The Quebec Marriage Judgment

September 6, 2002

Overview

The Court concluded that the opposite-sex definition of marriage is discriminatory and cannot be justified under s.1 of the Charter. The Court declared the opposite-sex definition of marriage unconstitutional, and suspended its declaration for 2 years to give Parliament a chance to act.

Excerpts from the judgment

“Choosing with whom you will create a life is a fundamental characteristic of being an adult.”

“In Quebec, the applicants have been able, since July 2002, to solemnise their relationship by entering into a civil union, which provides all couples with similar rights and responsibilities. But they are still denied access to marriage, which is an important societal institution.”

“As judge Linden noted in the Egan case:

One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctrine. That appalling doctrine must not be resuscitated in Canada four decades after its much heralded death in the United States.”

On the procreation issue, “We don’t deny marriage to elderly women!”

“For the applicants, marriage represents the total and complete recognition of the deepest commitment that two members of a couple can have for one another. Marriage confers a social status.”

“For these reasons, the Court concludes that the definition of marriage creates a discriminatory distinction by excluding same-sex couples. Bearing in mind all the contextual factors, this distinction undermines human dignity and denies the applicants’ equality rights under s.15 of the Charter.”

“No-one would deny that religions have played an important role in marriage—indeed, their beliefs and their rites have framed the institution. The secularization of marriage, however, requires government to recognize that the institution is a civil one, and cannot be defined exclusively by religion. We are no longer living in the homogeneous society of a century ago. Multiculturalism, diverse religious beliefs, and the secularization of many societal institutions all testify to the openness of Canadian society. The State must ensure respect for each citizen, but no group has the right to impose its values on others or define a civil institution. The Hon. Judge Dickson in the Big M Drug Mart case wrote: ‘the Charter protects religious minorities against the threat of the ‘tyranny of the majority.’’”

“The Attorney General of Canada hasn’t proved that allowing same-sex couples to marry would affect the rights of heterosexuals or devalue the civil institution [of marriage]. In all fairness, the Attorneys General did not argue that a new definition of marriage would threaten the peace or public order. They recognized that same-sex couples can have committed unions within which they create families that deserve consideration by the State.

The Attorney General of Canada has not satisfied the first limb of the justification test established by the Oakes case. It has not convinced the Court that its legislative objective is sufficiently important to justify denying the applicants’ equality right to have access to the civil institution of marriage.”

“Must marriage be redefined to include same-sex couples, or would it be more appropriate for the federal government to create a new civil institution?

With respect to those who think differently, the Court concludes that it is for the Legislature—and not the Court—to choose the appropriate means of correcting the discriminatory nature of s.5 of the Harmonization Act.

The Legislature has already been put on notice that there is no consensus about the criterion of heterosexuality. Such reforms take time, and one cannot strike down the only definition of marriage, leaving an indefinite legal vacuum while we wait for Parliament to choose its approach. Taking into account the nature of the right being denied and the whole of the context, the Court grants Parliament a 24-month delay, and therefore suspends its declaration of invalidity for this period.”

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