Same-Sex Marriage

By: Chon Love

Despite popular myth, the nature of marriage as a legal and social institution has evolved significantly over the centuries. Since there is no sacrament of registered domestic partnership, the only solution is to have same-sex marriage legally recognized which would mean that it would be fully accessible to all Canadians who wish to take this path in life.

Sexual Orientation
And
Legal Rights

Over the past 20 years, the rights of Lesbians and Gays in Canada have been debated in the courts and the political arenas. At this time in history, discrimination is officially prohibited based on sexual orientation. In addition, the Canadian Charter of Rights and Freedoms has been legally updated for the Gay and Lesbian Community in Canada. We are now considered equals. The courts have extended the institution of marriage for same-sex couples based on constitution equality rights that at this time is the biggest step for the Gay and Lesbian community.

For example:

Justice LaForme was the first judge to say, “immediate remedy to marriage discrimination for same-sex couples needs to be allowed into marriage without any further delay.”

Tradition of Marriage

Before the Europeans came to North America, the First Nations would say that same-sex couples were no different from other members of their tribes because homosexuals were moral and “God made them that way.” It may be fair to say that this was the tradition in this country until the Christian concept of marriage was introduced.

Marriage is a public affirmation of love before friends and family, sometimes performed within a religious congregation. Marriage also confers a well-recognized socially significant status that is perceived by many to be a commitment of the highest order of one person to another. Traditionally marriage has been defined as “The voluntary union for life of one man and one woman, to the exclusion of all others.” However, what I do not see are the words “to procreate”. Because it has always been defined as such, it does not mean that the concept of marriage has not gone through a number of changes over time.

From the dawn of the European settlement in Canada, the marriage system has reflected tradition. As a result, the Christian concept of marriage has dominated the history of Canada, even though notable exceptions have persisted in special circumstances. The consensual unions of white men and Indian or mixed-blood women in the northwest fur trade are good examples.

In the 18th century, there was a change in England and Canada; marriage was no longer to be only within the church’s authority. However, Ontario’s marriage Act of 1793 was more restrictive than English law. Only Church of England marriages were legally recognized under the 1793 Act.

In the 19th century, Ontario legal recognition was given to all Christian marriages; eventually Jewish and other non-Christian marriages were also given the same recognition as Christian ones.

In the past, marriage in Canada was usually a religious rite. Civil marriage has always been possible, at least since the end of the French era, but until recently, it has been relatively uncommon.

In the 20th century there were two other changes made. “In 1950, marriage was finally permitted in Ontario through a purely civil ceremony by a judge or other official.” At this point, the separation between religion and legally recognized marriage was almost complete.

When people say that marriage has a traditional meaning, this is true. At the same time, it has been through so many changes over the years. If people want to go back to the true tradition of marriage, you would need to go back to where the only marriages that were permitted were the ones that were done by England’s state religion, and any others were not seen as being legal or right in the eyes of God.

Same–sex marriage is currently legal in six provinces and one Territory. Courts have ruled that the traditional definition of marriage, between a man and a woman, is unconstitutional.

The move toward legalizing same-sex marriage started in British Columbia, Ontario, and Quebec. Similar court rulings followed in Manitoba, Nova Scotia, Saskatchewan, and the Yukon Territory.

At this point in time, Alberta, New Brunswick, Prince Edward Island, the Northwest Territories, and Nunavut do not allow same-sex weddings.

Statistics Canada has released information that was based on same-sex couples households in Canada. In 2001, there were 25,005 same-sex couples (which was the largest group) in Ontario, with 6,685 of them being in Toronto; the place with the lowest was Nunavut with 25 couples. Canada’s total number of same-sex couples was 68,400 and out of that number, there were 5,230 with children. The percentage of same-sex couples across Canada is just under .5%. However, no matter how you add up the numbers, the real issue is one of human rights and equality for all. However, things seem to be changing; at this time, over 70% of Canadians live somewhere that will marry same-sex couples.

Decima surveyed 1,040 Canadians: “A telephone poll that was done by Decima research that was done from December 16 to the 20th, 2005. The poll suggests a slight majority of decided Canadians support gay marriage with 39 per cent in favour and 37 per cent opposed. The poll is considered accurate within plus or minus 3.1 per cent, 19 out of 20”.

In Atlantic Canada, Manitoba, Saskatchewan and Alberta, about half of the responders were against same-sex weddings and about 30 per cent in favour. The rest were undecided or did not want to say anything. In addition, the poll suggests that older Canadians are against same-sex marriages.

Support for gay marriage is the strongest in Quebec, British Columbia and Ontario. The latter is a traditional bastion of Liberal Support with more than 40 per cent of decided respondents in favour, while those who oppose are between 29 and 35 per cent.

If the legislation is passed in Canada, it will be among the first countries to officially recognize same-sex marriage.

Canadian Charter of Rights and Freedoms and Guarantee of Rights and Freedom Of 1982

The Charter says that “Everyone has the following fundamental freedoms: Freedom of conscience and religion” in addition, “the freedom of thought, belief, opinion, and expression, including freedom of the press and other means of communication”.

Freedom of Religion
Freedom of Conscience and of Religion

With respect to International Law on Freedoms of Conscience and Religion, article 18 of the International Covenant on Civil and Political Rights is worded as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.

The Freedom of Religion covers the rights to have your own religious beliefs and to openly practice them. At the same time, people of different faiths or individuals that do not follow any religious beliefs/ practices should have the same rights. Additionally, this freedom prevents any individual or group from enforcing their beliefs on others, or placing limits on anyone else. In cases where this may be attempted, the only solution to it would require the government and the law to take a neutral stance. Professor Woehrling wrote, “neutrality, in its most fundamental sense, persists provided that the state behaves in the same way towards all religions, and does not treat one religion less favorably than others.”

Equality Rights

Same-sex couples should have the full rights of marriage. At the same time, we will also need the protections and the obligations that come with marriage. We are not asking for special rights or different laws, just that we have the same rights as the majority.

Many faith groups wish to perform legally recognized same-sex marriages; others do not wish to have same-sex relationships in their faith. That is ok as well. This is not a debate between the Gay and Lesbian community and people of other faith groups; it is between people of differing beliefs.

Freedom of religion protects other faiths that do not recognize same-sex relationships from having to accept them. The Supreme Court has established that those who hold the belief that homosexuality is sinful are entitled to those beliefs. However, they must accept constraints on those values when they enter the public realm. Our society and our fundamental constitutional laws recognize as a matter of public policy that Gays and Lesbians, and their relationships, are entitled to equality. However offensive that principle may be to some persons of religious faiths, that is the law.

Bibliography

Hurley. Mary C. Sexual Orientation and Legal Rights. Library of Parliamentary Information and Research (Bibliotheque Du Parlement) Revised 4 October 2004

The Specific Individual Religious Practices and Expressio0n Of Faith. January 23, 2005
http://www.meq.gov.gq.ca/Refome/religion/html-ang/ang/text/chapter5-I.htm

History of Marriage TCE Standard Basic Influences on Marriage