholarship in Canada, for the Attorney General of Canada.

The following is the opinion delivered by
THE COURT:—
[CirNote:... in 74 paragraphs (¶) of scintillating prose.]

	I. Introduction
¶1	Restate proposal, noting that it deals only with civil marriage.
¶2-3	Restate the questions.
¶4-7	Restate the answers. [CirNote:If only it were all this painless.] II. The Reference Questions
¶8	Some people have said that we have no business answering any of these questions, because they have to do with politics and should be left to politicians.
¶9	Well, the Supreme Court Act, section 53(1), says that Parliament can ask us about (d) the powers of the Parliament of Canada ... whether or not the particular power in question has been or is proposed to be exercised. Which is exactly what we're looking at here.
¶10 - 11	Now, we all know we can refuse to answer if there's not enough legal content to a question, or if a question is too vague. But in this case, that's not a problem. Yes, it's a hot political potato, but that doesn't mean we can't answer it. The politics is just part of the context of the questions, not part of the question themselves.
¶12	About question 4, though... we could answer it, but we'd really rather run screaming in the opposite direction. A. Question 1: Is the Proposed Act Within the Exclusive Legislative Authority of the Parliament of Canada?
¶13-14	To decide whether a political body has the power to pass a law, first we look at the substance of the law, then we see where the Constitution said the power to make laws about that substance should go. So here we go:
¶15	Section 1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. (a) Determination of Legislative Competence
¶16-18	The substance of this law has to do with the capacity to marry, and Section 91(26) of the Constitution Act, 1867 confers on Parliament competence in respect of "Marriage and Divorce" [Constitution Act 1867] s. 92(12) of that Act confers on the provinces competence in respect of "[t]he Solemnization of Marriage in the Province", and we're going to repeat and rephrase that point a few times to get make sure everybody understands it. We'll even point out that this means the Feds decide which citizens can marry each other, and the Provinces decide who can marry them. To each other, that is. No, not marry them as in 'become their spouse' – marry them, as in 'declare them man and wife'. Uh, except, not just man and wife, because, after all, that's what we're here to decide – oh bugger. ::deep breath:: The Feds decide who the happy couples can be, and the Provinces decide which priests/ministers/imams/rabbis/justices/ship's captains can pronounce them married happy couples.
¶19	Take home lesson: "s. 1 of the Proposed Act ... [p]rima facie, therefore, it falls within a subject matter allocated exclusively to Parliament ([Constitution Act 1867] s. 91(26))." (b) Objections: The Purported Scope of Section 91(26)
¶20	This still wasn't good enough for some people, who said that [Constitution Act 1867] s.91(26) could not have meant to give Parliament permission to let gays marry, because (i) the meaning of "marriage" is constitutionally fixed, necessarily incorporating an opposite-sex requirement; and (ii) any such law would trench upon subject matters clearly allocated to the provincial legislatures. (i) The Meaning of Marriage is Not Constitutionally Fixed
¶21	So they quoted the definition of marriage, from Hyde v. Hyde (1866): "Yadda yadda ... marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
¶22	...The reference to "Christendom" is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Furthermore ... here's one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. If not, women would still not even be considered persons. [CirNote: Nor would they make up 4/9 of the Supreme Court and 1/1 of the Chief Justice of the Supreme Court.]
¶23	We've used this progressive approach in the past to deal with newfangled contraptions like telephones and brand shiny new crimes [CirNote: online child porn], neither one of which had been invented in 1867. Keep up, people. You better start swimming or you'll sink like a stone, for the times, they are a changing.
¶24	But still, people told us that (1) marriage is a pre-legal institution and thus cannot be fundamentally modified by law; (2) even a progressive interpretation of [Constitution Act 1867] s. 91(26) cannot accommodate same-sex marriage since it falls outside the "natural limits" of that head of power ... and (3) in this instance, the intention of the framers of our Constitution should be determinative. We didn't buy any of it.
¶25	As to the "marriage is as it is and has been since time immemorial" [and the fact that world-wide, polygamy is more popular than monogamy and wives are traded for cattle etc etc doesn't get on the radar]: bull-puckey. In the Persons case [CirNote: where Canada decided whether women could be considered persons under the law, 1930], Lord Sankey said, "Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive." Lord Sankey acknowledged ... that "several centuries ago" it would have been understood that "persons" should refer only to men. Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. 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.
¶26-29	On to the "natural limits" argument, which relies on the tautology that the natural limit of the definition of marriage is a natural limit because it is a natural limit. Yeah, we don't get it either.
¶30	We finish this section with the argument that the we should interpret this as the framers would have wanted, as decided in R. v. Blais. However, that case was talking about something totally different. Next.

Added Friday afternoon: Paragraphs 31-46, where the fun never ends

	(ii) The Scope Accorded to Section 91(26) Does Not Trench on Provincial Competence
¶31	Those who say that the Feds recognizing same-sex marriage will infringe on the sacred territory of the provinces are out to lunch because (1) the impact will be rather minor and (2) they get their backs up thinking that same-sex relationships will be equated with same-sex marriage.
¶32	OK, so this will change things in the provinces because for example, the provinces will have to do paperwork for people to marry who could never marry before – licenses, registrations, division of property upon divorce, etc. However: get real. This is not really related to who will get to do all of the above, which is what the provinces are supposed to control.
¶33	About the same-sex relationship v marriage: no, not all relationships are marriage. And the provinces have the right to legislate with respect to "civil unions", be they same-sex or het (you know, property stuff, civil rights, etc). Marriage (gay or het) = Federal, civil union (gay or het) = provincial. Here, let's repeat that a bunch of times. All together now, marriage = Federal, civil union = provincial.
¶34	Everything has to be governed by something, if not provincially, then Federally. In this case, since gay marriage clearly cannot be governed by the provinces, it must be governed by the Feds. (2) Section 2 of the Proposed Act
¶35	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.
¶36	Problem: here the Feds are trying to govern who gets to perform or not perform a marriage. Remember waaaay back in ¶16-18, where we said that was the personal playground of the Provinces?
¶37	The Attorney General tried to say that this didn't mean the Feds were trying to tell the provinces who could or couldn't do marriages – it was just sweet nothings whispered in the provinces' and religious groups' ears to help them to interpret the new Fed law and to make them feel better. Aww. How nice. You shouldn't have. No, really. You shouldn't have.
¶38-39	Sure, the Parliament can tell folks how to interpret the Parliament's acts. But if in doing so they try to dictate what the provinces do in an area where the provinces are supposed to decide their own actions... sorry, guys. We're drawing a big red X on section 2. B. Question 2: Is Section 1 of the Proposed Act, Which Extends Capacity to Marry to Persons of the Same Sex, Consistent with the Charter?
¶40	To do this, first we see whether the purpose or effect of the proposed law violates a Charter right, and if it does, we look at whether that's OK under s. 1 of the Charter. (1) Purpose of Section 1 of the Proposed Act
¶41	The purpose of s. 1 of the Proposed Act is to extend the right to civil marriage to same-sex couples, to legislate on what several courts have already decided on [CirNote: and no, they didn't really end a sentence with a preposition].
¶42	Look at the preamble of the act: 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;
¶43	Now, when we look at the actual text of the proposed law, we see that's exactly what they do – respect the [Charter s. 15(1)] equality rights of gay citizens, just like the Charter says they should. Sounds pretty good to us. (2) Effect of Section 1 of the Proposed Act
¶44	But some people have said that the proposed law actually infringes on equality rights and freedom of conscience rights. (a) Section 15(1): Equality
¶45	Apparently some people feel that by refusing to discriminate against gays who want to get married, the government is discriminating against religious groups who don't believe gays should get married, and against married het couples. Get your head around that one if you can. We couldn't. We found that the proposed law withholds no benefits, nor does it impose burdens on a differential basis, so ixnay on the quality-eyay thing.
¶46	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.

</td></tr></table>

Added Friday night: Paragraphs 47-end

	(b) Section 2(a): Religion
¶47	Supposedly, the Proposed Act may violate freedom of religion in three ways: (1) impose a 'dominant social ethos' and limit the freedom to hold religious beliefs to the contrary; (2) force priests, imams, etc to marry gays; and (3) create a "collision of rights" in spheres other than that of the solemnization of marriages by religious officials.
¶48	The first argument, we've already dealt with. Once more, with feeling: giving equality rights to one group does not violate the rights of another group.
¶49	We'll get to the second argument in the next section.
¶50	On to the third argument (the act will create an "impermissible collision of rights"). Here's the thing. It may. But that doesn't necessarily make it unconstitutional. It just means that we'll have to cross that bridge when/if we get to it. The courts may find that the rights in conflict can be reconciled, and all will be rosy. And if not... we'll muddle through somehow, try to balance rights in context, and see where we all end up. And please let's all keep in mind that no Charter right is more worthy of protection than any other, and the right to religious freedom is pretty damn big.
¶51-54	In any case, would you people please relax? This thing hasn't even been passed yet and you've already got your knickers in a twist over a possibly future conflict of rights. Could we please wait till we get there before freaking out? And could we please show a little faith that if somebody's religious freedom actually does get trampled on by the implementation of this law, we'll fix that with all due haste? C. Question 3: Does the Freedom of Religion Guaranteed by Section 2(a) of the Charter Protect Religious Officials From Being Compelled to Perform Same-Sex Marriages Contrary to Their Religious Beliefs?
¶55	Um, remember where [Proposed Act] s. 1 says that this thing is for civil marriage only? Civil marriage. Not religious. Civil. Apples and oranges, folks. However, some religious people perform non-religious weddings. So let's look at whether they could be forced to marry gays. And before we go on, let's remind ourselves that making or preventing anyone from performing any marriage ceremony is something only the provinces can do, and that they would have to respect the Charter in whatever approach they take.
¶56-58	So, could priests be forced to marry gays? Please. That would violate everything the Charter stands for.
¶59	As a side note, could churches be forced to rent their buildings out for gay marriages? Answer: see above.
¶60	Conclusion: relax. D. Question 4: Is the Opposite-Sex Requirement for Marriage for Civil Purposes, As Established by the Common Law and Set Out for Quebec in Section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, Consistent with the Charter? (1) Threshold Issue: Whether the Court Should Answer Question 4
¶61-62	Well, we've hardly ever shied away from shooting our mouths off before, but we do have the right to decline to answer a question. We'd call it "taking the Fifth," except that this is Canada and we don't have a Fifth, so, um... well. Anyway, we can refuse to answer when a question isn't 'legal' enough (not a problem here) or when we are faced with a big, stinky mess.
¶63	Big stinky messes have historically meant (1) the question is too vague or (2) we haven't been given enough information to make a meaningful decision. But that doesn't mean that's the only kind of mess we're entitled to avoid.
¶64	Which brings us to the current mess.
¶65	First consideration: Parliament has already said they're going ahead with this thing no matter how we answer this question. [CirNote: So why bloody well ask?] Common law in five provinces and one territory already recognizes same-sex marriage. Section 5 of the Federal Law-Civil Law Harmonization Act, No. 1 says marriage doesn't have to be opposite-sex. So why bloody well ask us? [CirNote: Thank you!] Besides, answering this could be a really, really dumb move on our part.
¶66-67	For one thing, there's lots of people out there who are already married and would presumably like to stay that way. Like, all over the country. In fact, here's a shiny little list of all the lower court decisions that have prompted thousands of folks everywhere to get married. [CirNote: I'll spare ya'll that list.] And we're sorry, but we find that [t]here is no compelling basis for jeopardizing acquired rights, which would be a potential outcome of answering Question 4.
¶68	You can't ask the court to rule on something that the lower courts have already ruled on if you didn't contest those rulings. You know when the guy/gal up front says, "Speak now or forever hold your peace?" You could've appealed. You didn't. Too late now. The only case that's remotely like this one, where the government could have appealed, but didn't, and then sought a reference, had to do with the Newfoundland Continental Shelf. And it wasn't much like this one, because in that case both parties had agreed to get a reference instead of an appeal.
¶69	No, really, guys: why are you asking? If you want marriage uniformity across Canada, make a law. What's that you say? You've already decided to make a law? Well then why are you asking if it would be OK to not make that law?
¶70	If you want the law uniform across the country, the only way we can answer this is "No." If we answer Yes, what are you going to do? Hadn't thought of that, had you?
¶71	In conclusion: see above. We have the right to remain silent, and after 71 paragraphs, we're finally going to use it. (2) The Substance of Question 4
¶72	Not going there. See above. III. Conclusion
¶73	The Court answers the reference questions as follows: Yes and No, Yes, Yes, Shh.
¶74	Oh BTW, no, we won't pay your lawyer fees. We're not Small Claims Court. That's the news and we are outta here.

CirNote: There. All done indulging my inner geek ;)


And for those who like pain, here's the actual text of the decision.

Comments

[(Anonymous)]

So I'm still working on it ... but this is what I have figured out so far (and admittedly I've put my own slant on it).

From the land of wild roses
Premier Ralph Klein opposes
And stubbornly disparages
Gays and lesbians in marriages
('Cause the notion steps on some narrow-minded folks toeses).

The Feds still need more Constitutional schooling
But based on this recent Court ruling
Though it leaves poor Ralph smitten
Same sex marriages he'll be gittin'
Ralphie's attitude may be due for retooling.

Because after many proclamations litigious
And arguments both vehement and prodigious
Marital relationships are civil
So the law's decreed it is drivel
For Constitutional precepts to be overruled by religious.

daf9

[ciroccoj.livejournal.com]

Ralphie's attitude may be due for retooling.

::snicker:: Very cute :)

Great news!!!

[bufftuff.livejournal.com]

For those of us in the States, there is still hope. Thanks for the excellent coverage. Have a great one.
Super blog by the way.

Re: Great news!!!

[ciroccoj.livejournal.com]

For those of us in the States, there is still hope.

I sure hope so. It frankly puzzles the hell out of me how the two countries have drifted so far apart on this issue in the last few years.

Thanks for the excellent coverage. Have a great one.
Super blog by the way.

You're very welcome, and thanks :)

Re: Great news!!!

[daf9.livejournal.com]

I think the two countries have drifted apart in part because Canada has always been more tolerant of cultural diversity (perhaps because of the whole French-English thing) while the US has always encouraged immigrants and others to blend in.

Re: Great news!!!

[ciroccoj.livejournal.com]

Maybe, but why in the last few years? It wasn't that long ago that our own mainstream politicians were advocating declaring marriage het "to protect the family." We weren't that far apart on the issue. And now we're moving towards federal legalization while the US is moving towards a federal constitutional amendment banning it. At least 11 of their states ban it, while 6 of our provinces/territories have legalized it.

Whaddup?

Re: Great news!!!

[daf9.livejournal.com]

I should have added that the US has gone a little nuts since 9/11, becoming far more fearful and far less tolerant of anyone the slightest bit different from themselves. 9/11 really shook American confidence and I think it's that fear that religious fundamentalists and other conservative groups have played on.