The Canadian Supreme Court's Same-Sex Marriage Decision:
An Interesting Contrast to the United States's Law

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Dec. 14, 2004

Last week, the Canadian Supreme Court issued an historic advisory opinion (a "reference," in Canadian parlance). The opinion clears the way for the Canadian Parliament to enact a law that would permit same-sex couples to marry throughout the country.

The proposed law states that "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others." The Court rendered its decision as a response to Parliament's decision to seek rulings on the law.

Among the questions Parliament asked the Court were whether the Canadian Parliament has the exclusive authority to define marriage, and whether legislation extending the right to marry to same-sex couples would be consistent with the Canadian Charter of Rights and Freedoms (the equivalent of America's Constitution).

The court said yes to both questions. At the same time, the Court - declining a reference for the first time since 1929 - refused to opine whether the opposite-sex requirement of current law would also be consistent with the Canadian Charter.

In addition, the Court also said yes to Parliament's question whether the freedom of religion guaranteed by the Canadian Charter would be infringed by compelling individuals to perform a same-sex marriage, if doing so was against their religious beliefs. But it noted that the proposed legislation already allowed an exception for objecting officials. It added, too, that only state compulsion, not interclergy compulsion, was at issue; a church could direct all its clergy to perform same-sex marriages without triggering the government action requirement necessary for the Charter to come into play.

It is now up to Parliament to find the political will -- and the votes -- to enact same-sex marriage legislation. It is widely believed that, in 2005, it will do so.

If it does, it will join Belgium and the Netherlands as the only countries to provide for such unions nationwide. (Regions within several other countries - including the State of Massachusetts -- permit same-sex couples to marry or enter into alternative civil statuses such as civil unions or domestic partnerships.)

In this column, I will explain the backdrop against which the Canadian decision was made, and contrast the legal situations with regard to same-sex marriage in the United States and in Canada.

The Canadian Legal Landscape Before The Canadian Supreme Court's Ruling

Since 1999, throughout Canada, same-sex couples have been able to enter, by contract, into common-law marriages (marriages by consent without the benefit of solemnization or a license).

More recently, within the last eighteen months six Canadian provinces (Ontario, British Columbia, Quebec, Manitoba, Nova Scotia, and Saskatchewan) and the Yukon territory have each ruled that banning same-sex marriage violates the Canadian Constitution. Only one provincial government (Alberta) officially opposes same-sex marriage. And commentators predict that the remaining jurisdictions, if asked in an appropriate case, will join the majority of seven.

Meanwhile, thousands of same-sex couples have married, following the provincial rulings -- including many who live in the jurisdictions that still remain silent. And they are likely to continue to marry, even before Parliament's law passes in 2005. Only a law from Parliament banning same-sex marriage - highly improbable, given Canadian politics - could stop them.

As noted above, the Canadian Supreme Court chose to remain silent on this question, too. Doubtless, the High Court was hoping to avoid judicial intervention when a legislative same-sex marriage law seemed imminent. (Indeed, it noted specifically that it was unnecessary for it to reach the question, given Parliament's stated intention to proceed with legislation to permit same-sex marriage regardless of the conclusions reached in the advisory opinion.)

The Court was also attempting, it said, to avoid casting into doubt the thousands of same-sex marriages that had already taken place. An affirmative answer would call those rulings--and the marriages that ensued--into question.

The Canadian Parliament's Power Over Marriage: Far Broader Than the U.S. Congress's

According to the Supreme Court's opinion, the federal government of Canada has not just the authority, but the exclusive authority, to define marriage. In Canada, provincial legislatures have explicit authority to regulate "how" couples marry--whether they need a license, who can solemnize the union, etc. But provinces have no say as to "whether" couples may marry. Put more formally, the federal government retains exclusive authority to determine "the legal capacity for civil marriage."

In sharp contrast, in the U.S., the power to make domestic relations law is at least presumptively reserved to the states. That means that not only does the federal government share authority to legislate in the field of domestic relations with the states, but when it does so, the federal government's share is lesser than the states'. Put another way, if the federal government barges into the area of marriage, it may also face claims that it has violated principles of constitutional federalism, and intruded on areas that are the states' exclusive prerogative.

Of course, Congress has the power to define marriage in federal statutes for federal purposes, as it did in the 1996 Defense of Marriage Act (DOMA). That Act limits "marriage" to a union between a man and a woman - but that governs only federal benefits, federal employees, and the like. For instance, DOMA suggests that the meaning of "spouse" within the federal Social Security Act, for purposes of determining survivors' benefits, cannot encompass a same-sex partner.

But neither DOMA, nor any other act of Congress, can prevent a state from permitting a same-sex couple to marry. Nor can any federal law prevent a state from granting same-sex couples any and all of the non-federal rights associated with that status. And as noted above, most marriage-related rights are non-federal - they, too, relate to quintessentially state law areas such as parenting, trusts and estates, wills, contracts, and the like.

Thus, when Massachusetts began allowing same-sex couples to marry last May, neither Congress nor the President could do a thing about it - short of a constitutional amendment, ratified by three-quarters of the states.

The Senate debated an amendment to ban same-sex marriage, but, as I discussed in a previous column, it failed to pass. And that's no surprise. As Cardozo Law Professor Edward Stein, has chronicled, similar amendments - banning interracial marriage; banning polygamy; or seeking to give Congress power to regulate marriage and/or divorce - have, when introduced, always failed.

In sum, in the U.S., the states have power over marriage, and have actively resisted surrendering it. But in Canada, the situation is very different: Parliament has power, and provinces have little say except over formalities.

Is Parliament's Marriage Power Limited by Canada's Charter?

Nevertheless, some argued to the Canadian Supreme Court that the Canadian Parliament's power over marriage, though broad - does not give Parliament authority to redefine marriage to include same-sex couples. They have said that would violate Canada's fundamental law, its Charter of Rights and Freedoms - which trumps Parliament's laws, just as the U.S. Constitution trumps federal statutes.

According to this view, the definition of marriage is constitutionally fixed to mean whatever it did in 1867, when the Constitution Act was passed. And at that time, the definition of civil marriage was bound to its religious roots, and was defined as the "voluntary union for life of one man and one woman, to the exclusion of all others."

But the Canadian Supreme Court refused to see Canada's fundamental document as encompassing only "frozen concepts"; it saw it, instead, as a "living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life." Such an approach ensures, the Court reasoned, "the continued relevance and, indeed, legitimacy of Canada's constituting document."

Those opposed to a federal same-sex marriage law also tried to invoke a U.S. parallel: They argued that such a law would infringe on provincial authority.

But the Canadian Supreme Court rejected this argument, pointing out, in effect, that Canada's federalism is very different from that of the United States. In Canada, the Court noted, federal definitions regarding other impediments to marriage already constrain provincial authority, so the federal rule that a same-sex couple's status is not an impediment only amends the existing list.

Contrasting Canadian and U.S. Same-Sex-Marriage History

It is very interesting to contrast the Canadian opinion with that of the Massachusetts Supreme Judicial Court in Goodridge v. Dep't of Public Health. (The Vermont Supreme Court, too, issued an opinion much like Goodridge.)

First, the rulings themselves are very different: The Canadian court held that Parliament could constitutionally allow same-sex marriage. In contrast, the Massachusetts court held that the Massachusetts legislature could not constitutionally ban same-sex marriage.

Recall, also, that the Canadian court could have chosen to reach essentially the same holding as the Massachusetts court - and strike down opposite-sex-only marriage as unconstitutional. But the Canadian court chose not to. Instead, it deferred the decision on same-sex marriage to a political body, rather than issuing a judicial fiat. In this sense, the Canadian decision, while broad and liberal in its result, was also conservative in its method.

Second, the consequences of the rulings have been very different, too. Canada's highest court opened the way for the legislature to act as it wanted to. Massachusetts' highest court, however, threw the reluctant legislature into a flurry.

The question the Massachusetts legislature asked the court was not, 'Can we pass gay marriage legislation?' It was, instead, 'Are civil unions good enough?' The Massachusetts court said no: Only marriage itself would honor the state Constitution's mandate of equality.

Third, and finally, the courts' approaches were also very different. The Massachusetts opinion spoke in detail of the human hardship imposed on gays and lesbians by discriminatory marriage laws. In contrast, the Canadian Court hardly made mention of gays or lesbians - choosing to speak, instead, in general terms.

In particular, the Canadian court wrote that "[t]he mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another," the Court wrote. It also cited the proposed legislation's Preamble, which speaks of the "values of tolerance, respect and equality." And it concluded that, given these values, the proposed law upon which it was advising "far from violating the Charter, flows from it."

Canada as a Bellwether: Watching Probable Same-Sex Marriage Legalization Up North

If Parliament, as expected, does pass a law allowing same-sex marriage, it will be interesting to watch what occurs to the north of us.

Will the cultural response to same-sex marriage be more supportive than in the United States? Canada certainly has vocal opponents of same-sex marriage, too. But will their criticism be as strong, given that same-sex marriage will be a creature of the legislature, not the courts?

Here, of course, after Massachusetts' highest court legalized same-sex marriage, an otherwise unpopular anti-same-sex-marriage president was re-elected - and eleven states adopted constitutional amendments banning same-sex marriage.

Will Canada experience a similar backlash? It may not. In part, that is because it is more politically liberal, as a polity, than the United States. But in part, that is also because Canada's legalization of same-sex marriage, it seems, will come from a legislature, rather than a court.

Many American conservatives have suggested that same-sex marriage would be less objectionable if mandated by a legislature. We will soon see if their Canadian counterparts hold the same view.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her other columns on same-sex marriage - and on other family law topics, on trusts and estates, and on discrimination, including sex discrimination and sexual harassment -- may be found in the archive of her columns on this site.

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