Supreme Court ruling - a victory for all

by Laurie Arron

The Supreme Court has unanimously given the green light to the government’s equal marriage legislation. This is a victory for all Canadians, and for cherished Canadian values like tolerance, respect and equality.

The Court made clear that the Charter protects us all. It protects gays and lesbians from being excluded from civil marriage, and it protects religious officials from being compelled to perform either civil or religious marriages that are contrary to their religious beliefs.

The principles that underlie these protections extend to all Canadians. By upholding these principles, we ensure that no group can be made the scapegoats of the nation.

Some people have expressed concern about religious officials being forced to marry same-sex couples. However, there is a big difference between civil marriage and religious marriage.

Anti-discrimination laws are simply inapplicable to religious marriage, or to any activities within the religious sphere. Religious officials have always been free to set their own rules for religious marriage. Some have chosen not to perform inter-faith marriages or to marry divorced persons. Their right to do so is clear, and is protected by the Charter.

People simply don’t sue religious organizations to get them to change their religious doctrines. It’s never happened. They would get nowhere. In the past that has been clear. With Thursday’s Supreme Court ruling it is now undeniable.

The Court said “the guarantee of religious freedom in s.2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same-sex marriages that are contrary to their religious beliefs.” The Court also said that the Charter protects against “the compulsory use of sacred places for the celebration of such marriages” and being “compelled to otherwise assist in the celebration of same-sex marriages.”

The Court was asked whether including same-sex couples in civil marriage violated anyone else’s Charter rights. Their answer was a resounding ‘No’, eloquently stated as follows:

“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.”

The Court chose not to second-guess the rulings of courts in 6 provinces and the Yukon, which said that it is unconstitutional to exclude same-sex couples from civil marriage. The Court made this choice out of respect for the legal principle of finality. Since the federal government accepted these decisions, and thousands of same-sex couples have relied on them, it would not be fair to re-open the issue. Once again, the Court went out of its way to affirm legal principles that ensure protection for all Canadians, both now and in the future.

Although the Court did not re-visit the legal analysis of the lower courts, it did state that these decisions “are binding in their respective provinces.” Because of this, it preserved the now well-established legal principle that excluding same-sex couples from civil marriage is unconstitutional discrimination.

The Court also suggested its support for extending equal marriage to the remaining provinces and territories, by stating that uniformity of the law across Canada “is essential”. It noted that this “is the very reason that Parliament was accorded legislative competence” over the definition of marriage.

The evidence shows that excluding same-sex couples from civil marriage sends the message that they are inferior and reinforces the stigma surrounding homosexuality. This does terrible damage to the lives of gays and lesbians, as well as their children.

The evidence also shows that there is no reasonable justification for this exclusion, since heterosexual couples and marriage itself are not harmed in any way.

The Court sent some other very strong signals about the wisdom of including same-sex couples in civil marriage. It said that doing so “far from violating the Charter, flows from it” and that our society is enriched by upholding the Charter rights of gays and lesbians. It even compared equal marriage to women’s equality.

The Court invoked the famous 1930 “Persons” case. At stake in that case was whether women could be “qualified persons” eligible for appointment to Canada’s Senate. It was argued in that case that, since Roman times, women had always been considered “unqualified” for public office.

The comparison is most apt. Many people express opposition to equal marriage based on the longstanding history of the opposite-sex restriction. But, as noted in the Persons case, and repeated Thursday by the Supreme Court, the “appeal to history therefore in this particular matter is not conclusive.”

It is now clear that excluding same-sex couples from civil marriage violates our Charter of Rights and Freedoms, and goes against Canadian values like fairness, inclusion and respect for difference.

Respecting our differences is not always easy. Sometimes it’s downright challenging. Thankfully, we don’t all have to agree. But we do have to get along, and we do have to respect the right of every Canadian to participate in our most basic public institutions.

We may have different religious values and different sexual orientations, but this country is big enough for us all.

Civil marriage is big enough for us all.

In this world, there are many countries where people with different beliefs cannot live together in peace. Here in Canada, we respect and celebrate our differences. That’s what makes this country great.


Laurie Arron is a lawyer and is Director of Advocacy of Egale Canada, the national group working for equality and justice for lesbian, gay, bisexual and transgender people and their families. He is also the Political Coordinator for Canadians for Equal Marriage.