This is what really happened why the civil marriage act opposite-sex requirement is no longer in force - the rulings by lower courts in eight jurisdictions in Canada that were not challenged by the Federal Government.
Courts in eight jurisdictions have recognized that the right to equality without discrimination requires that couples of the same sex have equal access to civil marriage. And thousands of same-sex couples are already legally married.
The case varied from a same-sex couple survivor applying for benefits and denied and decision reversed on appeal. This is the precedent case in Ontario. And the Provincial Attorney General decided not to appeal the reversal. Note that a man and a woman living common-law for at least three consecutive years is under our law, legally married. Now applicable to same-sex couple.
Before the dissolution of the last Parliament, the Govt. Of Prime Minister Paul Martin, was tabling the new Civil Marriage Act and already referred the questions to the Supreme Courts as to the constitutionality of the bill. But that Bill died in the house, because of Non-Confidence vote and the defeat of the government in subsequent election.
The Supreme Court of Canada has said – and the Government agrees – that it is preferable that Parliament create uniformity of law across the country. Federal legislation is the best way to provide a clear, Canada-wide approach.
The bill also recognizes that freedom of religion is already fully protected by the Charter of Rights and Freedoms, as confirmed by the Supreme Court of Canada in its recent decision. That is why its title speaks of civil marriage. Religions will continue to make their own decisions about this question.
The bill will give same-sex partners who decide to marry, the same civil legal recognition of their commitment as other married couples while respecting religious freedom.
Background
On June 17, 2003, the Government of Canada announced that it would not appeal the decisions of the courts of appeal in British Columbia and Ontario on the definition of marriage, but would instead draft a bill extending access to civil marriage to same-sex couples while also affirming the freedom of religious belief, and refer that bill to the Supreme Court of Canada to ensure its constitutionality. On July 17, 2003, the Government referred the draft bill to the Supreme Court of Canada.
The Reference asked three questions concerning the draft bill:
1) Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
2) Does the draft bill conform to the Canadian Charter of Rights and Freedoms?
3) Does the Charter protect religious officials from performing marriages between two persons of the same sex if it is contrary to their religious beliefs?
On January 28, 2004, the Minister of Justice announced that the Government had filed a new question with the Supreme Court of Canada, asking whether the opposite-sex requirement for marriage was constitutional. The fourth question was added in order to ensure that Parliament had full information on the legal framework before they were asked to debate this important issue.
On October 6 and 7, 2004, the Supreme Court heard arguments from the Government of Canada and 28 interveners.
On December 9, 2004, the Supreme Court of Canada released its decision on the marriage Reference. The Court agreed with the position of the Attorney General of Canada on the constitutionality of the draft bill, holding that the draft bill was not only consistent with the Charter but flowed from its protections. The Court declined to answer the fourth question on the constitutionality of the opposite-sex requirement for marriage, with the result that the lower court decisions in eight provinces and territories holding that the opposite-sex requirement is unconstitutional stand. The Court gave as its reason for not answering the fourth question that many Canadians had already acted in reliance on the lower court decisions and married. The Court also indicated that other approaches, such as giving same-sex unions legal recognition by another name, such as civil union, were less than equal and so would not be consistent with the Charter, requiring the use of the notwithstanding clause. The Court found that the Charter already fully protects religious officials from being forced to perform marriages that would be against their religious beliefs, although they also found that the one clause in the bill on religious freedom was not entirely within federal jurisdiction, and that any additional protections that might be desired would have to be made within provincial and territorial laws.
The Bill was not re-introduced in the house this current session of Parliament and may not until after the next election that could take place as early as next summer or fall.
Prime minister Stephen Harper has been promising the country a "free vote" on this bill if and when it will come to that. Meaning each member can vote according to his/her conscience or the wishes of the majority of the member's contituents. But meantime, same-sex marriage is legally binding and has the status and benefits of any other marriage, as per decision by lower courts and affirmed by the SC that all lower courts decisions stand. Chances that any government that will bring this bill into law in the near future will stick to the proposed draft as it was already been affirmed by the SC as to its conformity with the Charter of Rights and Freedoms- which is the basis by which any law will be challenged.
Reference: Justice Department, Canada..
