SUPREME COURT SAME SEX MARRIAGE REFERENCE : WHAT ARE THE
IMPLICATIONS FOR CHURCHES AND RELIGIOUS OFFICIALS?
By Terrance S. Carter, B.A., LL.B., Trade-mark Agent and
Mervyn F. White, B.A., LL.B.
Assisted by Anne-Marie Langan, B.A., B.S.W., LL.B.
The Courts in seven provinces including Ontario,
British Columbia, Quebec, the Yukon Territories, Nova Scotia,
Manitoba, Saskatchewan, and most recently Newfoundland, have
ruled that the common law recognition of marriage as "the
voluntary union for life of one man and one woman, to the
exclusion of all others"1
violates s.15(1) of the Canadian Charter of Rights and
because it has the effect of limiting the right of gay and
lesbian couples to marry.3
Instead of appealing these decisions, the federal government
decided to introduce new legislation, which at this time is
entitled Proposal for an Act Respecting Certain Aspects
of Legal Capacity for Marriage for Civil Purposes (the
This Proposed Act would have the effect of recognizing the
rights of same- sex couples to marry across Canada. The operative
provisions of this Proposed Act are as follows:
1. Marriage, for civil purposes,
is the lawful union of two persons to the exclusion of all
2. Nothing in this Act affect
the freedom of officials of religious groups to refuse to
perform marriages that are not in accordance with their
Rather than introducing this Proposed Act in
Parliament, the Attorney General sent a reference to the Supreme
Court of Canada entitled Reference Re Same Sex Marriage
asking the Supreme Court the following questions:
1. Is the annexed Proposal
for an Act respecting certain aspects of legal capacity
for marriage for civil purposes within the exclusive
legislative authority of the Parliament of Canada? If not,
in what particular or particulars, and to what extent?
2. If the answer to question
1 is yes, is section 1 of the proposal, which extends capacity
to marry to persons of the same sex, consistent with the
Canadian Charter of Rights and Freedoms? If not,
in what particular or particulars, and to what extent?
3. Does the freedom of religion
guaranteed by paragraph 2(a) of the Canadian Charter
of Rights and Freedoms protect religious officials from
being compelled to perform a marriage between two persons
of the same sex that is contrary to their religious beliefs?
4. Is the opposite-sex requirement
for marriage for civil purposes, as established by the common
law and set out for Quebec in section 5 of the Federal
Law-Civil Law Harmonization Act, No. 1, consistent with
the Canadian Charter of Rights and Freedoms? If not,
in what particular or particulars and to what extent?
This Church Law Bulletin summarizes the
Supreme Court's decision, handed down on December 9, 2004,
to these questions as contained in the Reference. The Bulletin
will also attempt to describe what consequences this decision
and the Proposed Act might have on churches and religious
officials who are opposed to same sex marriage. Recommendations
will then be provided about what these churches and religious
officials can do in response to the Reference and the Proposed
B. FINDINGS OF THE COURT
In the Reference, the Supreme Court of Canada
answered the four questions outlined above as follows:
1. Is the Proposed Act Within the Exclusive
Legislative Authority of the Parliament of Canada?
The Supreme Court defined the issue before it
as being whether the "Pith and Substance" of the
Proposed Act falls within one of the powers of the federal
government as outlined in s.91 of the Constitution Act.7
The Supreme Court concluded that the "Pith and Substance"
of s.1 of the Proposed Act is to define the legal capacity
to marry and to ensure that "civil marriage as a legal
institution is consistent with the Charter."8
The Supreme Court confirmed that Parliament is granted the
authority to define marriage by virtue of s.91 (26) of the
Constitution Act which states that the federal government
has the exclusive authority to legislate matters that have
to do with "Marriage and Divorce."
Certain interveners in the Reference argued
that it is not within the powers of the federal government
to legislate about the definition of marriage, since marriage
was not defined by the common law: the common law was merely
recognizing the existence of marriage, the existence of which
pre-dates the common law recognition of it. In response to
this argument, the Supreme Court drew an analogy to the Persons
case which warned against allowing customs to become rooted
in the law, "long after the reason for them has disappeared"
and stands for the proposition that the Constitution is a
"living tree" which needs to grow with the times.9
Without directly addressing the issue of whether it is within
Parliament's constitutional powers to redefine marriage, the
Supreme Court concluded that since society's perception of
marriage has changed over the years to include many different
kinds of couples, it cannot be said that "marriage"
in s.91(26) of the Constitution Act, 1867, read expansively,
excludes same sex marriage."10
In contrast, the Supreme Court found that s.2
of the Proposed Act was ultra vires the powers of Parliament
by virtue of the fact that s.92(12) of the Constitution Act
gives the provinces exclusive jurisdiction over "the
solemnization of marriage in the Province." Consequently,
the federal government cannot create an exemption to existing
solemnization requirements. Conversely, the provincial power
over the solemnization of marriage does not confer on the
provincial government the jurisdiction to make decisions about
same sex marriage, since solemnization is consequential to
the right to marry.
The Supreme Court rejected an argument made
by intervening parties to the Reference, that, based on the
reasoning in Hyde v. Hyde,11
the definition of marriage as being between a man and a woman
is entrenched in the Constitution Act. Instead, the Supreme
Court took what they called a "large and liberal, or
progressive" approach to interpreting the constitution
and concluded that, "Marriage, from the perspective of
the state, is a civil institution" and that there is
nothing in the Constitution Act which would preclude
2. Does the Proposed Act Violate the Charter
of Rights and Freedoms?
The Supreme Court then responded to arguments
made by intervening parties that the Proposed Act violates
s.15(1) and s.2(a) of the Charter. Some interveners argued
that the Proposed Act violates the equality provision in s.15(1)
of the Charter as it has the effect of discriminating against
religious groups who disagree with same-sex marriage and opposite-sex
married couples. The Supreme Court's response to this question
was that "the mere recognition of the equality rights
of one group cannot, in itself, constitute a violation of
the rights of another."13
The same reasoning was used by the Supreme Court when rejecting
the argument that the Proposed Act infringes the guarantee
of freedom of religion under s.2(a) of the Charter.14
3. Does the Proposed Act Provide Protection
for Religious Officials Who Do Not Believe in Same Sex Marriage?
The Supreme Court then attempted to address
the argument that the Proposed Act might create an impermissible
collision of rights between the rights of same-sex couples
who want to marry and the rights of those who are against
same sex marriage because of their religious beliefs. Intervening
parties pointed out that this conflict would be particularly
acute for clergy and other religious officials who do not
believe in same-sex marriage and do not want to perform them.
The Supreme Court's response to this was as follows:
The right to freedom of religion
enshrined in s. 2(a) of the Charter encompasses the right
to believe and entertain the religious beliefs of one's
choice, the right to declare one's religious beliefs openly
and the right to manifest religious belief by worship, teaching,
dissemination and religious practice: Big M Drug Mart, supra,
at pp. 336-337. The performance of religious rites is
a fundamental aspect of religious practice. It therefore
seems clear that state compulsion on religious officials
to perform same-sex marriages contrary to their religious
beliefs would violate the guarantee of freedom of religion
under s. 2(a) of the Charter. It also seems apparent that,
absent exceptional circumstances which we cannot at present
foresee, such a violation could not be justified under s.
1 of the Charter [emphasis added].15
However, the Supreme Court noted that since
the federal government has no constitutional authority to
regulate the solemnization of marriage, it would be up to
the provincial governments to pass legislation that would
protect the rights of religious officials to not perform same
sex marriages if this is contrary to their beliefs, while
at the same time allowing for same-sex marriage. The Supreme
Court also commented that the provincial human rights commissions
should interpret their human rights codes in such a way as
to provide protection for religious freedom in this regard.
Therefore, it may be some time before the practical extend
of the protection provided by this decision to religious officials
who do not support same sex marriages is known, and may ultimately
require that human rights challenges be brought by those who
feel that their religious freedom is being limited.
4. Is the Definition of Marriage as Being
Between a Man and a Woman Unconstitutional?
The Supreme Court stated that it was exercising
its jurisdiction to refuse to answer this question because,
in its opinion, it would be "unwise and inappropriate"
to do so.16 However, the
Supreme Court pointed out that courts in five provinces (now
seven) have already declared that the definition of marriage
as being between a man and a woman is unconstitutional and
that the Attorney General of Canada had conceded after each
of these decisions that the common law definition of marriage
violated s.15(1) of the Charter. As a result, same-sex couples
in these provinces have relied on these decisions and have
gotten married, thinking that their marriages would be recognized
by the federal government as being legal. According to the
Supreme Court, therefore, this issue has "already been
disposed of in lower courts."17
It seems, therefore, that the Supreme Court's refusal to answer
this question is premised on the fact that they feel that
this question has already been conclusively answered in the
affirmative by the lower courts.
C. IMPLICATIONS OF THIS CASE FOR CHURCHES AND
OTHER RELIGIOUS GROUPS
Many Canadian Churches and religious groups
who are opposed to same sex marriage are anxious about the
possible consequences of legalizing same sex marriage for
their clergy and their members. One of their main concerns
is that clergy and churches will be forced to conduct same-sex
weddings even though this may be contrary to their religious
beliefs and church teachings.18
Section 2 of the Proposed Act was an attempt
by the federal government to address this concern by including
an explicit statement that the Proposed Act would not affect
the freedom of religious officials to refuse to perform marriages
that are not in accordance with their religious beliefs. As
discussed above, in the Reference the Supreme Court ruled
that section 2 of the Proposed Act is ultra vires parliament
and stated that it was up to the provincial governments to
provide protection for clergy with respect to matters relating
to the solemnization of marriage and as such the federal government
could not legally provide such an exemption. As such, no protection
could be provided in the Act.
It should be noted, however, that the Reference
may provide some protection to clergy and churches who are
opposed to same sex marriage, as the Supreme Court therein
explicitly stated more than once in its decision that any
form of state compulsion that serves to force a religious
official to perform a same sex wedding when such a wedding
is contrary to the tenets of his or her faith would violate
s.2(a) of the Charter and could not be justified under section
1. The same principle is applied to the use of sacred places
for the celebration of same sex marriages. The Supreme Court
distinguishes between "civil marriage" and "religious
marriage" and explicitly states that "the Proposed
Act is limited in its effect to marriage for civil purposes"
and "cannot be interpreted as affecting religious marriage
The Reference also directs provincial governments and human
rights commissions to legislate and interpret their respective
provincial legislation accordingly.
Now that the Supreme Court has confirmed that
the definition of civil marriage includes same sex marriage,
each province is responsible for enacting legislation and
creating policies concerning the solemnization of same sex
civil marriages. Some provinces, such as Manitoba and Saskatchewan
have instituted policies that marriage commissioners must
perform same sex civil marriages if they want to keep their
licenses, whereas other provinces, like New Brunswick, are
enacting legislation which explicitly allows those who would
normally be required to perform same sex marriages when they
are legalized, to opt out of performing them if they are opposed
to same sex marriage. The current policy in British Columbia
is that marriage commissioners can opt out of performing same
sex marriages as long as they refer the same sex couple to
a person who will perform the ceremony for them. This has
resulted in the resignation of twelve marriage commissioners
who were opposed to same sex marriages. Two marriage commissioners
from Manitoba have also quit their jobs because of the new
policy concerning same sex marriage and have filed human rights
complaints.20 It will be
interesting to see how the Manitoba Human Rights Commission
deals with these complaints. Will they find that the Manitoba
government's policy concerning marriage commissioners is discriminatory
on the grounds of religion, as was suggested in the Reference?
The Supreme Court warns that the protection
of religious freedom expressed in s.2(a) of the Charter may
be limited to situations where the state is involved, since
the Charter only applies to State action.21
As well, churches and other religious groups may be limited
from asserting a Charter right by the principle expressed
in several cases that "freedom of religion and conscience
does not extend to a corporation."22
Another related concern of some churches and
some clergy that oppose same sex marriage is that by legalizing
same sex marriage the federal government is establishing "a
particular ideological opinion as a universal and binding
norm" and that consequently all those who are not in
agreement with this ideological opinion will be socially ostracized.
For example, in their factum for the Reference, the Canadian
Conference of Catholic Bishops express a concern that,
Once this social and moral
orthodoxy is established, it would be a small step to remove
charitable status and other public benefits from individuals,
religious groups, or affiliated charities who publicly teach
or espouse views contrary to this claimed orthodoxy.23
In response to this concern, the Supreme Court
denied that it was possible for the conferral of rights upon
one group to constitute the violation of rights of another
and that this "alleged collision of rights is purely
abstract," and that the scope of Charter rights cannot
be decided in the absence of an actual fact situation. Despite
their denial that the Proposed Act might cause a conflict
of Charter rights, the Supreme Court went on to say that in
the event such a conflict occurred, "the jurisprudence
confirms that many if not all such conflicts will be resolved
within the Charter, by the delineation of rights prescribed
by the cases relating to s.2(a)."24
This finding that "the right to religious
freedom enshrined in s.2(a) of the Charter is expansive"25
is echoed in the recent Supreme Court of Canada decision Syndicat
Northcrest v. Amselem ("Amselem") wherein the
majority found that,
Regardless of the position
taken by religious officials and in religious texts, provided
that an individual demonstrates that he or she sincerely
believes that a certain practice or belief is experientially
religious in nature in that it is either objectively required
by the religion or that he or she subjectively believes
that it is required by the religion, or that he or she sincerely
believes that the practice engenders a personal, subjective
connection to the divine or the subject or object of his
or her spiritual faith and as long as that practice has
a nexus with religion, it should trigger the protection
of ..s.2(a) of the Charter.26
The Amselem decision makes it clear that the
s.2(a) Charter right of freedom of religion includes the right
to hold a particular opinion based on your religious beliefs
whether or not this belief is the official doctrine of your
However, in several recent s.2(a) cases, the
Supreme Court has warned that, "The freedom to exercise
genuine religious belief does not include the right to interfere
with the rights of others."27
This principle was applied in Ontario Human Rights Commission
v. Brillinger which involved a complaint that was made
by the Canadian and Lesbian Gay Archives against a printer,
Scott Brockie, for refusing to print one of their pamphlets
which contained material that Mr. Brockie objected to because
of his religious beliefs. In this case the Ontario Superior
Court found that,
Limits on Mr. Brockie's right
to freedom of religion in the peripheral area of the commercial
marketplace are justified where the exercise of that freedom
causes harm to others; In the present case, by infringing
the Code right to be free from discrimination based on sexual
orientation in obtaining commercial services.28
One implication of these decisions is that while
it would appear to be permissible to hold a discriminatory
opinion, it would not appear to be permissible to discriminate
against someone because of that view in the provision of goods,
services and facilities to the public. In the Brillinger
decision the court also warns that "the further the activity
is from the core elements of the freedom [of religion], the
more likely the activity is to impact on others and the less
deserving the activity is of protection."29
On the other hand, the human rights objective
of ensuring that groups are provided services and facilities
should be balanced against the right to freedom of religion
and conscience. An argument could be made that if the provision
of a service or facility conflicts with a core religious belief
of an individual or religious group, he, she or it should
not be forced to provide it. Consequently if a religious official
or church is opposed to same sex marriage, that official or
church could argue that they should not be forced to perform
a civil same sex marriage, allow such a marriage to be performed
on their premises or to make a referral regarding a same sex
marriage as this would conflict with one of their core religious
beliefs or that it would be no different from being forced
to advance such a lifestyle.
The same sex marriage decisions have all held
that the definition of marriage as the "union of one
man and one woman" is unconstitutional. It is therefore
possible that, if a cleric or a religious person who is a
licensed marriage commissioner and is opposed to same sex
marriage was challenged for refusing to perform a civil same-sex
wedding, a court might find that this person has crossed the
line between holding a discriminatory view and discriminating
against someone by refusing to provide a public service to
them, and as a result the cleric or religious person could
be found to have violated a human rights code. It is also
possible that a church or religious group, who normally makes
its premises available to the general public for many different
purposes and activities and charges for the use of their facilities,
and then refuses to rent out that premise to a gay or lesbian
couple for the purposes of celebrating a civil same sex marriage,
could be found to be discriminating in the provision of a
facility. There is no explicit defence based on having a bona
fides reason for the discrimination in the Human Rights
Codes of many provinces, including Ontario, when it comes
to the provision of goods, services and facilities, which
means that a conscientious objector can only rely on the Charter
right to freedom of religion as a defence. It is not clear
whether the protection afforded by s.2(a) of the Charter would
protect a marriage commissioner who is opposed to same sex
marriage from having to perform a civil same sex marriage
ceremony or, as in B.C., having to refer the same sex couple
to another person who can perform the marriage, or would protect
a church who rents out its facilities to many different groups
but wants to refuse to rent it out for the purposes of hosting
a same sex marriage.
Given that the Supreme Court has now made it
clear that same sex couples have the legal right to civil
marriage and that it is not yet clear what protections, if
any, will be available to religious officials or churches
who are opposed to same sex marriage in any provincial legislation
that is passed regarding the solemnization of civil same-sex
marriages, churches would be wise in the meantime to heed
the advice contained in a Bulletin published by Carter and
Associates in December 2003 entitled "Same Sex Marriage:
What Churches and Religious Organizations Can do In Response."30
The Bulletin explains that courts have generally
recognized the existence of and the right of a church to fulfill
its religious objectives, but warns that churches must ensure
that their identity is adequately articulated within the civil
law context so that it can be protected at civil law. Churches
should, if at all possible, undergo a legal audit whereby
a lawyer would review the church's constitutional documents
to ascertain whether they meet with applicable legal requirements.
Other steps that churches and religious groups can take include:
Clearly articulating its adherence to
a literal and/or orthodox interpretation of scripture
and reflecting this in its constitutional documents.
Developing a clear policy statement with
regards to the church's beliefs and teachings about marriage
which could contain a statement recognizing marriage as
a holy sacrament or institution of the church and defining
marriage as being between one man and one woman in accordance
with the church's statement of faith and having this policy
reviewed by legal counsel.
Avoiding any statements that could be
construed as promoting hatred against an identifiable
group and instead drafting all policy statements using
neutral wording and avoiding negative or pejorative language
against any identifiable group.
Enforcing any policies in a consistent
Defining its membership and discipline
procedures and requiring that any individuals who are
involved in church ministries or programs and any church
employees should also be members.
Restrict the use of any services offered
by the church and facilities owned by the church to church
members for purposes relating to the Church's charitable
Educating clergy and members about the
legal rights of clergy and of churches.
Many of the larger denominations have already
discussed these issues with their legal counsel and developed
clear policies about marriage. An article entitled "Same
Sex Marriage in Canada," which can be found at www.ecumenism.net,
provides a useful review of some of these church policy statements.
It would be prudent for all religious groups who are opposed
to same-sex marriage to follow suit and to carefully re-evaluate
their constitution and operating policies in consideration
of the potential impact of the Proposed Act and of the provincial
legislation which will almost certainly ensue.
It is clear from the reference that it is within
the constitutional powers of the federal government to change
the common law definition of marriage to the definition contained
in the Proposed Act, namely, "the lawful union of two
persons to the exclusion of all others", whereas the
solemnization of marriage is within the scope of provincial
powers and the federal government cannot create a legislative
protection for religious officials who are opposed to same
sex marriage from being forced to perform civil same sex marriages.
In the Reference the Supreme Court Justices assure us that
the freedom of religion as guaranteed in s.2(a) of the Charter
is expansive and extends far enough to provide protection
to religious officials from being forced to perform same sex
marriages and to churches from having to allow same sex marriages
to take place in their places of worship.
The practical implications of this decision
are still unclear. One of the questions that remains unanswered
is whether marriage commissioners who are opposed to same
sex marriage on religious grounds can lose their license for
refusing to perform a same sex marriage ceremony. It is also
impossible to tell what other practical effects the legalization
of same sex marriages will have on religious groups who are
opposed to same sex marriage now that the Supreme Court has
made it clear that such views run contrary to Charter values.
Given these uncertainties it would be prudent for religious
groups to clearly articulate their policies and beliefs concerning
marriage and to undergo a legal audit to ensure that the group's
policies, by-laws and publications conform as closely as possible
with legal requirements and are not unnecessarily discriminatory.
1 Hyde v. Hyde (1866), L.R. 1 P.
&D. 130 at p.133.
2 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution
Act, 1982, being Schedule B to the Canada Act, 1982(U.K.),
3 Equality for Gays and Lesbians Everywhere v. Canada 
B.C.J. No.994 (B.C.C.A.); Halpern v. Canada (Attorney General),
 O.J. No. 2268 (O.C.A.); Hendricks v. Quebec (Attorney
General) J.Q. No. 3816 (Q.C.A.); Dunbar v. Yukon 
Y.J. No.6.1; Vogel v. Canada (Attorney General)  M.J.
No. 418; Boutilier v. Nova Scotia (Attorney General) 
N.S.J. No. 357; N.W. v. Canada (Attorney General)  S.J.
4 Proposal for an Act respecting certain aspects of legal
capacity for marriage for civil purposes, Order in Council
P.C. 2003-1055, Preamble, ss.1,2. ("Proposed Act")
5 Supra, note 4.
6 Reference re Same Sex Marriage,  S.C.J. No. 75.
7 Constitution Act, 1867, s.91
8 Supra note 6 at para 42.
9 Reference re: Meaning of the word "Persons" in
s.24 of the British North America Act,  A.C. 124 (P.C.)
10 Supra note 6 at para 25.
11 Supra note 1 at p.133.
12 Supra note 6 at para.23 and 29.
13 Ibid at para.46.
14 Ibid at para 48.
15 Ibid at para 57 and 58.
16 Ibid at para 64.
17 Ibid at para 61-71 with quote at para.68.
18 See Same Sex Marriage in Canada at http://www.ecumenism.net/news/marriage.htm
19 Supra note 6 at para 55.
20 Campbell Clark, "Prairie Officials compelled to perform
gay marriages" The Globe and Mail December 18, 2004.
21 Ibid at para 55.
22 Brockie v. Ontario (Human Rights Commission),  O.J.
No. 2375; R. v. Big M. Drug Mart Limited (1985), 18 D.L.R.
23 William J Sammon, Factum of the Intervener: The Canadian
Conference of Catholic Bishops.
24 Supra note 6 at para 52.
25 Supra note 6 at para.50.
26 Syndicat Northcrest v. Amselem,  S.C.J. No. 46, 2004
SCC 47. also see case comment entitled "Supreme Court
of Canada Adopts Broad View of Religious Freed" in Chartiy
Law Bulletin No.51 available at www.carters.ca.
27 Trinity Western University v. British Columbia College
of Teachers (2001), 199 D.L.R. (4th) 1 (S.C.C.); also see
R. v. Big M Drug Mart  1 S.C.R. 295 at 336-37 and Ross
v. New Brunswick School District No. 15  1 S.C.R. 825.
28 Ontario (Human Rights Commission) v. Brillinger 
O.J. No. 2375.
29 Ibid at para.51.
30 Church Law Bulletin No.1 which is available on our website