CP National News
Article published: Dec 9, 2004

Supreme Court approves bill to legalize same sex weddings, says church protected

OTTAWA (CP) - Canada's top court says Ottawa has the authority to redefine marriage to include same-sex couples, but religious officials cannot be forced to perform unions against their beliefs.
The Supreme Court of Canada refused to say in its advisory opinion whether the traditional definition of marriage - between one man and one woman - violates equality rights. Almost immediately, Prime Minister Paul Martin said the government will introduce gay marriage legislation in the new year.
Martin said MPs will be free to vote their conscience, but cabinet ministers must support the government's bill.
The Supreme Court pointedly noted that the federal government has already endorsed lower court judgments that it is discriminatory to exclude gays from marrying.
"The government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this question."
Moreover, thousands of couples who have already married in six provinces and the Yukon should be able to count on those victories, the court unanimously said.
"The parties to previous litigation have relied upon the finality of their judgments and have acquired rights which . . . are entitled to protection."
Times have changed and the legal definition of marriage should change with them, the high court suggests.
"Several centuries ago, it would have been understood that marriage 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."
Still, the charter of Rights and Freedoms clearly protects religious freedom, the court said.
"It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate . . . the charter."
The court's landmark opinion signals the final stage of a long, bitter fight over whether gays and lesbians should be allowed to marry.
Justice Minister Irwin Cotler has already said the Liberals will introduce a bill to legalize same-sex unions as early as this month.
Dan Miller and Gianluca Ragazzini were thrilled. The Ottawa couple were married on June 14, 2003.
They joined a throng of pro-and anti-gay marriage advocates who jostled before a horde of media microphones in the Supreme Court's marble lobby Thursday.
"We feel like this is yet another step in considering our love for each other equal to everybody else's," Ragazzini said.
The fight for full acceptance isn't over, he conceded.
Many MPs and almost half of Canadians polled in recent surveys are against same-sex marriage, and Alberta's Conservative government has vowed to fight to the end.
"Some people are really afraid of change," Ragazzini said. "I think the important thing is realizing that marriage has changed throughout history, and this is another natural change.
"It will not make anybody's marriage less valuable. We think that actually it will improve the institution for everybody."
Conservative Senator Anne Cools vehemently disagreed. A fundamental social issue should be decided by voters through a referendum - not by unelected judges, she said.
"There's a moral imperative and a moral obligation to go to the people of Canada."
Same-sex marriage could become legal across the country next year if the minority Liberals win enough support in the divided House of Commons.
It's expected a vote on legalizing gay weddings would narrowly pass even without the support of several Liberals and the Conservatives.
Judges in six provinces and one territory have already struck down the traditional marriage definition, saying it violates equality rights. Thousands of same-sex couples have already tied the knot.
Should the legislation pass, Canada would join Belgium and the Netherlands in allowing gays to wed.
The high court opinion on same-sex unions is strictly advisory.
Still, its political aftershocks will reverberate across Canada.
The high court reference comes 18 months after former prime minister Jean Chretien abandoned his government's fight against same-sex marriage by refusing to appeal provincial court rulings in Ontario, British Columbia and Quebec that declared traditional marriage laws unconstitutional.
His government then drafted legislation that would allow gay and lesbian weddings in city halls, courthouses and in religious institutions that choose to perform them.
To ensure the bill is legally bullet-proof, the Liberal government asked the high court three questions:
-Does the federal government have exclusive authority to define marriage? The question was a pre-emptive strike at any provincial attempt to thwart the new law. Alberta Premier Ralph Klein has said he would use the Constitution's notwithstanding clause to cancel the legislation in his province.
-Does the charter protect religious groups from having to perform gay weddings against their beliefs?
-Is the proposed same-sex marriage law constitutional?
Prime Minister Paul Martin expanded the reference after he was sworn in last December, adding a fourth question: Is the traditional definition of marriage - between one man and one woman - also constitutional? This was aimed at clarifying once and for all whether the century-old definition of marriage is flawed.
The federal Conservatives and several Liberal MPs are expected to wage a bitter final battle to preserve marriage for heterosexuals.

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