November 19th, 2008
The election of President-elect Barack Obama on November 4th was a euphoric moment for socially progressive American voters. The jubilation, however, was attenuated by the simultaneous passage of anti-gay legislation in four states. California, Arizona and Florida voted to ban same-sex marriages while, in a move targeting gays and lesbians, Arkansas banned unmarried couples from adopting and participating in foster care programs.
The media attention has focused largely on California, where the passage of Proposition 8 effectively stripped same-sex couples of the marriage rights that they had won just five months earlier. Last May in Re: Marriage Cases, 43 Cal.4th 757, the California Supreme Court declared that limiting marriage to only opposite-sex unions was contrary to the state constitution’s principles of equality. The Court ordered the state registry to begin issuing gender-neutral marriage certificates immediately. Over 17,000 same-sex couples were married after the Court’s ruling and before the November 4th passing of Proposition 8.
Proposition 8 brings about several legal conundrums. Characterized as a constitutional amendment, the proposition adds a single phrase to California’s state constitution: “Only marriage between a man and a woman is valid or recognized in California.” It remains to be seen whether this provision consequently nullifies the 17,000 same-sex marriages that have already been issued licences. Although California’s attorney general has stated that he will not challenge the validity of those licences, it’s unclear whether the licences would survive legal scrutiny should a challenge be brought, now that the constitution says that California will recognize only opposite-sex marriages.
It is also unclear how Proposition 8 can be made consistent with the constitution in which it finds itself. The California Supreme Court has already ruled that the right to marry “constitutes a basic civil or human right of all people” regardless of gender. In effect, Proposition 8 adds an unsightly asterisk to California’s constitutional guarantees of equality. Moreover, by allowing the whim of the majority to trample on the constitutional rights of the minority, Proposition 8 sets a scary precedent. Although thirty states in the U.S. have already banned gay marriage, this was the first instance of a state revoking marriage rights that it had previously bestowed. Various civil rights groups are already asking the California Supreme Court to either throw out the proposition or have it characterized as a revision rather than an amendment. A constitutional revision requires a 2/3 legislative vote before being presented to the electorate.
Canadians may view what’s happening south of the border with a mixture of disdain and smugness, but the road to marriage equality in our country was long and almost as tumultuous. In light of the recent developments south of the border, this post will look back at the path that led to the recognition of same-sex marriages in Canada.
Fighting for Equality in the Courts: From Egan to Halpern
The most important judicial decision regarding LGBT rights in Canada is arguably Egan v Canada,  2 SCR 513 [Egan], which established sexual orientation as a grounds for discrimination that is analogous to those enumerated in section 15 of the Charter. In Egan, the plaintiff James Egan was set to receive retirement benefits under the Old Age Security Act, RSC, 1985, c O-9. When he applied for his same-sex partner to receive spousal allowance, he was denied on the basis that the term “spouse,” as used in the Old Age Security Act, only included members of the opposite sex. Although the Supreme Court of Canada (“SCC”) ultimately dismissed Egan’s appeal (the majority found that the Old Age Security Act did not discriminate against homosexuals as it served only to support legal marriage, an institution in which gays and lesbians could not participate), it did hold that sexual orientation attracts section 15 scrutiny.
Interestingly, La Forest J. wrote in Egan that marriage is inherently heterosexual because it is “firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate.” This reasoning was later rejected in Halpern v Canada (Attorney General),  65 OR (3d) 161 (ONCA) [Halpern] and in the Reference re Same-Sex Marriage,  3 SCR 698 [Same-Sex Marriage Reference].
The ruling in Vriend v Alberta,  1 SCR 493, can be seen as a direct consequence of Egan. The plaintiff Delwin Vriend was fired from his job but could not seek a remedy under the Alberta Individual Rights Protection Act, the province’s human rights statute, because it did not recognize sexual orientation as a grounds for discrimination. Vriend appealed to the SCC, arguing that the Act was contrary to what had been established in Egan. The Court agreed, though as a remedy, they chose to “read in” protection of sexual orientation into the Act rather than invalidate the Act altogether.
Also building on Egan was M v H,  2 SCR 3, which established that common-law relationships should both include and award equal treatment to, same-sex couples. The case involved the dissolution of a same-sex relationship, with one partner wanting the division of property mechanisms to which opposite-sex common law spouses were entitled. The ruling was significant because it expanded section 15 of the Charter to recognize not only the notion that gays and lesbians should be protected against discrimination, but the idea that same-sex couples as a unit should treated the same as opposite-sex couples.
In response to M v H, the House of Commons passed Bill C-23, an amendment to the Modernization of Benefits and Obligations Act that, while extending common-law spousal benefits to same-sex couples, also defined marriage as “the lawful union of one man and one woman to the exclusion of all others.” The passage of the bill, while a victory for gay rights activists in some respects, was also a statutory blockade against having the word “marriage” include same-sex unions.
Drawing inspiration from the Civil Rights Movement in the United States, which firmly established that “separate but equal” is not equal, gay activists continued to pursue full marriage equality. Their efforts were rewarded in the watershed Ontario case, Halpern. The Ontario Court of Appeal (“ONCA”) upheld the Ontario Superior Court of Justice’s (“ONSC”) decision (which can be read here) that found that the definition of marriage as a union between one man and one woman unjustifiably infringed on section 15 of the Charter. Both the ONSC and the ONCA rejected the argument once relied upon by La Forest J. in Egan to defend marriage as a heterosexual institution centred on supporting procreation and childrearing. Both courts pointed out that many heterosexual couples choose to marry for reasons other than raising children. Furthermore, many same-sex couples already have or could have children by other means, rendering this distinction between heterosexual and homosexual couples moot.
The ONCA was the first appellate court in Canada to recognize the validity of same-sex marriages, but other provinces quickly followed suit; by the end of 2004, most provinces along with the Yukon had begun issuing same-sex marriage licences.
The Same-Sex Marriage Reference
The federal government chose not to challenge the decisions of the provincial appellate courts and instead promised to enact same-sex marriage legislation. In the Same-Sex Marriage Reference the government submitted four questions to the SCC regarding the constitutionality of the proposed legislation:
1. Is the [proposed legislation] respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada?
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?
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?
The SCC answered yes to question 1, finding that changing the common law definition of marriage was within the power of Parliament bestowed by Section 91(26) of the Constitution Act, 1867. While section 91(26) gave Parliament the power to oversee “marriage and divorce,” and marriage had traditionally included only opposite-sex unions, the concept of the Constitution as a “living tree” meant that the meaning of “marriage” in the constitution was not fixed.
The response to question 2 was also affirmative. The Court wrote that the purpose of the proposed legislation, “far from violating the Charter, flows from it.” Only a violation of rights could be deemed an infringement of the Charter, and “the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another.”
With regard to question 3, the Court reiterated that the proposed legislation only dealt with civil marriages. However, if the state were to compel a religious official to perform a marriage contrary to her or his religious beliefs, it would likely be a violation of section 2(a) of the Charter.
Curiously, the Court chose not to answer question 4. They stated that a response, be it in the positive or negative, would be irrelevant because the federal government intended to legalize same-sex marriage anyway. Furthermore, the lower courts had all held that limiting marriage to opposite-sex couples was contrary to the Charter. If the SCC were to answer yes to question 4, it would generate a considerable amount of ambiguity about the status of same-sex marriages, as is presently the case in California.
Still, the reasons the Court provided for not answering question 4 are rather flimsy, given that the rest of the reference strongly implies that the Court believes that the answer is no, ie. that the common law definition of marriage is not consistent with section 15 of the Charter. Professor Peter Hogg speculates that the real reason the Court refused to answer question 4 was “to make Parliament play a role in the legalization of same-sex marriage, so that it could not be claimed that such a controversial project was being entirely driven by judges.” Indeed, it was Parliament and not the court system that wrote same-sex marriage into law, with the Civil Marriage Act, SC 2005, c 33, which was passed on June 28, 2005 and received Royal Assent on July 20, 2005.
The passage of the Civil Marriages Act made Canada the fourth country in the world to nationally recognize same-sex marriages, after the Netherlands, Belgium and Spain. South Africa has since legalized same-sex marriage and the Supreme Court of Nepal has recently directed the Nepali government to introduce legislation recognizing same-sex partnerships or marriages.
As the public demonstrations continue south of border in reaction to Proposition 8, it will be interesting to see where the American gay rights movement goes from here. Unfortunately, the relatively straight path (no pun intended) that same-sex proponents took in Canada towards marriage equality does not seem as realistic in an American context. The solemnization of marriage is a state power, and currently only Massachusetts and Connecticut have legalized gay marriage. Gay rights activists would need to win court battles state-by-state to gain national marriage equality. With the courts in several states having already expressed their opposition to same-sex marriage, one wonders how long it will take until gay and lesbian Americans enjoy the same rights as their northern neighbours.[filed: Family Law Human Rights]