Reference re Same-Sex Marriage

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IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26;

AND IN THE MATTER OF a Reference by the Governor in Council concerning the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes, as set out in Order in Council P.C. 2003-1055, dated July 16, 2003

Indexed as: Reference re Same-Sex Marriage

Neutral citation: 2004 SCC 79.

File No.: 29866.
2004: October 6, 7; 2004: December 9.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

REFERENCE BY GOVERNOR IN COUNCIL

Constitutional law -- Distribution of legislative powers -- Marriage -- Solemnization of marriage -- Federal proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes -- Proposed legislation providing that marriage for civil purposes lawful union of two persons to exclusion of all others -- Legislation providing also that nothing in Act affecting freedom of officials of religious groups to refuse to perform marriages not in accordance with their religious beliefs -- Whether proposed legislation intra vires Parliament -- Constitution Act, 1867, ss. 91(26), 92(12).

Constitutional law -- Charter of Rights -- Equality rights -- Freedom of religion -- Proposed federal legislation extending right to civil marriage to same-sex couples -- Whether proposed legislation consistent with guarantees of equality rights and freedom of religion -- Canadian Charter of Rights and Freedoms, ss. 2(a), 15(1).

Constitutional law -- Charter of Rights -- Freedom of religion -- Proposed federal legislation extending right to civil marriage to same-sex couples -- Whether guarantee of freedom of religion protects religious officials from being compelled by state to perform same-sex marriage contrary to their religious beliefs -- Canadian Charter of Rights and Freedoms, s. 2(a).

Courts -- Supreme Court of Canada -- Reference jurisdiction -- Discretion not to answer reference questions -- Whether Court should decline to answer reference questions -- Supreme Court Act, R.S.C. 1985, c. S-26, s. 53.

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council referred the following questions to this Court:

1.Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

2.If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms 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 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 Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

The operative sections of the proposed legislation read 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.

Held : Question 1 is answered in the affirmative with respect to s. 1 of the proposed legislation and in the negative with respect to s. 2. Questions 2 and 3 are both answered in the affirmative. The Court declined to answer Question 4.