A rchive Date
[ 07-10-2003 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
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[http://cnews.canoe.ca/CNEWS/Law/2003/10/06/218959-cp.html
Top court urged to rule on marriage issue
By SUE BAILEY
Mon, October 6, 2003
OTTAWA (CP) - Religious and family groups urged the country's highest court Monday to weigh whether traditional marriage is unconstitutional.
Changing the definition of marriage is too profound a social issue to be left up to lower courts or a divided Parliament, lawyers for the conservative groups argued. In effect, the coalitions sought to appeal an Ontario Court of Appeal judgment allowing same-sex marriage after the federal government refused to do so. A five-judge Supreme Court of Canada panel reserved judgment, and won't likely release its decision for several weeks.
"This is the most pressing constitutional issue that people are asking about," said Peter Jervis, lawyer for the Interfaith Coalition on Marriage and the Family. "There is confusion. What is the constitutional requirement in this country?"
The federal government only moved to redefine the century-old definition of marriage - the union of one man and one woman - because courts in Ontario, B.C. and Quebec ruled that excluding same-sex couples violates equality rights, Jervis said. The Supreme Court, the ultimate interpreter of the Constitution and how laws should conform, is best suited to settle a fundamental issue, he argued.
Rather than appealing the lower court decisions, the Liberal government drafted legislation to legalize same-sex marriage and sent the bill to the Supreme Court for its opinion.
Once the high court offers its advice sometime next year, Ottawa will introduce legislation making Canada the world's third country to allow same-sex marriage. That would still leave a crucial question unsettled, Jervis said, because Ottawa has not asked the high court whether the old definition was unconstitutional.
Lawyers representing groups in favour of same-sex marriage argued the clock can't be turned back.
More than 1,000 gay and lesbian weddings have now been performed, said Martha McCarthy, representing seven same-sex couples. She also stressed that the coalitions were not a losing party in the original case and should not be allowed to appeal to the high court. "It seems particularly egregious that an interest group can use the system in this way."
McCarthy called the bid a bad-faith effort to invent a legal basis for a case that's really about trying to stop social change.
Ottawa fought same-sex marriage for years, but changed its tune after court losses in Ontario, B.C. and Quebec. Last month, the Liberals narrowly defeated a motion by the Canadian Alliance to reaffirm the traditional definition of marriage.
Prime Minister Jean Chretien has said same-sex marriage legislation will be put to a free vote in the House of Commons, but he is due to retire by February - likely before the bill is introduced. His successor, Paul Martin, supports same-sex marriage but has not guaranteed the bill will stay in its current form.
In its reference to the Supreme Court, the federal government has put three specific questions to ensure its same-sex legislation can stand up in court.
- The high court is asked to clarify federal-provincial marriage duties. It's an attempt to forestall Alberta or any other province from refusing to hand out marriage licences to same-sex couples. While the federal government sets rules deciding who gets to marry, the provinces are in charge of issuing licences. Alberta says it won't do the paperwork for gay and lesbian couples.
- The court is asked about each religion's right to solemnize marriage as it sees fit. With this question, the government is trying to snuff out future court challenges that could force mosques, synagogues and churches to perform such weddings against their beliefs.
- The final question asks whether the draft legislation respects the Charter of Rights and Freedoms.
 World Fact Book (CIA)]
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