Ottawa Confirms Support
For Same-Sex Marriages

by Kirk Makin
Wednesday, Oct 6, 2004
Globe & Mail

The federal government will bring a same-sex-marriage bill before Parliament the moment the Supreme Court of Canada gives it the go-ahead, Justice Minister Irwin Cotler said.

Speaking in an interview just hours before the Supreme Court is to commence a three-day hearing in a major reference case, Mr. Cotler said neither he nor his government have ever wavered in their desire to see same-sex marriage become law.

He said he was shocked by prominent, published reports over the weekend suggesting that a secret plan had been hatched to delay the same-sex legislation until the fall of 2005 -- in spite of the government's purported belief that the Supreme Court will reach a quick ruling.

"Nothing has changed," Mr. Cotler said. "There is no ambiguity. There is no equivocation. . . . We are very clear that we are in support of extended civil marriage for gays and lesbians, anchored in the principle of equality."

Mr. Cotler was adamant that the supposed plan -- which was attributed to a leaked cabinet document -- could not have gone before cabinet without his knowledge.

"Frankly, I don't know where it came from, because it's nothing that ever passed by me," he said. "I know some references were made in a newspaper report to a cabinet document, but I never saw it."

Should the Supreme Court decide that the government's proposed legislation passes constitutional muster, Mr. Cotler said, it will be full-steam ahead.

Twenty-seven intervenors -- religious groups, gay-rights groups and provincial governments -- are scheduled to make legal arguments at the historic reference case.

The reference came about after three provincial appellate courts -- in Ontario, B.C. and Quebec -- struck down a common-law definition of marriage as being the union of a man and a woman.

The federal government decided not to appeal the ruling. Instead, it drafted four questions it hopes will clarify the constitutional status of proposed legislation that would make same-sex marriage legal.

Since the appellate rulings, courts in Nova Scotia, Manitoba and the Yukon have reached similar decisions. While the litigation was going on, hundreds of gay and lesbian couples took advantage of the situation to get married.

The Justice Minister said he has learned from experience never to speculate about the possible timing of a Supreme Court ruling, but that once the ruling comes, "we will move with all deliberate speed to introduce legislation in the House.

"Full-steam ahead means, of course, discussion and debate -- like with any other legislation. But there is no backing away and there is no dilatory approach to it.

"In fact, if anyone cares to look at our factum of legal argument -- presented by one of the most distinguished constitutional lawyers in the country, Peter Hogg, he is very clear on each of the issues. There is no ambiguity."

The Supreme Court is expected to affirm the constitutionality of the proposed legislation, given its strong record of supporting litigants using the Charter of Rights equality clause to assert rights.

While the court typically takes six to eight months to render difficult or significant judgments, this can vary substantially in a given case.

The court is being asked four questions in the reference. The first asks whether the law is within Ottawa's constitutional jurisdiction. The second asks if it is consistent with equality guarantees in the Charter. The third involves whether the Charter protects the right of religious officials to refuse to perform same sex marriages.

The final question, which was added last spring to the reference, asks whether the existing opposite-sex requirement for civil marriage complies with Charter guarantees.

The same-sex marriage issue is as divisive in the ranks of parliamentarians as it is among the general public, giving rise to considerable speculation recently about how it will be handled by the Liberal minority government.

On a motion dealing with same-sex marriage last year, more than 50 Liberals voted to retain the existing definition of marriage as a union between a man and woman.