Reference re Same-Sex Marriage

The federal government referred four questions on its proposed Civil Marriage Act. The SCC confirmed Parliament's authority to extend marriage to same-sex couples and held that compelling religious officials to perform such marriages would violate s.2(a).

Following provincial appellate decisions (Halpern in Ontario, EGALE in BC) recognising same-sex marriage, the federal government drafted legislation extending marriage to same-sex couples and referred its constitutionality.

(1) Is the proposed Act intra vires Parliament under s.91(26)? (2) Is it consistent with the Charter? (3) Does freedom of religion in s.2(a) protect religious officials from being compelled to perform same-sex marriages? (4) Does the opposite-sex requirement remain constitutional? (Court declined to answer Q4.)

Yes to (1), (2), and (3). Question 4 not answered.

Parliament may legislate definitionally on marriage under s.91(26). Extending marriage to same-sex couples does not violate the Charter; it advances equality. Compelling religious officials to perform marriages contrary to their religious beliefs would violate s.2(a). Provinces retain authority over solemnisation under s.92(12).

The Court held that the head of power in s.91(26) is not frozen — the living-tree doctrine applies. The Charter's purpose advances equality; extending marriage advances that purpose. Forcing officiants to act against conscience would violate religious freedom. The Court refused to answer Q4 because Parliament had already announced it would extend marriage; an answer would be advisory and politically charged.

Cleared the constitutional path for the Civil Marriage Act, which extended marriage to same-sex couples nationally in July 2005, making Canada the fourth country to legalise same-sex marriage.

Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.

McLachlin CJ, Major J, Bastarache J, Binnie J, LeBel J, Deschamps J, Fish J