Long answer: The outcome of the Ontario and B.C. decisions for residents of other provinces and territories is confusing, uncertain and leaves a gap in the law. The federal government controls WHO can marry; the provinces regulate the technical requirements such as who can perform the ceremony and how the deed is registered. From a strict legal perspective, the Ontario and B.C. decisions declare the common law limitations on marriage (one man to one woman) unconstitutional and these decisions, unless and until overturned by the Supreme Court of Canada (rather unlikely in our opinion), applies across the country. The Quebec decision also declared the opposite-sex restriction unconstitutional but left it to the feds to extend marriage to same-sex couples.
The courts could not order other provincial or municipal governments to issue licenses or accept registrations because none of those governments were party to the litigation. However, the federal common law opposite-sex definition of marriage has been changed by the ruling and in theory, there is nothing to prevent a provincial/territorial government elsewhere in Canada from applying that law in our favour (except in Alberta and Quebec where statutory opposite-sex definitions continue to apply, at least for the time being). In practice, however, other provinces are unlikely to act unless/until their own courts tell them to do so. As such, a Parliamentary solution or a Supreme Court ruling will be required before we have equal marriage across Canada.
2. I live in another province or territory, or outside of Canada. Can I go to Ontario or B.C. to get married?
Yes! Neither Ontario nor B.C. have residency or citizenship requirements for marriage (although there is a one-year residency requirement for divorce in Canada). Marriage licences will generally be issued on the same day you apply for them.
3. What is the federal government’s response to this ruling and what does it mean?
The federal government has:
Not appealed the Ontario, BC or Quebec decisions (though religious opponents have appealed the Quebec decision, which will be heard September 25 by the Quebec Court of Appeal);
Proposed legislation to extend civil marriage to same-sex couples, and to affirm protection of the right of religions to marry couples only in accordance with the dictates of their faith;
Referred the draft legislation to the Supreme Court to ensure that it will have effect across Canada and to reassure Canadians that it will have no effect on religious freedom to marry or not to marry same-sex couples; and
Stated that following the Supreme Court ruling, a free vote will be held in the House of Commons.
4. What are the three Reference Questions?
The three Reference questions are as follows:
Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
Is the section of the draft bill that extends capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?
Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
5. When will the Supreme Court rule on the Reference?
The Reference is not on the Court’s fall schedule, and so will not be heard until at least early 2004. A decision will take at least a few months. As a result, the ruling is not expected until at least spring 2004.
6. When will the Free Vote happen?
It is unclear when the free vote will happen, since several MPs are proposing that Parliament not wait for the Supreme Court to rule on the Reference. It will take at least a month or two between the introduction of the legislation and it’s ultimate passage. There is talk of Paul Martin wanting to put the legislation to a vote before a planed spring election. It is unclear whether he would put the legislation to a vote knowing it may not pass, but that appears to be a possibility. If Parliament does wait for the Reference decision, then legislation would likely not be introduced until Fall 2004.
7. What is the Alliance motion?
The Canadian Alliance party wanted to capitalize on the fear among MPs by forcing them to declare early whether they will vote for the legislation. On September 16, 2003 they reintroduced the Reform motion that passed on June 8, 1999, which stated that:
“marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.”
“All necessary steps” is code for the notwithstanding clause. This motion was narrowly defeated 137 – 132. This vote was a wake-up call to supporters of equal marriage, telling us that there is no guarantee that the government’s legislation will pass.
8. Why is it a Free Vote?
Egale believes that legislation like this, which is required to ensure that federal law is consistent with the Charter, should be government policy and should not be put to a free vote. The way the law treats a minority should not be subject to the will of the majority.
Unfortunately, however, the political reality is that neither Prime Minister Chrétien nor Paul Martin are even considering anything but a free vote.
That means we must convince each MP not only that voting for the legislation is the right thing to do, but in many cases must also overcome the fear that they will lose a significant number of votes in the next election if they do vote for it (or announce their intention to do so).
9. What other options are being considered by the federal government?
Prime Minister Chrétien has stated that no other options will be considered by the federal government. However, some opponents are suggesting that either an alternative partnership registry be set up for same-sex couples or that the government “get out of the marriage business” and leave marriage to religious institutions. Paul Martin has ruled out the former but not the latter. However the federal government does not have the jurisdiction to set up a comprehensive registry scheme, since it has no power over provincial laws (like family law, property law, health care and education).
Setting up an alternative partnership registry for same-sex couples is, as noted by the courts, a version of the “separate but equal” doctrine used to justify racial segregation in the United States. It would send the message that there’s something wrong with same-sex couples and with all LGBT persons. Since we can already marry in part of the country, it would represent a step backwards. Both the Prime Minister and Paul Martin have clearly stated this is not an option they will consider.
“Getting out of the marriage business” means abolishing civil marriage. As noted by the Prime Minister, instead of guaranteeing rights, this would take away rights. It would mean that heterosexual couples who do not want or cannot get a religious marriage would not be able to marry. They would only be able to register their partnerships. It is unclear whether these registrations would be recognized internationally. Same-sex couples could still get married by a supportive religious institution, such as the United Church.
10. What did the Justice Committee Recommend?
The Justice Committee voted to support the Ontario Court of Appeal decision extending equal marriage to same-sex couples. They did this after holding 27 hearings in Ottawa and across Canada. They heard from 467 witnesses. Of those witnesses, 58.7% supported equal marriage, 35.5% supported reserving marriage for opposite-sex couples, 1.7% supported reserving marriage for opposite-sex couples and creating a partnership registry for same-sex couples, and 1.1% supported abolishing civil marriage and leaving only religious marriage.
11. Will the Legislation pass?
Maybe. There are about 50 undecided MPs. In order to win we need most of them to vote in favour of the legislation. Egale believes that most of them do want to see the legislation pass, but the overwhelming number of messages from constituents opposing the legislation gives them great cause for concern.
If we are going to win, we are going to have to mobilize a great number of fair-minded Canadians. We’ve got to continue to get letters, phone calls and faxes sent to MPs.
For more info on what you can do, go to egale.ca and www.equal-marriage.ca. Find out how to contact your MP and other useful information.
12. My partner and I are in a registered domestic partnership, adult interdependent relationship, or civil union. Do I have to get married again?
Manitoba and Nova Scotia offers same-sex couples registered domestic partnership (RDPs), Alberta offers “adult interdependent partnerships” (AIPs), and Quebec offers civil unions. In the United States, Vermont offers civil unions, and other states recognise same-sex couples in various ways. Canada, however, has become the first jurisdiction in North America to extend full civil marriage to same-sex couples.
RDPs, civil unions and AIPs give couples many of the same rights and responsibilities as married couples. However, none of these models of relationship recognition is the same as marriage. Marriage is recognised across Canada and internationally, while generally speaking RDPs, AIPs and civil unions are recognised only in the province or state in which they are obtained.
Ultimately, whether or not you wish to marry is up to you. You should be aware, however, that RDPs, civil unions and AIPs are not the same as marriage and are not recognised as such.
13. Can Alberta or another province or territory use the notwithstanding clause to prevent same-sex couples from marrying?
The Alberta Legislature passed a law in 2000 which purports to restrict marriage to opposite-sex couples only. The Preamble to that law declares that it is designed to maintain marriage “in its purity” and the law invokes the constitutional “notwithstanding” clause in an attempt to prevent judicial scrutiny of the legislation. The ‘notwithstanding’ clause in the Constitution allows governments to enact legislation that declares it shall have effect notwithstanding certain provisions of the Charter of Rights. This means that provisions like the equality guarantees in the Charter of Rights cannot be used to invalidate otherwise valid legislation.
The ‘notwithstanding’ clause does not, however, empower a government to enact legislation which falls outside its constitutional jurisdiction. The Alberta legislation is almost certainly invalid, since the question of who can marry is one of exclusively federal jurisdiction. This question is one of the three Reference questions being asked of the Supreme Court (see above).
14. As a lesbian, gay man, bisexual or transgendered person, I’ve never really paid attention to what marriage means legally (after all, I didn’t have the right to marry until very recently!) Are there any legal implications of marriage that I should be aware of?
Pam MacEachern, a family law lawyer, has put together a document outlining several legal implications of marriage that, as a community that has never had access to the institution, we should all be aware of. The document is well worth a look for anyone thinking about getting married and can be found at http://www.nelligan.ca/e/hom_home.cfm
15. I want to get married! How do I actually go about doing it?
In Ontario, there are three steps to the marriage process.
You need to apply for a marriage license. Town and city halls in Ontario have been directed by the Ontario government to issue licenses to same-sex couples who meet the legal requirements for marriage. You can usually get your marriage license the same day you apply for it. The license is valid for 90 days, after which you would need to obtain another.
After the license is issued, you need to have the marriage solemnized by an authorized representative of the province. Representatives include clergy, justices of the peace in communities that still have them, and some others, such as representatives of the Humanist Association of Canada. Your town or city hall may be able to advise you better on the options that exist in your community. At the end of the solemnization ceremony, you are legally married.
Several weeks after the solemnization, the provincial or territorial government will mail you a marriage certificate. And that’s it!
NOTE: If either of you have been previously married, you need a certified copy of your divorce papers. If you were divorced outside of Canada, you need and a letter from an Ontario lawyer giving a legal opinion as to why your divorce should be recognised under Ontario law. Please ask for further information on this from the issuer of your marriage license. Egale Canada may be able to refer you to a queer-friendly family lawyer.
Also, see Ontario’s Application for a license:
http://www.cbs.gov.on.ca/pdf/org/11018_e.pdf, and http://www.cbs.gov.on.ca/mcbs/english/marriages.htm
16. Who is willing to perform weddings for same-sex couples?
The Metropolitan Community Church: see http://www.mccchurch.org/index2.htm ( locations in Barrie, Belleville, London, Toronto (including MCCT – see www.mcctoronto.com) and Windsor);
Many Unitarian Universalist Church ministers: see www.cuc.ca;
Authorized Representatives of the Humanists Association of Canada are able to perform same-sex civil marriages all over Ontario. See http://canada.humanists.net. Sheila Ayala, a contact person, can be reached at 613-739-9569 or 1-877-486-2671;
Some United Church ministers (check with your local United Church to see if they would be willing);
Also see a list of clergy who endorsed Egale’s Equal Marriage campaign at egale.ca/clergyendorse.asp. Most of these clergypeople will be delighted to perform weddings for same-sex couples or to refer you to someone else who can; and
Justices of the Peace (but check with your local civic administration; not all communities have them).
17. Will the United States recognise the marriages of same-sex couples performed in Canada?
Marriages of same-sex couples performed in Canada are now lawful marriages under Canadian law. Theoretically, all jurisdictions in the United States should give them the same recognition they would give any other Canadian marriage. However, the U.S. government’s 1996 “Defense of Marriage Act” is one impediment, as well as similar legislation in many states. In addition, a bill has recently been introduced in Congress to amend the U.S. Constitution. As noted by the Human Rights Campaign, “the language of the amendment is few in words but clear in its discrimination:
‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.’
This amendment must be passed by 2/3 of the House and Senate and ratified by 3/4 of the states in order to change the Constitution. It is a purposely difficult process. The amendment currently has 27 cosponsors in the House and while there is no Senate bill yet, Sen. Majority Leader Bill Frist recently spoke out in favor of this amendment. It is likely that a Senate companion bill will be introduced shortly.”
Further information may be available from the following organisations, which are currently working for the freedom to marry in the United States.
Freedom to Marry: (212) 851-8418, www.freedomtomarry.org
Human Rights Campaign: www.hrc.org
Gay and Lesbian Advocates & Defenders: (617) 426-1350, www.glad.org
Lambda Legal Defense & Education Fund: (212) 809-8585, www.lambdalegal.org
National Center for Lesbian Rights: (415) 392-6257, www.nclrights.org
ACLU Lesbian & Gay Rights Project: (212) 549-2627, www.aclu.org
Also, please take a look at a joint statement on this issue from all the above organisations at http://www.freedomtomarry.org/fmt_gettingmarried20030612.htm
Here is a statement on the recognition of marriages in the US from the organisation “Freedom to Marry:”
The general principle is that when you’re married, you’re married, and that’s because we don’t want people to have to litigate to find out if their family is still intact after a trip. Married same-sex couples deserve that same equal treatment, though for a period of time couples will face uncertainty, a patchwork of discrimination from some states, businesses, and the federal government, as well as respect by some states, businesses, and others who will honor these couples’ lawful marriages. Meanwhile, every day these couples will be role-modeling for their non-gay neighbors what a gay married couple really looks like, increasing the already growing support for ending discrimination in civil marriage here in the US.
We should remind viewers of the strong, general reasons American and international law has a presumption of respect — that marriages valid where celebrated are respected everywhere, even if they wouldn’t be performed here:
couples shouldn’t have to litigate to find out if their marriage is intact when they travel
kids shouldn’t have to worry if their parents are still married when they come home from a trip
banks, businesses, and others shouldn’t have to wonder whether their contracts with a couple are still binding
The right-wing is trying to carve gay people and our marriages out of this general principle of respect, and now the American people have a chance to see whether it’s fair or wise to discriminate against our families that way. When a couple is married, shouldn’t they, indeed, be respected as married? When American couples travel from now on, don’t we want other countries to respect their marriages?
Americans should not have to once again take the underground railroad to Canada to get the equal rights we all deserve here at home.