CBC News in Review • September 2004 • Page 30

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CBC News in Review • September 2004 • Page 30
Focus
This News in Review
feature focuses
on the debate
over same-sex
marriages in
Canada. In June
2003 the Ontario
Court of Appeal
ruled that Canada’s
marriage laws
violated the Charter
rights of samesex
couples hoping
to marry—echoing
previous rulings
from courts in B.C.
and Quebec. The
decision set off a
flurry of debate as
the government
decided not to
appeal the ruling
and proceeded
with legislation
recognizing samesex
marriages.
Sections
marked with this
symbol indicate
content suitable for
younger viewers.
YV
CANADA DEBATES SAME-SEX MARRIAGE
Introduction
On June 10, 2003, Chief Justice Roy
McMurtry, Mr. Justice James
MacPherson, and Madam Justice Eileen
Gillese delivered a historic judgement.
After methodically demonstrating how
Canada’s existing marriage laws violated
the equality rights of gays and
lesbians under the Charter of Rights and
Freedoms, the Ontario Court of Appeal
ruled that Canada’s marriage law
“demeans the dignity of same-sex
couples” and is “contrary to the values
of a free and democratic society” (The
Globe and Mail, June 11, 2003). Then
the justices ordered that the definition
of marriage be changed to “the voluntary
union for life of two persons to the
exclusion of all others.” They also
directed Toronto’s city clerk and the
provincial registrar-general to accept
the marriage licences of two gay
couples married in 2001 under the
Christian tradition of publishing banns.
Within hours, Michael Leshner and
Michael Stark, one of the couples that
figured prominently in the court case,
were married in front of 50 friends at a
ceremony in Toronto City Hall. Leshner
said his “absolute faith in Canadian
values” proved instrumental in his
decision to persevere in the court battle
to earn marriage rights for gays and
lesbians.
While the courts had ruled in favour
of same-sex marriage in previous
rulings in British Columbia and Quebec,
the Ontario ruling called for immediate
action on the part of government.
Most provincial justice ministers accepted
the ruling and indicated that they
would abide by the decision of the
Ontario court. One provincial government—Alberta—vowed
to use everything
in its power to oppose same-sex
marriage. Premier Ralph Klein told
reporters, “If there is a move to sanctify
and legalize same-sex marriage as legal,
we will use the notwithstanding clause,
period, end of story.” In other words,
Klein let all of Canada know that he
was willing to turn to the rarely used
notwithstanding clause of the Charter of
Rights and Freedoms to exempt Alberta
from federal legislation having to do
with same-sex marriage.
On June 17, federal Justice Minister
Martin Cauchon announced that the
government would not appeal the
Ontario court’s decision and revealed
the wording of draft legislation that
would allow gay couples to marry.
Cauchon said, “It’s a question of dignity.
It’s a question of equality. And I
sincerely believe that the government is
going in the right direction” (Toronto
Star, June 17, 2003).
In order to ensure successful implementation
of the legislation, Cauchon
sent the draft bill to the Supreme Court
of Canada for review. It has been asked
to evaluate the legislation on the basis
of the authority of the federal government
to legally define marriage, the
compatibility of the act with the Charter
of Rights and Freedoms, and whether
the Constitution protects religious
leaders who choose not to sanctify
same-sex marriages. It is expected that
the Supreme Court of Canada will have
their review prepared by early 2004.
After that, the bill will be voted on in
the House of Commons.
The decision to formally legalize
same-sex marriages has been the source
of heated debate. Those favouring
same-sex marriages see the legislation
CBC News in Review • September 2004 • Page 31
Under section 33 of
the Charter (sometimes
called the
“notwithstanding
clause”), Parliament
or a legislature
can make a
particular law
exempt from
certain sections of
the Charter—the
fundamental
freedoms (in section
2), the legal
rights (in sections 7
to 14) and the
equality rights (in
section 15). However,
a law that
limits Charter rights
under the notwithstanding
clause
expires after five
years. This clause is
used very rarely.
Source:
www.pch.gc.ca/
charter-anniversary/
index_e.cfm
as the next step along the road toward
equal civil rights for gays and lesbians.
To many, it is an endorsement of equal
rights for all Canadians, regardless of
sexual orientation. The side opposed to
same-sex marriages has taken the
position that marriage is a key institution
in building society, both in a procreative
sense and from the perspective
of family values. They see no need to
redefine marriage, regardless of what
the courts are saying. Some suggest that
if the government wants to introduce a
“civil union” for same-sex partners that
would be fine—just don’t call it marriage.
Several of Canada’s religious
communities—such as the Roman
Catholic Church, the Evangelical
Fellowship, and the Islamic Society of
Toronto—have been vocal about their
objections to same-sex marriage.
From a political standpoint, it appears
that the parliamentary vote on same-sex
marriage legislation is going to be very
close. Early in the process, Prime
Minister Chrétien announced that the
bill would be put to a free vote in the
House of Commons. In other words,
Liberals would not have to vote with
their party and could oppose the bill.
On August 8, 2003, The Globe and
Mail reported that 48 Liberal MPs were
opposed to the legislation. Combine this
number with the Canadian Alliance and
Progressive Conservative MPs opposed
to the bill and it appears that about half
of the MPs in the House are in a position
to vote against same-sex marriage
legislation. Meanwhile, an Ipsos-Reid
survey in June 2003 stated that 54 per
cent of Canadians favour same-sex
marriage. A follow-up survey saw that
number drop to 49 per cent. (The Globe
and Mail, August 8-9, 2003) Clearly the
issue is too close to call.
With the Supreme Court review of
the draft bill pending, many political
analysts think that same-sex marriage
legislation will likely not be presented
in the House of Commons until early
2004. That leaves plenty of time for
more debate, although some parliamentarians
hope to debate the issue before
the Supreme Court ruling.
Did you know . . .
Same-sex marriage
is already legal in
Belgium and the
Netherlands?
Questions
1. What reasons did the Ontario Court of Appeal give for supporting samesex
marriages?
2. How did Canada’s provincial and federal leaders respond to the decision?
3. Why did the federal government ask the Supreme Court to review their
same-sex marriage bill?
4. Outline the arguments for and against same-sex marriages.
5. What evidence is there that Canadians are divided on the issue of samesex
marriage?
6. Where do you presently stand on the issue? Why?
CBC News in Review • September 2004 • Page 32
YV
CANADA DEBATES SAME-SEX MARRIAGE
Video Review
1. What happened on June 10, 2003, to change the definition of marriage in
Canada?
2. What did Pierre Trudeau do to change the status of gays and lesbians in
Canada?
3. What was “Canada’s Stonewall”?
4. Why was the Charter of Rights and Freedoms so important in the battle
for gay and lesbian rights in Canada?
5. What role have the courts played in the ongoing quest for equal rights for
homosexuals?
6. The Ontario court ruling was not the first decision in favour of same-sex
marriage. a) Name the two provinces that handed down rulings before
Ontario.
Provinces: 1.__________________________ 2. ___________________________
b) What distinguishes these rulings from the Ontario one?
7. What did Canada decide to do instead of appealing the Ontario court’s ruling?
8. What protection is there in the same-sex marriage bill for religious groups
that do not wish to sanctify same-sex marriages?
9. What position does the Vatican take regarding same-sex marriages?
10. Why did Prime Minister Chrétien reject the idea of a national referendum
on same-sex marriages?
Please view the
video carefully and
answer the questions
on this page.
Further Research
In order to keep
abreast of the
Supreme Court’s
rulings on this issue
visit www.sccccsc.gc.ca.
CBC News in Review • September 2004 • Page 33
CANADA DEBATES SAME-SEX MARRIAGE
Document Study
An Act Respecting Certain Aspects of Legal Capacity for Marriage
for Civil Purposes.
From the Department of Justice
Proposal for an Act respecting certain aspects of legal capacity for marriage for
civil purposes
WHEREAS marriage is a fundamental institution in Canadian society and the
Parliament of Canada has a responsibility to support that institution because it
strengthens commitment in relationships and represents the foundation of
family life for many Canadians;
WHEREAS, in order to reflect values of tolerance, respect and equality consistent
with the Canadian Charter of Rights and Freedoms, access to marriage for
civil purposes should be extended to couples of the same sex;
AND WHEREAS everyone has the freedom of conscience and religion under the
Canadian Charter of Rights and Freedoms and officials of religious groups are
free to refuse to perform marriages that are not in accordance with their religious
beliefs;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows:
• Marriage, for civil purposes, is the lawful union of two persons to the
exclusion of all others.
• Nothing in this Act affects the freedom of officials of religious groups to
refuse to perform marriages that are not in accordance with their religious
beliefs.
• Consequential amendments will be added in the bill that is introduced in
Parliament.
Questions for the Supreme Court
In the Reference, the Government of Canada has asked the Supreme Court of
Canada the following three questions about the draft bill:
• 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?
Questions
1. State three things that the new legislation is seeking to change regarding
the marriage laws of Canada.
2. Why do you think the government is asking for legal clarification of the
wording of the bill by the Supreme Court? Who are they trying to protect?
Please read the
draft copy of
Canada’s same-sex
marriage legislation
and answer
the questions at
the bottom of the
page.
Further Research
CBC Newsworld has
both information
and learning
activities on samesex
marriages at
www.cbc.ca/
newsreal/
teachers.html.
Select “Past Lesson
Plans” and “June
11, 2003.”
CBC News in Review • September 2004 • Page 34
CANADA DEBATES SAME-SEX MARRIAGE
Separation of Church and State
Jean Chrétien’s spokesperson Thoren
Hudyma put things into perspective
when she addressed the media in early
August 2003. She said: “The Prime
Minister has made his case several
times and his position is clear. His
position is that there needs to be a
separation between church and state and
as Prime Minister he has an obligation
to protect the equality rights of all
Canadians” (The Globe and Mail,
August 8, 2003). The separation of
church and state has been a key theme
in Canadian history. Governments have
endeavoured to guarantee that the
decisions they make, while in accordance
with the societal values of Canadians,
are free of the influence of religious
doctrine.
The Position of State:
To Legislate or Not to
Legislate
In 1967, then-justice minister Pierre
Trudeau proposed several amendments
to the law in order to decriminalize
homosexual activity. He said, “It’s
bringing the laws of the land up to
contemporary society, I think. Take this
thing on homosexuality. I think the
view we take here is that there’s no
place for the state in the bedrooms of
the nation” (www.cbc.ca – Indepth
Backgrounder: Gay Rights). Trudeau’s
criminal code amendments initiated the
gradual recognition of homosexual
rights by mainstream society. However,
it has been recent decisions in Canada’s
courtrooms that have demonstrated real
developments in the fight for equal
rights for gay and lesbian Canadians. In
1995, the Supreme Court of Canada
ruled that the “opposite sex” definition
used in the Old Age Security Act
violated the Charter of Rights and
Freedoms and “read in” sexual orientation
to the equality rights section of the
Charter. In 1999, the Supreme Court
instructed Parliament to proceed with
legislation recognizing the rights of gay
and lesbian Canadians. They made it
clear that gays and lesbians should not
be “expected to wait patiently for the
protection of their human dignity and
equal rights while governments move
toward reforms one step at a time.” The
Government responded in 2000 by
amending 68 statutes that gave spousal
benefits to same-sex partners. To appease
fears that the stage had been set
to legalize same-sex marriage, marriage
was defined in the preamble of the bill
as “the lawful union of one man and
one woman to the exclusion of all
others.” However, the legal precedent
was already there for the emergence of
a ruling favouring same-sex marriage.
With the Supreme Court already “reading
in” sexual orientation to the equality
rights of the Charter, it was just a matter
of time before the courts would force
the state’s hand on the issue of samesex
marriage. That moment came when
the Ontario Court of Appeal, echoing
similar rulings in B.C. and Quebec,
upheld a lower court’s decision regarding
same-sex marriage on June 10,
2003. Reinforcement came shortly after
the ruling, first when the federal government
promised to introduce samesex
marriage legislation and then, on
July 8, when the British Columbia
Court of Appeal lifted its ban on samesex
marriage.
To the federal government, granting
gays and lesbians the right to marry has
CBC News in Review • September 2004 • Page 35
become a human-rights issue. This
became clear on August 19 when the
Prime Minister faced political pressure
from his own caucus and the media at
the Liberal retreat in North Bay,
Ontario. When asked if he would hold a
national referendum on same-sex
marriage, Chrétien replied, “To have a
referendum to decide on the fate of a
minority, it’s a problem. The majority
will prevail on everything. Perhaps the
French language would have been
banned in Canada for a long time if it
had been a question of the majority
deciding. It’s why we have constitutions.
. . . It’s why we have a Charter of
Rights.” Chrétien’s likely successor,
Paul Martin, weighed in on the issue,
saying, “There are some issues that are
suitable for referendums. There are
other issues for Parliament to deal with.
This is something for Parliament to deal
with” (Toronto Star, August 20, 2003).
The Position of the
Church(s): To Sanctify or
Not to Sanctify
Canada’s religious communities have
also brought their perspectives to the
forefront. The Metropolitan Community
Church in Toronto (MCCT) brought
same-sex marriage to the national stage
in 2001 when Reverend Brent Hawkes
used the Christian tradition of publishing
marriage banns to marry a gay
couple, Kevin Bourassa and Joe
Varnell, and a lesbian couple, Elaine
and Anne Vautour. The Province of
Ontario refused to register the marriages.
The province’s refusal to register
the marriages, and the federal
government’s inaction on the issue of
same-sex marriage legislation,
prompted the MCCT to work with a
number of gay and lesbian couples to
initiate legal proceedings to force
government to recognize the right of
homosexuals to marry. These proceedings
led to the historic decision by the
Ontario Court of Appeal. While the
MCCT has been a vocal religious and
legal leader in the fight for same-sex
marriage, other churches have also
supported the idea of sanctifying samesex
marriages—namely the United
Church of Canada and at least one
diocese of the Anglican Church of
Canada. Hawkes summarized his
position when he said, “I believe that
most Canadians either support our right
to marry, that is they accept same-sex
marriage, or they believe the state has
no business in telling us that we may
not do so” (www.samesexmarriage.ca/
legal/on_couples.htm).
Other religious groups have voiced
their opposition to same-sex marriage.
Both the Evangelical Fellowship of
Canada and the Islamic Society of
Toronto have come out strongly against
same-sex marriage. However, it has
been the Roman Catholic Church that
has been most vocal in the debate. The
Catholic Church indicated immediate
disappointment in the court decision
regarding same-sex marriage. By midJuly,
the Vatican issued a world-wide
written directive to Catholic politicians.
“When recognition of homosexual
unions is proposed for the first time in a
legislative assembly,” the document
reads, “the Catholic lawmaker has a
moral duty to express his opposition
clearly and publicly and to vote against
it. . . . To vote in favour of a law so
harmful to the common good is gravely
immoral” (from the Vatican document
entitled “Considerations Regarding
Proposals to Give Legal Recognition to
Unions Between Homosexual Persons,”
www.cbc.ca, July 18, 2003). Thus, the
Vatican was weighing in on the issue
and directing Catholic politicians—like
CBC News in Review • September 2004 • Page 36
Jean Chrétien, Paul Martin, and Sheila
Copps—to vote according to their
religious tradition. Regardless of the
directive, Chrétien, Martin, and Copps
all agreed to vote in favour of same-sex
marriage legislation. At the end of July
2003, Bishop Fred Henry of Calgary
said that Chrétien “doesn’t understand
what it means to be a good Catholic”
and that he is “putting at risk his eternal
salvation” by pursuing legislation
recognizing same-sex marriages. Henry
went on to say, “I pray for the Prime
Minister because I think his eternal
salvation is in jeopardy. He is making a
morally grave error and he’s not being
accountable to God” (The Globe and
Mail, July 31, 2003). Finally, Monsignor
Peter Showenback of the Canadian
Conference of Catholic Bishops said
that Catholic lawmakers are “to use the
values that they have to oppose any
legal recognition that would put such
unions on the same basis as marriage”
(www.cbc.ca, July 31, 2003).
The Catholic Church ascribes to the
philosophy of natural law that St.
Thomas Aquinas describes as participation
in God’s divine law. Since marriage,
family life, and procreation are
intertwined, marriage can only be
between a man and a woman. Thus, a
definition of marriage that includes
same-sex partners would not be theologically
sound because a homosexual
couple cannot procreate. In fact, the
Catholic Church position on homosexuality
is that homosexual acts are a
violation of natural law and that homosexuals
should remain chaste.
Despite the vocal objections of religious
organizations like the Catholic
Church as well as other secular protest
groups, the Chrétien government plans
to pursue same-sex marriage legislation.
The long battle to maintain a separation
between church and state rages on.
To Consider
1. Briefly describe what is meant by the separation of church and state.
2. Write an outline of the position of the state on same-sex marriages. Make
sure you include at least seven points.
3. Explain the position of the following on the issue of same-sex marriage:
a) The Metropolitan Community Church of Toronto
b) The Roman Catholic Church
4. In your view, is there a workable compromise between the views of
church and state on this powerful issue? Explain.
CBC News in Review • September 2004 • Page 37
CANADA DEBATES SAME-SEX MARRIAGE
Crossfire
“Exclusion from marriage—a fundamental
societal institution—perpetuates
the view that same-sex relationships are
less worthy of recognition than opposite-sex
relationships. In doing so, it
offends the dignity of the person in
same-sex relationships.” — From the
Ontario Court of Appeal ruling on
same-sex marriage, quoted in The
Globe and Mail, June 12, 2003
“Today, the court has fundamentally
redefined marriage. Other courts have
ruled that redefining marriage is too big
a step to be made by the courts and
should properly be made by Parliament.”
— Bruce Clemenger of The
Evangelical Fellowship of Canada,
Catholic New Times, June 29, 2003
“Today is the death of homophobia in
the courtroom as we’ve known it.” —
Michael Leshner, a man who played a
key role in the court battle for same-sex
marriage in Ontario. Leshner was
married to his partner, Michael Stark,
within hours of the Ontario court ruling.
Quoted on www.cbc.ca, July 13
“To take an institution so near and dear
to so many people and change the
definition in this way is going too far.”
— Alberta Justice Minister Dave
Hancock, The Globe and Mail, June 19,
2003
‘It’s hard to understand the opposition.
Gays aren’t asking for government
money, tax breaks, preferential status in
seeking jobs, redress of past grievances,
or other rights or privileges that would
set them apart from others. Rather, gay
and lesbian couples want to be able to
The series of quotes
on this and the
next page captures
the essence of the
debate over samesex
marriage. Read
the quotes and
complete the
questions that
follow.
declare their commitment in the same
way as any couple who love each other
enough to marry.” — Anthony WilsonSmith
in an editorial for Maclean’s,
June 23, 2003
“Can we redefine marriage? Probably
not, that’s in the federal jurisdiction.
Can we say that we will not recognize
marriage in Alberta unless it adheres to
the ‘opposite-sex’ definition that we
have in our act? Yes, I believe we can.”
— Alberta Justice Minister Dave
Hancock revealing his government’s
decision to use the Charter’s notwithstanding
clause to oppose federal samesex
marriage legislation, quoted in The
Globe and Mail, June 18, 2003
“Society is not static. It’s in constant
evolution. It’s a question of dignity. It’s
a question of equality. And I sincerely
believe the government is going in the
right direction.” — Federal Justice
Minister Martin Cauchon on the
government’s decision to proceed with
same-sex marriage legislation, quoted
on www.cbc.ca, July 18, 2003
“To me, marriage is between a man and
a woman. If there are other arrangements
which happen to be man and man
and other arrangements which happen
to be woman and woman, that’s their
business. And that should be called
something else.” — Liberal MP Walt
Lastewka, The Standard, August 25,
2003
Archives
Visit the CBC’s
Digital Archives site
at www.cbc.ca/
archives and view
the audio-visual file
entitled “Gay and
Lesbian Emergence:
Out in Canada” for
further research.
CBC News in Review • September 2004 • Page 38
“My question to MPs is: Given the way
law functions in our land, are you
convinced that by changing the definition
of marriage that you are enriching
our culture? . . . Wouldn’t it be preferable
to deal with the fairness issue by
giving same-sex partners their own
definition but not break down the
essential nature and component of what
our society has built its self-understanding
on?’ — Brian C. Stiller, president of
Tyndale University College and Seminary
in Toronto, Toronto Star, August
3, 2003
“It shouldn’t be marriage. If they want a
union, it’s up to them. That’s it. Glory
be to God to live in Canada, marriage is
a man and woman.” — Conservative
MP Elsie Wayne on the issue of samesex
marriage legislation, The Globe and
Mail, May 9, 2003
“When I hear these members freak out
at the notion that the definition of
marriage should be modernized I have
to ask myself what world these members
are living in? Maybe they are just
insecure about their own sexual identity
that they cannot cope with the reality
that not everyone has the same sexual
orientation that they do.” — MP Alexa
McDonough reacting to Elsie Wayne’s
comments regarding same-sex marriage,
The Globe and Mail, May 9,
2003
“Thousand of years of tradition, tried
and true, outweigh anything that just
happens to be modern and catchy.” —
Tim Dooling of the group Canadians
Against Same-Sex Marriage, The Globe
and Mail, July 25, 2003
“The sanctity of marriage is more
challenged by heterosexuals divorcing
than by what other people—same-sex
people—are doing.” — Federal Amateur
Sports Minister Paul DeVillers,
Toronto Star, August 8, 2003
“If God is love, then wherever love is,
God is. If love is present in same-sex
marriages— and it undeniably is—then
God is present there also. No thinker
can convincingly rebut this.” — Ethics
columnist Tom Harpur, Toronto Star,
August 3, 2003
Analysis
1. After reading the quotes, indicate whether the speaker is for or against
same-sex marriage. Just write for or against in the margin beside the
quote.
2. Rank the “for” quotes and the “against” quotes from most relevant to
least relevant. Be prepared to explain the reasons for your choices.
3. Select one quote with which you most disagree and explain why you
disagree.
4. Select one quote that you feel most closely captures your view on the
issue of same-sex marriage. Write a paragraph (7-10 sentences) explaining
how the quote is a reflection of your point of view.
CBC News in Review • September 2004 • Page 39
CANADA DEBATES SAME-SEX MARRIAGE
Putting Things into Perspective
This, too, shall pass
Those things that most deeply
divide us can also unite. Remember
the great flag debate
of 1965? Thought not.
By James Travers. Toronto Star,
August 21, 2003. Reproduced with
permission — Torstar Syndication
Services
By rough count, there are a couple
of dozen flags flying around the
modest resort where federal Liberals
are meeting this week.
Every maple leaf turning in the
summer wind stirs national pride;
not one stirs the party’s collective
memory.
That’s a pity for a caucus struggling
with an issue as emotional and
sensitive as same-sex marriage. If
Liberals were to look into their past,
they would find reassurance that
those things that most deeply divide
can also unite.
For most Canadians, the flag is the
most unequivocal of symbols.
Proudly sewn on backpacks by Canadians
and by Americans preferring
to travel under another banner, its
distinctive simplicity is as easily
recognized abroad as it is beloved at
home.
It was not always that way.
Exactly 40 years ago this country
and its Liberal government were as
ferociously tearing themselves apart
over the flag as they are today over
extending marriage to gay and
lesbian couples.
Then, as now, there were fears
radical change would erode the
country’s values as well as its traditions.
On the now yellowed pages of
one newspaper, a columnist offered
James Travers is a
national affairs
columnist for the
Toronto Star. He
brings an interesting
perspective to
the same-sex
marriage debate. In
his opinion, the
debate can be
viewed in light of
other historic
debates in Canadian
history—
debates that have
seen a deeply
divided Canadian
populace eventually
come to a new
understanding of a
controversial issue.
Please read Travers’
article and answer
the questions that
follow.
Archives
For a fuller audiovisual
account of
the Canadian flag
debate, consider a
visit to the CBC
Digital Archives at
www.cbc.ca/
archives and view
the file “The Great
Canadian Flag
Debate.”
this judgment about the flag, Prime
Minister Lester Pearson, and national
unity: “A rag of appeasement,
thrust upon us by a dictator who has
split the country.”
A letter published by the Toronto
Star found a little optimism in the
prevailing angst. “If all Canadians
will fight as vigorously under the
new flag as they have over it, there
is still hope for us as a great nation.”
There is, of course, still hope for us
as a great nation. But greatness
doesn’t come easily or without the
pain that is part of trading what is
familiar for what is right.
Pearson’s 1963 legislation was no
exception.
By the time a new flag designed in
Canada replaced an old one borrowed
from Britain, Parliament had
been deadlocked for six months and
Pearson had been forced to invoke
closure on a debate that seemed
destined to leave permanent scars.
For those keeping score, 73 Conservatives
led by John Diefenbaker
voted against a piece of cloth that
now seems as much a part of
Canada as hockey, the frozen north,
and peacekeeping.
Despite all that hostility, despite
the refusal of a few diehard empire
loyalists to lower the Union Jack or
the Red Ensign, the new flag was
hoisted on February 15, 1965.
And then something happened
that was even more worthy of celebration.
Canadians stopped arguing if
three maple leafs, Pearson’s preferred
version, was better than one,
or vice versa. They stopped arguing
that the stripes should be blue, not
red, and that the flag failed to
capture the essence of the country’s
founding nations.
CBC News in Review • September 2004 • Page 40
Literally and figuratively, a new
flag was run up the pole and Canadians
more or less happily saluted. In
concepts and phrases that wouldn’t
become common for a couple of
decades, the country found closure
and moved on.
There are differences between
finding a flag and changing the
accepted definition of marriage and
there are differences in the Canada
of the ’60s and the one finding its
way through the early years of a
sometimes scary new millennium.
There are also similarities.
Pearson understood that a country
that had come of age in two world
wars wouldn’t be fully formed without
its own flag. Knowing that, he
did what had to be done.
Jean Chrétien also understands
that a country that compromises
human rights is diminished. He, too,
is doing what must be done.
That determination surfaced here
again yesterday as a badly divided
Liberal caucus tried to find an easy
way around what is now a significant
political problem. When it was
suggested that the decision-making
burden could be shifted to citizens
in a referendum, the Prime
Minister’s response was unequivocal.
Minority rights guaranteed by the
Constitution are not subject to the
tyranny of the majority. The government
will, as it should, stay this
difficult course.
No one here is discounting just
how difficult that will be. In some
cases, the views of caucus members
are so different that they share only
emotional intensity.
Still, the way ahead is clear.
Liberals who know how to agree
to disagree will continue to debate,
to search for loopholes the courts
will close with the Charter of Rights
and Freedoms, and to press ahead
with legislation. When the time
comes, they will vote not with party
whips on their backs but with their
conscience.
Whatever they decide, the sweep
of history, the steady advancement
of human rights and, yes, the Constitution,
make the outcome certain.
Like the flag debate, this controversy,
too, will pass.
Analysis
1. How is the flag debate of the 1960s similar to the same-sex marriage
debate of 2003?
2. Matthew Mendelsohn, the director of the Canadian Opinion Research
Archive, claims that the same-sex marriage debate is an indicator of generational
attitudes. According to Mendelsohn, younger Canadians are
more inclined to support same-sex marriages while the 50+ generation are
more likely to oppose same-sex marriage. Why do you think this might be
the case?
3. Is Travers’ argument fair? Is the argument over the flag in the same
league as an argument involving a societal institution like marriage? Be
prepared to defend your position.
4. How do you think society will view the same-sex marriage issue in 40 years
time? Explain.
CBC News in Review • September 2004 • Page 41
CANADA DEBATES SAME-SEX MARRIAGES
Final Activity: The Charter and You
The Constitution Act was proclaimed
by Queen Elizabeth on April 17, 1982.
The companion to the Constitution was
the Charter of Rights and Freedoms, a
document that represented the fulfillment
of Prime Minister Pierre
Trudeau’s vision of a just society. The
Charter makes clear the specific rights
and freedoms that all Canadians enjoy.
Activity #1: Equality Rights
The gay and lesbian community has argued that their equality rights were
being violated, and the courts agreed. It was this effective use of the Charter
that won them their case.
Work with a partner and read Section 15 of the Charter of Rights and Freedoms.
How might the gay and lesbian community have used this section of the
Charter to argue that their equality rights were being violated? Report your
findings to the class. Do you agree with the ruling? Explain.
15. (1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
Activity #2: The “Notwithstanding” Clause
The drafting of the Charter of Rights and Freedoms proved to be difficult
business for the politicians who put the document together. The main areas of
disagreement revolved around an amendment formula and provisions allowing
provinces to opt out of certain legislation. Eventually the premiers and the
prime minister agreed to a way to amend the constitution and inserted the
“notwithstanding” clause to give provinces the ability to pass legislation that
could exempt them from certain parts of the Charter. This is the section of the
Charter that Alberta Premier Ralph Klein vows to use if the government proceeds
with legislation regarding same-sex marriage.
Working with a partner, read Section 33 of the Charter. What are the limitations
that Alberta will face if they opt to use this section of the Charter? Why
do you think Klein is prepared to use the “notwithstanding” clause? What
difficulties present themselves when a province decides not to recognize a
minority group’s rights under the Charter? Record your findings and share your
conclusions with the class.
33. (1) Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.
Further Research
For more on the
Charter of Rights
and Freedoms: See
the Charter at:
http://
laws.justice.gc.ca/
en/const/
annex_e.html; Read
about the Charter
at: www.pch.gc.ca/
charter-anniversary/
index_e.cfm.
CBC News in Review • September 2004 • Page 42
(2) An Act or a provision of an Act in respect of which a declaration made
under this section is in effect shall have such operation as it would have but
for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five
years after it comes into force or on such earlier date as may be specified in
the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made
under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
Activity #3: Religious Rights
Some religious groups are very concerned about passing laws regarding samesex
marriage. One of the main fears these groups have expressed has to do with
being forced to perform same-sex marriage ceremonies even though their
religious doctrine forbids such ceremonies. This is one of the main reasons that
Prime Minister Chrétien has asked the Supreme Court of Canada to review the
draft legislation regarding same-sex marriages. However, the Charter also
protects a person’s religious rights in Section 2 under the heading “Fundamental
Freedoms.”
Working with a partner, read Section 2 of the Charter. How could a religious
group use this section of the Charter to defend its right not to perform samesex
marriage ceremonies? Record your findings and share your conclusions with
the class.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Extension Activity: You Be the Judge
Read the draft legislation of “The Act Respecting Certain Aspects of Legal
Capacity for Marriage for Civil Purposes” at: www.cbc.ca/news/indepth/
background/gayrights_ottawalaw.html.
Prepare a report that answers each of the following questions in 7-10 sentences.
• How will the act change the definition of marriage in Canada? Be specific.
• What benefits do the gay and lesbian community stand to gain from the
legislation? Please provide specific examples.
• What provisions have been included to protect the rights of religious
groups in the legislation? Are these provisions enough or should the
government have gone further?
• Finally, clearly state your position on the legislation. Should the act be
passed by Parliament? Support your position with specific reference to
your knowledge of the debate surrounding same-sex marriage and the
Charter of Rights and Freedoms.
ORIGINAL PAPER
Canada’s Same-Sex Marriage Law: Exception to or Exemplar
of Canada’s Family Policy?
Hilary A. Rose
Published online: 17 April 2011
Springer Science+Business Media, LLC 2011
Abstract Family policy in Canada is primarily concerned
with assisting parents raise their children. This fairly singular
approach to family policy is ironic given that Canada
does not have a nationally-coordinated family policy. The
development of a national family policy has been hampered
by Canada’s decentralized governmental structure
(i.e., federal and provincial, as well as territorial, governments)
and other factors such as diverse geography and
different traditions (e.g., a tradition of common law in
English Canada, and civil law in Quebec). A recent addition
to Canada’s family policy is Bill C-38, The Civil
Marriage Act (2005), the law legalizing same-sex marriage.
To put Canada’s same-sex marriage law into context,
this article presents some preliminary statistics about samesex
marriage in Canada, and considers whether same-sex
marriage legislation is a good example of Canadian family
policy, or an exception to the rule that Canadian family
policy focuses primarily on helping parents socialize their
children.
Keywords Same-sex marriage Legislation
Family policy Parenting Children
Introduction
Family policy is largely a twentieth century invention. It
developed first in Europe and spread over the course of the
century to North America and other parts of the world (e.g.,
Australia, China, Japan). Family policy is seen as a subset
of social policy (e.g., Kamerman and Kahn 1997), and it
illustrates a government’s attempts to regulate the lives of
its citizens and the relations among them. From the government’s
perspective, life events such as birth, marriage,
and death have to be monitored and regulated (e.g., China’s
one-child policy) in order to promote the well-being of a
nation. Gender equality, sexual reproduction, child-rearing
practices, domestic violence, and inheritance are all
examples of issues that can be covered by family policy
(e.g., Baker 1995; Conway 2003; Vail 2002), although
some issues take priority over others depending on the
concerns of a given nation. Sweden, for example, explicitly
uses family policy to foster equality rights (Vail 2002).
In the Canadian context, family policy refers primarily
to legislation and governmental programs that support
parents in raising their children. Why the emphasis on
children? Because ‘‘children are the source of renewal of
the human capital of an economy’’ (Baril et al. 2000, p. 5),
or an investment in the nation’s future (e.g., Beauvais and
Jenson 2001). Thus, Canadian family policy focuses primarily
on families with children (e.g., Baker 1995; Conway
2003; Vail 2002), reflecting the common practice in the
family policy field of defining families as multi-generational
system of parents raising children (e.g., Kamerman
and Kahn 1997). As one example of Canadian family
policy, same-sex marriage legislation (i.e., Bill C-38, the
Civil Marriage Act 2005) is not, however, explicitly concerned
with children. Although in some cases same-sex
marriages involve children, in most cases they do not (e.g.,
Statistics Canada 2010). The purpose of this paper is to
briefly review family policy in Canada, to examine samesex
marriage in Canada, and to determine whether samesex
marriage legislation is an exception to, or an exemplar
of, Canadian family policy.
H. A. Rose (&)
Department of Applied Human Sciences, Concordia University,
VE-321.02, 1455 de Maisonneuve Blvd. West, Montreal,
QC H3G 1M8, Canada
e-mail: hrose@alcor.concordia.ca
123
J Child Fam Stud (2012) 21:88–94
DOI 10.1007/s10826-011-9479-7
Definitions of Family Policy
In Canada, as in other countries, there is no general consensus
on how to define family policy (Baril et al. 2000)
beyond a vague notion of ‘‘state intervention in family life’’
(Baker 1995, p. 3). Family policies have been developed to
promote gender equality (e.g., Vail 2002), to regulate
sexuality and reproduction (e.g., Baker 1995), to balance
work and family life (e.g., Skrypnek and Fast 1996), as
well as to support parents who are raising children. One
Canadian researcher defined family policy as ‘‘a coherent
set of principles about the state’s role in family life which
is implemented through legislation or a plan of action’’
(Baker 1995, p. 5). Another Canadian researcher described
family policy as ‘‘the policies, programs, laws, and regulations
designed explicitly to support families in raising
children. It includes policies that support parents and
communities in providing environments that ultimately
assist a child’s development’’ (Vail 2002, p. 3).
According to Baker (1995), there are three categories of
Canadian family policy. The first category of family policy
involves legislation (both federal and provincial) addressing
family issues such as marriage, reproduction, and
divorce. Canada’s Civil Marriage Act (2005) is an example
of this category. The second category involves governmental
support for family income (e.g., parental leave and
benefits, family allowance, and child tax credits); an
example of this category is the federal family allowance
program that ran nationally from 1945 to 1992, in which
Canadian mothers received monthly ‘‘baby bonus’’ cheques
from the government. The third category of family policy
involves provision of services such as child care, child
protective services, and home care. Quebec’s $7-a–day
subsidized child care program is an example of this
category.
Factors Influencing Family Policy
There is, however, no national family policy in Canada
(e.g., Conway 2003; Vail 2002). A number of factors
promote the development of a national family policy
including national values, demographic trends, and political
structure. According to Vail, non-consensus about the
importance of gender equality (e.g., in the United States),
or on whether children versus families should take priority
in policy decision-making (e.g., in Australia), contributes
to the lack of a national family policy. Nations with a
tradition of socialist governments (e.g., Sweden) are more
likely to have national family policies (Baker 1995).
Demographic trends, such as declining fertility and the
aging population, can also influence whether a country has
a national family policy (e.g., Baker 1995).
The biggest factor affecting family policy is Canada’s
decentralized political structure with two levels of government
(i.e., federal and provincial) responsible for policy
and legislation (Vail 2002). For example, marriage falls
under federal jurisdiction, but the solemnization of marriage
falls under provincial jurisdiction (e.g., in British
Columbia, only one member of a couple has to apply for a
marriage licence, but she or he has to be 19 years of age. In
Saskatchewan, both members of a couple have to apply for
a marriage licence, but they only have to be 18 years of
age).
Similarly, parental leave and benefits as well as divorce
are also affected by Canada’s decentralized political
structure. At the federal level, unpaid maternity and
parental leaves are available for childbirth or adoption for
up to a year, with Employment Insurance benefits paid to
eligible employees for up to 50 weeks (Employment
Insurance Act 1996). Provinces vary, however, on specific
details such as how soon maternity leave can start prior to
the expected date of birth (e.g., 11 weeks in British
Columbia, 17 weeks in Newfoundland), or previous length
of employment in order to be eligible (e.g., 0–12 months).
Divorce is another case where, although the Divorce Act
(1985) is federal, divorce support and child custody laws
can fall under provincial jurisdiction. For example, federal
child support guidelines inform most Canadian jurisdictions;
Manitoba, Quebec, and New Brunswick, however,
follow provincial child support guidelines. (Provincial
child support guidelines are also used in cases nation-wide
when cohabiting parents separate.)
Furthermore, Canada’s decentralized political structure
is not the only challenge to a national family policy.
‘‘Disputes over jurisdiction have typified Canadian social
policy development. Added to this, Canada is a large
country, relatively sparsely populated by culturally and
racially diverse people from many different backgrounds,
with two official languages, and two different systems of
civil law’’ (Baker 1995, p. 337). Specifically, law in English
Canada is influenced by British common law, whereas
law in Quebec is influenced by the French Code Civil. As
an example, laws with respect to cohabitation differ greatly
from province to province, and especially in Quebec where
civil code law does not recognize the relationships of
cohabiting couples (e.g., as in the case of inheritance when
one member of a cohabiting couple dies).
In summary, Canada, like the United States, has no
national family policy, leading one author to refer to
Canada’s ‘‘patchwork of entitlements’’ (Hurley 2005, p. 3).
Several factors contribute to the lack of a nationallycoordinated
family policy, with the most important being
Canada’s decentralized system of government, in which
both the federal government and the provincial and territorial
governments take responsibility for family policy. In
J Child Fam Stud (2012) 21:88–94 89
123
general, laws about the legality of specific family events
such as marriage and divorce (i.e., that they can occur) are
federal; laws about how such events occur are largely
provincial. Another important factor has to do with different
legal traditions in Canada: common law in English
Canada, and civil law in Quebec.
Same-Sex Marriage in Canada
Over 5 years ago, on July 20, 2005, Canada’s same-sex
marriage law, or Bill C-38 was signed into law (Hurley
2005), allowing same-sex couples to marry nation-wide
(several provinces had already legalized same-sex marriage
beginning in 2003). Following the Netherlands, Belgium,
and Spain, Canada was the fourth country in the world to
extend marriage to same-sex couples. Such a dramatic
policy change does not occur over night. As Dutch legal
scholar Waaldijk (2001) predicted, several decades of
‘‘small change’’ precede same-sex marriage legislation.
Waaldijk’s theoretical model is the only model that I am
aware of that examines national progress toward the
legalization of same-sex marriage, and as such I have used
his model elsewhere to describe Canada’s progress toward
same-sex marriage (Rose 2010). In examining laws about
homosexuality in Europe, Waaldijk (2001, 2004) concluded
that there is a pattern of steady progress toward the
legalization of same-sex marriage. This progress involves a
standard (i.e., invariant) sequence of events, each preceding
the next. According to Waaldijk (2001), this series of
‘‘small changes’’ results in big change: the legalization of
same-sex marriage.
According to Waaldijk’s (2001) model, the first event in
the sequence involves the decriminalization of homosexuality
(i.e., sodomy), and can include the equalization of the
age of consent between gay and heterosexual couples; in
Canada, the decriminalization of homosexuality occurred
in 1969 with an amendment to Canada’s Criminal Code
(e.g., Fisher 2004); Canada has yet to equalize age of
consent (Ottosson 2009). The next event involves passing
explicit anti-discrimination laws such as equality rights
legislation; with an amendment to Canada’s Human Rights
Act in 1996, Canada passed explicit anti-discrimination
law (e.g., Fisher 2004). The final event leading to the
legalization of same-sex marriage involves the recognition
of same-sex partners, and the provision of partner benefits;
in 2000, Canada passed the Modernization of Benefits and
Obligations Act (2000), amending 68 federal statues to
extend benefits to members of same-sex couples. According
to Waaldijk (2001), once these three events have
occurred, the stage is set for a nation to legalize same-sex
marriage; as Waaldijk’s model predicted, Canada passed
same-sex marriage legislation (Hurley 2005).
Since the passing of Bill C-38, on July 20, 2005, family
life in Canada has changed very little. Most Canadian
families have not been affected by the new law, as data
show that same-sex couples represent an extremely small
proportion of all Canadian couples (i.e., less than 1%), and
to date only a small percentage (16%, with a high of 21.5%
in Ontario, and a low of 9% in Quebec) of all same-sex
couples marry (Milan et al. 2007). For same-sex couples
that marry, however, their lives have changed in meaningful
ways (e.g., Webb 2008). As just one example, on the
day two lesbian mothers married each other in Toronto,
their 12-years-old son said ‘‘Now nobody can say I don’t
have a real family’’ (McCarthy 2008). As with heterosexual
marriages, some same-sex marriages end in divorce. Canada’s
first same-sex divorce occurred in 2004 (e.g., SameSex
Divorce 2004), before same-sex marriage was legal
nationally. In 2003, shortly after same-sex marriage was
legalized in Ontario, a lesbian couple married; a week later,
they filed for divorce. It took a year for the divorce to be
granted (in part because of the discrepancy between
Ontario’s marriage law–under provincial jurisdiction–and
Canada’s Divorce Act 1985, which is under federal
jurisdiction).
Preliminary Statistics on Same-Sex Marriage
There are still very few statistics available with respect to
same-sex marriage in Canada. Most of the statistics
available are either from census and other data collected by
Statistics Canada, or from various provinces’ departments
of vital statistics. Statistics Canada conducts a census every
5 years (i.e., in 2006, 2011), so to date there has only been
one national census since the legalization of same-sex
marriage (the most recent census was conducted 10 months
after the law was passed). Statistics Canada will conduct
another national census in 2011, and at that time, we can
anticipate a much clearer picture of same-sex marriage in
Canada. In addition, each province and territory collects
vital statistics data (e.g., births, marriages, deaths),
although as each province collects somewhat different data,
it is not always possible to make comparisons among them.
For example, Ontario, the first province to legalize samesex
marriage (in 2003), does not collect data on the gender
of people who marry; thus, Canada’s most populous
province does not have accurate vital statistics data on the
number of same-sex marriages.
British Columbia and Quebec, the second and third
provinces to legalize same-sex marriage (in 2003 and 2004,
respectively), each have 5 years of vital statistics data that
includes same-sex marriage data. There are both similarities
and differences in the same-sex marriage statistics
from B.C. and Quebec. As an example of a difference, gay
90 J Child Fam Stud (2012) 21:88–94
123
men (57%) are more likely than lesbians (44%) to marry in
Quebec (St. Amour and Girard 2009). In B.C., on the other
hand, lesbians (56%) are more likely than gay men (44%)
to marry (B.C. Vital Statistics Agency 2003, 2004, 2005,
2006, 2007, 2008). These gender differences hold for all
years that the vital statistics data are available (see
Table 1). In Quebec, 82% of same-sex couples that marry
are residents of Quebec, with 18% residing elsewhere (St.
Amour and Girard 2009). In B.C., on the other hand, only
45% of same-sex couples that marry are residents of B.C.,
with 55% residing elsewhere (primarily the United States;
B.C. Vital Statistics Agency 2003, 2004, 2005, 2006, 2007,
2008). This finding indicates that B.C., like Quebec to a
lesser extent (St. Amour and Girard 2009), is perceived to
be a ‘‘same-sex marriage destination,’’ particularly by
Americans. These residential differences hold for all years
with one exception (see Table 2). In 2008, for the first
time, more same-sex residents (n = 400) than non-residents
(n = 330) married in B.C.
With respect to similarities, there is a noticeable trend in
the number of same-sex weddings over time in both Quebec
and B.C. In each case, there is a big jump in the
number of same-sex weddings from the first partial year
following legalization (i.e., 2003 in B.C., 2004 in Quebec;
B.C. Vital Statistics Agency 2003, 2004, 2005, 2006, 2007,
2008; St. Amour and Girard 2009) to the first full year
following legalization (see Table 1). In addition, in both
jurisdictions, there is a higher than average number of
same-sex weddings in the second full year, followed by a
leveling off in the third full year. This pattern suggests an
initial period of ‘‘catch-up’’ (St. Amour and Girard 2009),
as lesbians and gay men took advantage of the opportunity
to marry as soon as they could. This catch-up/level-off
pattern is repeated in the number of same-sex marriages in
B.C. compared to all marriages in B.C. (B.C. Vital Statistics
Agency 2003, 2004, 2005, 2006, 2007, 2008). On
average, over the 5-years period for which complete data
are available (i.e., 2004–2008), 3.75% of all marriages in
B.C. were same-sex marriages. In the second full year after
legalization, there was a higher than average percentage of
same-sex marriages (4.47%), followed by a lower than
average percentage (2.67%) in the third full year after
legalization.
Other evidence that same-sex couples had to wait in
order to marry is their higher than average age at marrying;
in both Quebec (St. Amour and Girard 2009) and B.C.
(Statistics Canada 2007), lesbian and gay individuals who
married were approximately a decade older than heterosexual
individuals who married. The average age of lesbians
who married in B.C. and Quebec was 41.5 years; the
average age of gay men was 43 years. Over time, both
Quebec and Alberta (Service Alberta 2005, 2006, 2007)
showed a decrease in average age of gay and lesbian
individuals who married. In Quebec, in 2004, gay men who
married were on average 44 years of age, and lesbians were
on average 42 years of age (St. Amour and Girard 2009).
By 2008, gay men who married were on average 42 years
of age, and lesbians were on average 40 years of age. In
Alberta (where same-sex marriage became legal only after
Bill C-38 was passed in 2005), the median age of lesbian
and gay individuals who married decreased from
40–44 years in 2005, to 35–39 years in 2006, to
30–34 years in 2007 (Service Alberta 2005, 2006, 2007).
The higher than average age at marrying compared to
heterosexuals, coupled with the decreasing average age at
marrying for gay men and lesbians over time, indicate that
gay men and lesbians had to postpone their marriage plans
until same-sex marriages were legal.
For over 2/3 s of same-sex couples that married, their
marriages were first marriages. In Alberta, 66.1% of samesex
marriages were first-time marriages for both spouses
(Service Alberta 2005, 2006, 2007); in Quebec, 73.8% of
same-sex marriages were first-time marriages for both
spouses (St. Amour and Girard 2009). In Alberta, 27% of
Table 1 Same-sex weddings by gender, 2003–2008
British Columbia weddingsa Quebec weddingsb
Female Male Total Female Male Total
2003 400 335 735c – ––
2004 606 458 1064 97 148 245c
2005 569 443 1012 173 278 451
2006 340 273 613 272 349 621
2007 492 370 862 216 251 467
2008 403 328 731 193 262 455
a British Columbia Vital Statistics Agency (2003, 2004, 2005, 2006,
2007, 2008)
b St. Amour and Girard (2009)
c Partial year following legalization of same-sex marriage
Table 2 Same-sex weddings by residence, 2003–2008
British Columbia weddingsa Quebec weddingsb
Resident Other Total Resident Other Total
2003 287.5 447.5 735c – ––
2004 457 607 1064 221 24 245c
2005 401.5 610.5 1012 364 87 451
2006 275.5 337.5 613 501 120 621
2007 377.5 484.5 862 403 64 467
2008 400.5 330.5 731 369 86 455
a British Columbia Vital Statistics Agency (2003, 2004, 2005, 2006,
2007, 2008)
b St. Amour and Girard (2009)
c Partial year following legalization of same-sex marriage
J Child Fam Stud (2012) 21:88–94 91
123
same-sex marriages represented a second marriage for one
spouse, and 6.8% represented a second marriage for both
spouses (Service Alberta 2005, 2006, 2007). In Quebec,
20.5% of same-sex marriages represented a second marriage
for one spouse, and 3.7% represented a second
marriage for both spouses (an additional 1.9% of same-sex
marriages were conversions from civil unions; St. Amour
and Girard 2009). Furthermore, data from Quebec show
that same-sex civil marriages are more common than samesex
religious marriages: 74.1% of lesbian couples and
75.7% of gay male couples had same-sex civil marriages;
25.9% of lesbian couples and 24.3% of gay male couples
had same-sex religious marriages (the United Church of
Canada, the Unitarian Church, the Metropolitan Community
Church, and some liberal Protestant churches and
Jewish synagogues conduct same-sex marriages).
Perhaps not unexpectedly, data from Census 2006 show
that half of all married same-sex couples (i.e., 50%) live in
Canada’s three largest metropolitan areas (Statistics Canada
2009). Over 1/5 of all married same-sex couples in
Canada live in the greater Toronto area (21.2%). Another
18.4% live the in greater Montreal metropolitan area, and
10.3% live in the greater Vancouver area. Household
composition data, on the other hand, show some interesting
differences in terms of gender and marital status (Statistics
Canada 2010). By far, the majority of gay and lesbian
couples live alone; 85% of gay male couples, and 74% of
lesbian couples live alone. These numbers decrease, however,
for married couples; 61% of married gay male couples,
and 56% of married lesbian couples live alone. It is
hardly surprising that 15% of lesbian couples have one or
more children living with them, but married lesbian couples
are more likely (21%) than cohabiting lesbian couples
(14%) to have children living with them. Almost 3% of gay
male couples have one or more children living with them,
but married gay male couples are more likely (8%) than
cohabiting gay male couples (2%) to have children living
with them.
Perhaps the most surprising finding concerns other
family members (i.e., not children) living in the home with
same-sex couples (Statistics Canada 2010). Approximately
10% of all same-sex couples had another family member
living with the home with them, and again, this figure
increased for married couples. Almost 1/5 of married lesbians
(18%) had another family member living with them,
and another 2% had both a child and another family
member living with them. For married gay male couples,
the increase was even more dramatic: 29% of married gay
men lived with another family member (not a child), and
another 1% lived with both a child and another family
member. Thus, the households of same-sex couples seem to
be more complex than we might imagine. In addition, it
appears as though living with a child or another family
member is possibly a motivating factor in choosing to
marry. Lesbians in particular seem to be motivated to
marry by having one or more children living with them,
whereas gay men seem to be motivated to marry by having
another family member living with them. Regardless of the
gender difference, the presence an additional family
member (child or other member) in the home seems to
motivate same-sex couples to marry.
Besides vital statistics and population reports, there is
very little published research on the topic of same-sex
marriage in Canada. Although there are a number of articles
that discuss the historical and legal context of samesex
marriage in Canada (e.g., Cotler 2006; Mule´ 2010;
Wilkinson 2004), there are only two empirical studies
published to date. In each case, the study consists primarily
of semi-structured qualitative interviews with married
(Alderson 2004; MacIntosh et al. 2010) and soon-to-bemarried
(Alderson 2004) gay and lesbian couples about
their experiences of same-sex marriage. In each study, the
researchers found that same-sex marriage benefitted the
respondents in a number of ways: increased recognition
and legitimization in society (i.e., ‘‘marriage’’ as a universally
understood construct), the importance of acquiring/having
the rights and responsibilities associated with
marriage (e.g., spousal benefits), and increased connection
to both spouse (‘‘commitment,’’ Alderson 2004; ‘‘closeness,’’
MacIntosh et al. 2010) and family. In each study, a
minority of couples had children (33% of couples, mostly
lesbian, MacIntosh et al. 2010); many of these participants
had adopted her or his spouse’s biological child (Alderson
2004).
Same-Sex Marriage: Exception or Exemplar?
As previously discussed, Canada has no national family
policy given its decentralized political structure and distinct
cultures (Baker 1995; Conway 2003; Vail 2002).
Family policy is therefore is a function of different levels
of government, different geographical regions, and different
cultural traditions. Nevertheless, most family-related
policy falls under provincial jurisdiction, as does health and
education. Three types of family policy exist in Canada:
family legislation (of which Canada’s Civil Marriage Act
2005, would be an example), support for family income,
and governmental services (Baker 1995). For the most part,
family policy in the Canadian context focuses primarily on
assisting parents in raising their children (e.g., Baker 1995;
Conway 2003; Vail 2002). Children are viewed as the
nation’s future, and governments in Canada typically take
some of the responsibility for socializing and protecting
their investment (e.g., Baril et al. 2000; Beauvais and
Jenson 2001).
92 J Child Fam Stud (2012) 21:88–94
123
The question remains: Is same-sex marriage legislation
an exception to, or an exemplar of, Canada’s family policy?
Certainly marriage in general is a good example of
family policy, in that marriage promotes state-sanctioned
reproduction. ‘‘Governments and their agencies regulate
marriages and births to minimize social conflicts and birth
defects, and to help the transmission of culture and property
from one generation to another’’ (Baker 1995, p. 6).
Extending marriage to same-sex couples is hardly about
promoting state-sanctioned reproduction, however. Rather,
passing same-sex marriage legislation is primarily about
human rights or equality rights (e.g., Alderson 2004;
MacIntosh et al. 2010; Rose and Bureau 2009). Provincial
court systems determined as early as 2003 that not allowing
gays and lesbians to marry was unconstitutional, an argument
that convinced the federal government to pass Bill
C-38, the Civil Marriage Act, in 2005. Promoting equality
rights, although less salient in the Canadian context than
investing in children, is an important, albeit secondary,
aspect of family policy (e.g., Vail 2002).
Furthermore, it is naı¨ve to think that lesbian and gay
men exist in a vacuum, without families of origin and
families of procreation that they care about and care for,
whether in their own home or in extended family settings.
Not only do some lesbians and gay men choose to become
parents in the context of a gay relationship (e.g., via donor
insemination or adoption), but they are even more likely to
bring children from previous heterosexual relationships to
those relationships (approximately 1/3 of same-sex spouses
had been previously married, presumably in heterosexual
marriages; St. Amour and Girard 2009). In addition, lesbians
and gay men also have siblings and aging parents of
their own, as well as other extended family members—
some of whom need care. While the primary rationale for
same-sex marriage legislation may have been to further
equality rights, assisting same-sex couples to care for their
children and other family members is, perhaps, an unintended
side effect. Just as heterosexual couples can receive
parental benefits while caring for a new baby, so too can
gay or lesbian couples. Similarly, both heterosexual couples
and same-sex couples can take compassionate leave to
look after a terminally ill in-law.
Although same-sex marriage legislation may not be the
best example of family policy in Canada, neither is it an
exception to the rule. Same-sex marriage legislation would
be included in the first category of family policy (i.e.,
family legislation) according to Baker’s (1995) definition.
Furthermore, although the motivation in passing the samesex
marriage legislation (i.e., equality rights) is not Canada’s
primary motivation with respect to family policy, it is
an additional factor that influences family policy in Canada
as well as in other countries (particularly the Scandinavian
countries; Vail 2002). And, although not all gay and
lesbian couples are raising children, approximately 40% of
married gay and lesbian couples are living with either a
child or another family member (the figure is only 15% for
cohabiting gay and lesbian couples; Statistics Canada
2010). In other words, a large minority of married gay and
lesbian couples are caring for dependents—and this finding
does reflect Canada’s primary family policy concern of
supporting parents who are raising children.
To date, there is very little empirical data about how
same-sex marriage has affected Canadian couples and
families (e.g., Alderson 2004; MacIntosh et al. 2010); more
empirical studies would provide better information for
practitioners and policy makers alike. For example,
although there is Canadian research about lesbian parenting
(e.g., Leblond de Brumath and Julien 2007; Julien et al.
2008), and about aging gay and lesbian family issues
(Brotman et al. 2003, 2007), there is no research yet
available about same-sex divorce. Interestingly, the biggest
issue on the subject of same-sex divorce seems to involve
Americans who married in Canada—over 50% of same-sex
marriages in British Columbia between 2003 and 2007
involved American couples—and who subsequently seek
to divorce in American jurisdictions that do not recognize
their marriages (Wiltshire 2009). Although it is only a
minority of gay and lesbian couples who choose to marry
in Canada, those who do seem to be motivated in part by
the desire to provide security and legitimacy for their
family members. In addition to upcoming Canada Census
data (i.e., following the 2011 census), more empirical
research, both qualitative and quantitative, is needed to
shed light on the realities of lesbian and gay family life in
Canada.
References
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marriage. Canadian Journal of Human Sexuality, 13,
107–122.
Baker, M. (1995). Canadian family policies: Cross-national comparisons.
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Baril, R., Lefebvre, P., & Merrigan, P. (2000). Quebec family policy:
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Beauvais, C., & Jenson, J. (2001). Two policy paradigms: Family
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Leblond de Brumath, A., & Julien, D. (2007). Factors connected to the
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marriage in Canada: The impact of legal marriage on the first
cohort of gay and lesbian Canadians to wed. Canadian Journal
of Human Sexuality, 19, 79–90.
McCarthy, M. (2008). Five years ago today, gay marriage became
legal in Ontario—And equality has lived more happily ever after.
Retrieved from Martha McCarthy and Company website: http://
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Milan, A., Vezina, M., & Wells, C. (2007). Family portrait:
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recognition—One step forward, two steps back: A critical
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Services, 22, 74–90.
Ottosson, D. (2009). State-sponsored homophobia: A world survey of
laws prohibiting same- sex activity between consenting adults.
Brussels: International Lesbian, Gay, Bisexual, Trans, and
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presented at The Centre for Research on Families and Relationships’s
3rd International Conference. Edinburgh, June 2010.
Rose, H. A., & Bureau, M. F. (2009). Same-sex marriages in Canada:
A triumph of human rights? Invited paper presented at a Special
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meˆme sexe au Que´bec: Un bilan des cinq premieres annee´s.
Donnee´s Sociodemographiques en Bref, 13, 1–3.
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118-eng.htm.
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Feminism and Psychology, 14, 9–15.
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94 J Child Fam Stud (2012) 21:88–94
123
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CBC News in Review • September 2004 • Page 30

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CBC News in Review • September 2004 • Page 30
Focus
This News in Review
feature focuses
on the debate
over same-sex
marriages in
Canada. In June
2003 the Ontario
Court of Appeal
ruled that Canada’s
marriage laws
violated the Charter
rights of samesex
couples hoping
to marry—echoing
previous rulings
from courts in B.C.
and Quebec. The
decision set off a
flurry of debate as
the government
decided not to
appeal the ruling
and proceeded
with legislation
recognizing samesex
marriages.
Sections
marked with this
symbol indicate
content suitable for
younger viewers.
YV
CANADA DEBATES SAME-SEX MARRIAGE
Introduction
On June 10, 2003, Chief Justice Roy
McMurtry, Mr. Justice James
MacPherson, and Madam Justice Eileen
Gillese delivered a historic judgement.
After methodically demonstrating how
Canada’s existing marriage laws violated
the equality rights of gays and
lesbians under the Charter of Rights and
Freedoms, the Ontario Court of Appeal
ruled that Canada’s marriage law
“demeans the dignity of same-sex
couples” and is “contrary to the values
of a free and democratic society” (The
Globe and Mail, June 11, 2003). Then
the justices ordered that the definition
of marriage be changed to “the voluntary
union for life of two persons to the
exclusion of all others.” They also
directed Toronto’s city clerk and the
provincial registrar-general to accept
the marriage licences of two gay
couples married in 2001 under the
Christian tradition of publishing banns.
Within hours, Michael Leshner and
Michael Stark, one of the couples that
figured prominently in the court case,
were married in front of 50 friends at a
ceremony in Toronto City Hall. Leshner
said his “absolute faith in Canadian
values” proved instrumental in his
decision to persevere in the court battle
to earn marriage rights for gays and
lesbians.
While the courts had ruled in favour
of same-sex marriage in previous
rulings in British Columbia and Quebec,
the Ontario ruling called for immediate
action on the part of government.
Most provincial justice ministers accepted
the ruling and indicated that they
would abide by the decision of the
Ontario court. One provincial government—Alberta—vowed
to use everything
in its power to oppose same-sex
marriage. Premier Ralph Klein told
reporters, “If there is a move to sanctify
and legalize same-sex marriage as legal,
we will use the notwithstanding clause,
period, end of story.” In other words,
Klein let all of Canada know that he
was willing to turn to the rarely used
notwithstanding clause of the Charter of
Rights and Freedoms to exempt Alberta
from federal legislation having to do
with same-sex marriage.
On June 17, federal Justice Minister
Martin Cauchon announced that the
government would not appeal the
Ontario court’s decision and revealed
the wording of draft legislation that
would allow gay couples to marry.
Cauchon said, “It’s a question of dignity.
It’s a question of equality. And I
sincerely believe that the government is
going in the right direction” (Toronto
Star, June 17, 2003).
In order to ensure successful implementation
of the legislation, Cauchon
sent the draft bill to the Supreme Court
of Canada for review. It has been asked
to evaluate the legislation on the basis
of the authority of the federal government
to legally define marriage, the
compatibility of the act with the Charter
of Rights and Freedoms, and whether
the Constitution protects religious
leaders who choose not to sanctify
same-sex marriages. It is expected that
the Supreme Court of Canada will have
their review prepared by early 2004.
After that, the bill will be voted on in
the House of Commons.
The decision to formally legalize
same-sex marriages has been the source
of heated debate. Those favouring
same-sex marriages see the legislation
CBC News in Review • September 2004 • Page 31
Under section 33 of
the Charter (sometimes
called the
“notwithstanding
clause”), Parliament
or a legislature
can make a
particular law
exempt from
certain sections of
the Charter—the
fundamental
freedoms (in section
2), the legal
rights (in sections 7
to 14) and the
equality rights (in
section 15). However,
a law that
limits Charter rights
under the notwithstanding
clause
expires after five
years. This clause is
used very rarely.
Source:
www.pch.gc.ca/
charter-anniversary/
index_e.cfm
as the next step along the road toward
equal civil rights for gays and lesbians.
To many, it is an endorsement of equal
rights for all Canadians, regardless of
sexual orientation. The side opposed to
same-sex marriages has taken the
position that marriage is a key institution
in building society, both in a procreative
sense and from the perspective
of family values. They see no need to
redefine marriage, regardless of what
the courts are saying. Some suggest that
if the government wants to introduce a
“civil union” for same-sex partners that
would be fine—just don’t call it marriage.
Several of Canada’s religious
communities—such as the Roman
Catholic Church, the Evangelical
Fellowship, and the Islamic Society of
Toronto—have been vocal about their
objections to same-sex marriage.
From a political standpoint, it appears
that the parliamentary vote on same-sex
marriage legislation is going to be very
close. Early in the process, Prime
Minister Chrétien announced that the
bill would be put to a free vote in the
House of Commons. In other words,
Liberals would not have to vote with
their party and could oppose the bill.
On August 8, 2003, The Globe and
Mail reported that 48 Liberal MPs were
opposed to the legislation. Combine this
number with the Canadian Alliance and
Progressive Conservative MPs opposed
to the bill and it appears that about half
of the MPs in the House are in a position
to vote against same-sex marriage
legislation. Meanwhile, an Ipsos-Reid
survey in June 2003 stated that 54 per
cent of Canadians favour same-sex
marriage. A follow-up survey saw that
number drop to 49 per cent. (The Globe
and Mail, August 8-9, 2003) Clearly the
issue is too close to call.
With the Supreme Court review of
the draft bill pending, many political
analysts think that same-sex marriage
legislation will likely not be presented
in the House of Commons until early
2004. That leaves plenty of time for
more debate, although some parliamentarians
hope to debate the issue before
the Supreme Court ruling.
Did you know . . .
Same-sex marriage
is already legal in
Belgium and the
Netherlands?
Questions
1. What reasons did the Ontario Court of Appeal give for supporting samesex
marriages?
2. How did Canada’s provincial and federal leaders respond to the decision?
3. Why did the federal government ask the Supreme Court to review their
same-sex marriage bill?
4. Outline the arguments for and against same-sex marriages.
5. What evidence is there that Canadians are divided on the issue of samesex
marriage?
6. Where do you presently stand on the issue? Why?
CBC News in Review • September 2004 • Page 32
YV
CANADA DEBATES SAME-SEX MARRIAGE
Video Review
1. What happened on June 10, 2003, to change the definition of marriage in
Canada?
2. What did Pierre Trudeau do to change the status of gays and lesbians in
Canada?
3. What was “Canada’s Stonewall”?
4. Why was the Charter of Rights and Freedoms so important in the battle
for gay and lesbian rights in Canada?
5. What role have the courts played in the ongoing quest for equal rights for
homosexuals?
6. The Ontario court ruling was not the first decision in favour of same-sex
marriage. a) Name the two provinces that handed down rulings before
Ontario.
Provinces: 1.__________________________ 2. ___________________________
b) What distinguishes these rulings from the Ontario one?
7. What did Canada decide to do instead of appealing the Ontario court’s ruling?
8. What protection is there in the same-sex marriage bill for religious groups
that do not wish to sanctify same-sex marriages?
9. What position does the Vatican take regarding same-sex marriages?
10. Why did Prime Minister Chrétien reject the idea of a national referendum
on same-sex marriages?
Please view the
video carefully and
answer the questions
on this page.
Further Research
In order to keep
abreast of the
Supreme Court’s
rulings on this issue
visit www.sccccsc.gc.ca.
CBC News in Review • September 2004 • Page 33
CANADA DEBATES SAME-SEX MARRIAGE
Document Study
An Act Respecting Certain Aspects of Legal Capacity for Marriage
for Civil Purposes.
From the Department of Justice
Proposal for an Act respecting certain aspects of legal capacity for marriage for
civil purposes
WHEREAS marriage is a fundamental institution in Canadian society and the
Parliament of Canada has a responsibility to support that institution because it
strengthens commitment in relationships and represents the foundation of
family life for many Canadians;
WHEREAS, in order to reflect values of tolerance, respect and equality consistent
with the Canadian Charter of Rights and Freedoms, access to marriage for
civil purposes should be extended to couples of the same sex;
AND WHEREAS everyone has the freedom of conscience and religion under the
Canadian Charter of Rights and Freedoms and officials of religious groups are
free to refuse to perform marriages that are not in accordance with their religious
beliefs;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows:
• Marriage, for civil purposes, is the lawful union of two persons to the
exclusion of all others.
• Nothing in this Act affects the freedom of officials of religious groups to
refuse to perform marriages that are not in accordance with their religious
beliefs.
• Consequential amendments will be added in the bill that is introduced in
Parliament.
Questions for the Supreme Court
In the Reference, the Government of Canada has asked the Supreme Court of
Canada the following three questions about the draft bill:
• 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?
Questions
1. State three things that the new legislation is seeking to change regarding
the marriage laws of Canada.
2. Why do you think the government is asking for legal clarification of the
wording of the bill by the Supreme Court? Who are they trying to protect?
Please read the
draft copy of
Canada’s same-sex
marriage legislation
and answer
the questions at
the bottom of the
page.
Further Research
CBC Newsworld has
both information
and learning
activities on samesex
marriages at
www.cbc.ca/
newsreal/
teachers.html.
Select “Past Lesson
Plans” and “June
11, 2003.”
CBC News in Review • September 2004 • Page 34
CANADA DEBATES SAME-SEX MARRIAGE
Separation of Church and State
Jean Chrétien’s spokesperson Thoren
Hudyma put things into perspective
when she addressed the media in early
August 2003. She said: “The Prime
Minister has made his case several
times and his position is clear. His
position is that there needs to be a
separation between church and state and
as Prime Minister he has an obligation
to protect the equality rights of all
Canadians” (The Globe and Mail,
August 8, 2003). The separation of
church and state has been a key theme
in Canadian history. Governments have
endeavoured to guarantee that the
decisions they make, while in accordance
with the societal values of Canadians,
are free of the influence of religious
doctrine.
The Position of State:
To Legislate or Not to
Legislate
In 1967, then-justice minister Pierre
Trudeau proposed several amendments
to the law in order to decriminalize
homosexual activity. He said, “It’s
bringing the laws of the land up to
contemporary society, I think. Take this
thing on homosexuality. I think the
view we take here is that there’s no
place for the state in the bedrooms of
the nation” (www.cbc.ca – Indepth
Backgrounder: Gay Rights). Trudeau’s
criminal code amendments initiated the
gradual recognition of homosexual
rights by mainstream society. However,
it has been recent decisions in Canada’s
courtrooms that have demonstrated real
developments in the fight for equal
rights for gay and lesbian Canadians. In
1995, the Supreme Court of Canada
ruled that the “opposite sex” definition
used in the Old Age Security Act
violated the Charter of Rights and
Freedoms and “read in” sexual orientation
to the equality rights section of the
Charter. In 1999, the Supreme Court
instructed Parliament to proceed with
legislation recognizing the rights of gay
and lesbian Canadians. They made it
clear that gays and lesbians should not
be “expected to wait patiently for the
protection of their human dignity and
equal rights while governments move
toward reforms one step at a time.” The
Government responded in 2000 by
amending 68 statutes that gave spousal
benefits to same-sex partners. To appease
fears that the stage had been set
to legalize same-sex marriage, marriage
was defined in the preamble of the bill
as “the lawful union of one man and
one woman to the exclusion of all
others.” However, the legal precedent
was already there for the emergence of
a ruling favouring same-sex marriage.
With the Supreme Court already “reading
in” sexual orientation to the equality
rights of the Charter, it was just a matter
of time before the courts would force
the state’s hand on the issue of samesex
marriage. That moment came when
the Ontario Court of Appeal, echoing
similar rulings in B.C. and Quebec,
upheld a lower court’s decision regarding
same-sex marriage on June 10,
2003. Reinforcement came shortly after
the ruling, first when the federal government
promised to introduce samesex
marriage legislation and then, on
July 8, when the British Columbia
Court of Appeal lifted its ban on samesex
marriage.
To the federal government, granting
gays and lesbians the right to marry has
CBC News in Review • September 2004 • Page 35
become a human-rights issue. This
became clear on August 19 when the
Prime Minister faced political pressure
from his own caucus and the media at
the Liberal retreat in North Bay,
Ontario. When asked if he would hold a
national referendum on same-sex
marriage, Chrétien replied, “To have a
referendum to decide on the fate of a
minority, it’s a problem. The majority
will prevail on everything. Perhaps the
French language would have been
banned in Canada for a long time if it
had been a question of the majority
deciding. It’s why we have constitutions.
. . . It’s why we have a Charter of
Rights.” Chrétien’s likely successor,
Paul Martin, weighed in on the issue,
saying, “There are some issues that are
suitable for referendums. There are
other issues for Parliament to deal with.
This is something for Parliament to deal
with” (Toronto Star, August 20, 2003).
The Position of the
Church(s): To Sanctify or
Not to Sanctify
Canada’s religious communities have
also brought their perspectives to the
forefront. The Metropolitan Community
Church in Toronto (MCCT) brought
same-sex marriage to the national stage
in 2001 when Reverend Brent Hawkes
used the Christian tradition of publishing
marriage banns to marry a gay
couple, Kevin Bourassa and Joe
Varnell, and a lesbian couple, Elaine
and Anne Vautour. The Province of
Ontario refused to register the marriages.
The province’s refusal to register
the marriages, and the federal
government’s inaction on the issue of
same-sex marriage legislation,
prompted the MCCT to work with a
number of gay and lesbian couples to
initiate legal proceedings to force
government to recognize the right of
homosexuals to marry. These proceedings
led to the historic decision by the
Ontario Court of Appeal. While the
MCCT has been a vocal religious and
legal leader in the fight for same-sex
marriage, other churches have also
supported the idea of sanctifying samesex
marriages—namely the United
Church of Canada and at least one
diocese of the Anglican Church of
Canada. Hawkes summarized his
position when he said, “I believe that
most Canadians either support our right
to marry, that is they accept same-sex
marriage, or they believe the state has
no business in telling us that we may
not do so” (www.samesexmarriage.ca/
legal/on_couples.htm).
Other religious groups have voiced
their opposition to same-sex marriage.
Both the Evangelical Fellowship of
Canada and the Islamic Society of
Toronto have come out strongly against
same-sex marriage. However, it has
been the Roman Catholic Church that
has been most vocal in the debate. The
Catholic Church indicated immediate
disappointment in the court decision
regarding same-sex marriage. By midJuly,
the Vatican issued a world-wide
written directive to Catholic politicians.
“When recognition of homosexual
unions is proposed for the first time in a
legislative assembly,” the document
reads, “the Catholic lawmaker has a
moral duty to express his opposition
clearly and publicly and to vote against
it. . . . To vote in favour of a law so
harmful to the common good is gravely
immoral” (from the Vatican document
entitled “Considerations Regarding
Proposals to Give Legal Recognition to
Unions Between Homosexual Persons,”
www.cbc.ca, July 18, 2003). Thus, the
Vatican was weighing in on the issue
and directing Catholic politicians—like
CBC News in Review • September 2004 • Page 36
Jean Chrétien, Paul Martin, and Sheila
Copps—to vote according to their
religious tradition. Regardless of the
directive, Chrétien, Martin, and Copps
all agreed to vote in favour of same-sex
marriage legislation. At the end of July
2003, Bishop Fred Henry of Calgary
said that Chrétien “doesn’t understand
what it means to be a good Catholic”
and that he is “putting at risk his eternal
salvation” by pursuing legislation
recognizing same-sex marriages. Henry
went on to say, “I pray for the Prime
Minister because I think his eternal
salvation is in jeopardy. He is making a
morally grave error and he’s not being
accountable to God” (The Globe and
Mail, July 31, 2003). Finally, Monsignor
Peter Showenback of the Canadian
Conference of Catholic Bishops said
that Catholic lawmakers are “to use the
values that they have to oppose any
legal recognition that would put such
unions on the same basis as marriage”
(www.cbc.ca, July 31, 2003).
The Catholic Church ascribes to the
philosophy of natural law that St.
Thomas Aquinas describes as participation
in God’s divine law. Since marriage,
family life, and procreation are
intertwined, marriage can only be
between a man and a woman. Thus, a
definition of marriage that includes
same-sex partners would not be theologically
sound because a homosexual
couple cannot procreate. In fact, the
Catholic Church position on homosexuality
is that homosexual acts are a
violation of natural law and that homosexuals
should remain chaste.
Despite the vocal objections of religious
organizations like the Catholic
Church as well as other secular protest
groups, the Chrétien government plans
to pursue same-sex marriage legislation.
The long battle to maintain a separation
between church and state rages on.
To Consider
1. Briefly describe what is meant by the separation of church and state.
2. Write an outline of the position of the state on same-sex marriages. Make
sure you include at least seven points.
3. Explain the position of the following on the issue of same-sex marriage:
a) The Metropolitan Community Church of Toronto
b) The Roman Catholic Church
4. In your view, is there a workable compromise between the views of
church and state on this powerful issue? Explain.
CBC News in Review • September 2004 • Page 37
CANADA DEBATES SAME-SEX MARRIAGE
Crossfire
“Exclusion from marriage—a fundamental
societal institution—perpetuates
the view that same-sex relationships are
less worthy of recognition than opposite-sex
relationships. In doing so, it
offends the dignity of the person in
same-sex relationships.” — From the
Ontario Court of Appeal ruling on
same-sex marriage, quoted in The
Globe and Mail, June 12, 2003
“Today, the court has fundamentally
redefined marriage. Other courts have
ruled that redefining marriage is too big
a step to be made by the courts and
should properly be made by Parliament.”
— Bruce Clemenger of The
Evangelical Fellowship of Canada,
Catholic New Times, June 29, 2003
“Today is the death of homophobia in
the courtroom as we’ve known it.” —
Michael Leshner, a man who played a
key role in the court battle for same-sex
marriage in Ontario. Leshner was
married to his partner, Michael Stark,
within hours of the Ontario court ruling.
Quoted on www.cbc.ca, July 13
“To take an institution so near and dear
to so many people and change the
definition in this way is going too far.”
— Alberta Justice Minister Dave
Hancock, The Globe and Mail, June 19,
2003
‘It’s hard to understand the opposition.
Gays aren’t asking for government
money, tax breaks, preferential status in
seeking jobs, redress of past grievances,
or other rights or privileges that would
set them apart from others. Rather, gay
and lesbian couples want to be able to
The series of quotes
on this and the
next page captures
the essence of the
debate over samesex
marriage. Read
the quotes and
complete the
questions that
follow.
declare their commitment in the same
way as any couple who love each other
enough to marry.” — Anthony WilsonSmith
in an editorial for Maclean’s,
June 23, 2003
“Can we redefine marriage? Probably
not, that’s in the federal jurisdiction.
Can we say that we will not recognize
marriage in Alberta unless it adheres to
the ‘opposite-sex’ definition that we
have in our act? Yes, I believe we can.”
— Alberta Justice Minister Dave
Hancock revealing his government’s
decision to use the Charter’s notwithstanding
clause to oppose federal samesex
marriage legislation, quoted in The
Globe and Mail, June 18, 2003
“Society is not static. It’s in constant
evolution. It’s a question of dignity. It’s
a question of equality. And I sincerely
believe the government is going in the
right direction.” — Federal Justice
Minister Martin Cauchon on the
government’s decision to proceed with
same-sex marriage legislation, quoted
on www.cbc.ca, July 18, 2003
“To me, marriage is between a man and
a woman. If there are other arrangements
which happen to be man and man
and other arrangements which happen
to be woman and woman, that’s their
business. And that should be called
something else.” — Liberal MP Walt
Lastewka, The Standard, August 25,
2003
Archives
Visit the CBC’s
Digital Archives site
at www.cbc.ca/
archives and view
the audio-visual file
entitled “Gay and
Lesbian Emergence:
Out in Canada” for
further research.
CBC News in Review • September 2004 • Page 38
“My question to MPs is: Given the way
law functions in our land, are you
convinced that by changing the definition
of marriage that you are enriching
our culture? . . . Wouldn’t it be preferable
to deal with the fairness issue by
giving same-sex partners their own
definition but not break down the
essential nature and component of what
our society has built its self-understanding
on?’ — Brian C. Stiller, president of
Tyndale University College and Seminary
in Toronto, Toronto Star, August
3, 2003
“It shouldn’t be marriage. If they want a
union, it’s up to them. That’s it. Glory
be to God to live in Canada, marriage is
a man and woman.” — Conservative
MP Elsie Wayne on the issue of samesex
marriage legislation, The Globe and
Mail, May 9, 2003
“When I hear these members freak out
at the notion that the definition of
marriage should be modernized I have
to ask myself what world these members
are living in? Maybe they are just
insecure about their own sexual identity
that they cannot cope with the reality
that not everyone has the same sexual
orientation that they do.” — MP Alexa
McDonough reacting to Elsie Wayne’s
comments regarding same-sex marriage,
The Globe and Mail, May 9,
2003
“Thousand of years of tradition, tried
and true, outweigh anything that just
happens to be modern and catchy.” —
Tim Dooling of the group Canadians
Against Same-Sex Marriage, The Globe
and Mail, July 25, 2003
“The sanctity of marriage is more
challenged by heterosexuals divorcing
than by what other people—same-sex
people—are doing.” — Federal Amateur
Sports Minister Paul DeVillers,
Toronto Star, August 8, 2003
“If God is love, then wherever love is,
God is. If love is present in same-sex
marriages— and it undeniably is—then
God is present there also. No thinker
can convincingly rebut this.” — Ethics
columnist Tom Harpur, Toronto Star,
August 3, 2003
Analysis
1. After reading the quotes, indicate whether the speaker is for or against
same-sex marriage. Just write for or against in the margin beside the
quote.
2. Rank the “for” quotes and the “against” quotes from most relevant to
least relevant. Be prepared to explain the reasons for your choices.
3. Select one quote with which you most disagree and explain why you
disagree.
4. Select one quote that you feel most closely captures your view on the
issue of same-sex marriage. Write a paragraph (7-10 sentences) explaining
how the quote is a reflection of your point of view.
CBC News in Review • September 2004 • Page 39
CANADA DEBATES SAME-SEX MARRIAGE
Putting Things into Perspective
This, too, shall pass
Those things that most deeply
divide us can also unite. Remember
the great flag debate
of 1965? Thought not.
By James Travers. Toronto Star,
August 21, 2003. Reproduced with
permission — Torstar Syndication
Services
By rough count, there are a couple
of dozen flags flying around the
modest resort where federal Liberals
are meeting this week.
Every maple leaf turning in the
summer wind stirs national pride;
not one stirs the party’s collective
memory.
That’s a pity for a caucus struggling
with an issue as emotional and
sensitive as same-sex marriage. If
Liberals were to look into their past,
they would find reassurance that
those things that most deeply divide
can also unite.
For most Canadians, the flag is the
most unequivocal of symbols.
Proudly sewn on backpacks by Canadians
and by Americans preferring
to travel under another banner, its
distinctive simplicity is as easily
recognized abroad as it is beloved at
home.
It was not always that way.
Exactly 40 years ago this country
and its Liberal government were as
ferociously tearing themselves apart
over the flag as they are today over
extending marriage to gay and
lesbian couples.
Then, as now, there were fears
radical change would erode the
country’s values as well as its traditions.
On the now yellowed pages of
one newspaper, a columnist offered
James Travers is a
national affairs
columnist for the
Toronto Star. He
brings an interesting
perspective to
the same-sex
marriage debate. In
his opinion, the
debate can be
viewed in light of
other historic
debates in Canadian
history—
debates that have
seen a deeply
divided Canadian
populace eventually
come to a new
understanding of a
controversial issue.
Please read Travers’
article and answer
the questions that
follow.
Archives
For a fuller audiovisual
account of
the Canadian flag
debate, consider a
visit to the CBC
Digital Archives at
www.cbc.ca/
archives and view
the file “The Great
Canadian Flag
Debate.”
this judgment about the flag, Prime
Minister Lester Pearson, and national
unity: “A rag of appeasement,
thrust upon us by a dictator who has
split the country.”
A letter published by the Toronto
Star found a little optimism in the
prevailing angst. “If all Canadians
will fight as vigorously under the
new flag as they have over it, there
is still hope for us as a great nation.”
There is, of course, still hope for us
as a great nation. But greatness
doesn’t come easily or without the
pain that is part of trading what is
familiar for what is right.
Pearson’s 1963 legislation was no
exception.
By the time a new flag designed in
Canada replaced an old one borrowed
from Britain, Parliament had
been deadlocked for six months and
Pearson had been forced to invoke
closure on a debate that seemed
destined to leave permanent scars.
For those keeping score, 73 Conservatives
led by John Diefenbaker
voted against a piece of cloth that
now seems as much a part of
Canada as hockey, the frozen north,
and peacekeeping.
Despite all that hostility, despite
the refusal of a few diehard empire
loyalists to lower the Union Jack or
the Red Ensign, the new flag was
hoisted on February 15, 1965.
And then something happened
that was even more worthy of celebration.
Canadians stopped arguing if
three maple leafs, Pearson’s preferred
version, was better than one,
or vice versa. They stopped arguing
that the stripes should be blue, not
red, and that the flag failed to
capture the essence of the country’s
founding nations.
CBC News in Review • September 2004 • Page 40
Literally and figuratively, a new
flag was run up the pole and Canadians
more or less happily saluted. In
concepts and phrases that wouldn’t
become common for a couple of
decades, the country found closure
and moved on.
There are differences between
finding a flag and changing the
accepted definition of marriage and
there are differences in the Canada
of the ’60s and the one finding its
way through the early years of a
sometimes scary new millennium.
There are also similarities.
Pearson understood that a country
that had come of age in two world
wars wouldn’t be fully formed without
its own flag. Knowing that, he
did what had to be done.
Jean Chrétien also understands
that a country that compromises
human rights is diminished. He, too,
is doing what must be done.
That determination surfaced here
again yesterday as a badly divided
Liberal caucus tried to find an easy
way around what is now a significant
political problem. When it was
suggested that the decision-making
burden could be shifted to citizens
in a referendum, the Prime
Minister’s response was unequivocal.
Minority rights guaranteed by the
Constitution are not subject to the
tyranny of the majority. The government
will, as it should, stay this
difficult course.
No one here is discounting just
how difficult that will be. In some
cases, the views of caucus members
are so different that they share only
emotional intensity.
Still, the way ahead is clear.
Liberals who know how to agree
to disagree will continue to debate,
to search for loopholes the courts
will close with the Charter of Rights
and Freedoms, and to press ahead
with legislation. When the time
comes, they will vote not with party
whips on their backs but with their
conscience.
Whatever they decide, the sweep
of history, the steady advancement
of human rights and, yes, the Constitution,
make the outcome certain.
Like the flag debate, this controversy,
too, will pass.
Analysis
1. How is the flag debate of the 1960s similar to the same-sex marriage
debate of 2003?
2. Matthew Mendelsohn, the director of the Canadian Opinion Research
Archive, claims that the same-sex marriage debate is an indicator of generational
attitudes. According to Mendelsohn, younger Canadians are
more inclined to support same-sex marriages while the 50+ generation are
more likely to oppose same-sex marriage. Why do you think this might be
the case?
3. Is Travers’ argument fair? Is the argument over the flag in the same
league as an argument involving a societal institution like marriage? Be
prepared to defend your position.
4. How do you think society will view the same-sex marriage issue in 40 years
time? Explain.
CBC News in Review • September 2004 • Page 41
CANADA DEBATES SAME-SEX MARRIAGES
Final Activity: The Charter and You
The Constitution Act was proclaimed
by Queen Elizabeth on April 17, 1982.
The companion to the Constitution was
the Charter of Rights and Freedoms, a
document that represented the fulfillment
of Prime Minister Pierre
Trudeau’s vision of a just society. The
Charter makes clear the specific rights
and freedoms that all Canadians enjoy.
Activity #1: Equality Rights
The gay and lesbian community has argued that their equality rights were
being violated, and the courts agreed. It was this effective use of the Charter
that won them their case.
Work with a partner and read Section 15 of the Charter of Rights and Freedoms.
How might the gay and lesbian community have used this section of the
Charter to argue that their equality rights were being violated? Report your
findings to the class. Do you agree with the ruling? Explain.
15. (1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
Activity #2: The “Notwithstanding” Clause
The drafting of the Charter of Rights and Freedoms proved to be difficult
business for the politicians who put the document together. The main areas of
disagreement revolved around an amendment formula and provisions allowing
provinces to opt out of certain legislation. Eventually the premiers and the
prime minister agreed to a way to amend the constitution and inserted the
“notwithstanding” clause to give provinces the ability to pass legislation that
could exempt them from certain parts of the Charter. This is the section of the
Charter that Alberta Premier Ralph Klein vows to use if the government proceeds
with legislation regarding same-sex marriage.
Working with a partner, read Section 33 of the Charter. What are the limitations
that Alberta will face if they opt to use this section of the Charter? Why
do you think Klein is prepared to use the “notwithstanding” clause? What
difficulties present themselves when a province decides not to recognize a
minority group’s rights under the Charter? Record your findings and share your
conclusions with the class.
33. (1) Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.
Further Research
For more on the
Charter of Rights
and Freedoms: See
the Charter at:
http://
laws.justice.gc.ca/
en/const/
annex_e.html; Read
about the Charter
at: www.pch.gc.ca/
charter-anniversary/
index_e.cfm.
CBC News in Review • September 2004 • Page 42
(2) An Act or a provision of an Act in respect of which a declaration made
under this section is in effect shall have such operation as it would have but
for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five
years after it comes into force or on such earlier date as may be specified in
the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made
under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
Activity #3: Religious Rights
Some religious groups are very concerned about passing laws regarding samesex
marriage. One of the main fears these groups have expressed has to do with
being forced to perform same-sex marriage ceremonies even though their
religious doctrine forbids such ceremonies. This is one of the main reasons that
Prime Minister Chrétien has asked the Supreme Court of Canada to review the
draft legislation regarding same-sex marriages. However, the Charter also
protects a person’s religious rights in Section 2 under the heading “Fundamental
Freedoms.”
Working with a partner, read Section 2 of the Charter. How could a religious
group use this section of the Charter to defend its right not to perform samesex
marriage ceremonies? Record your findings and share your conclusions with
the class.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Extension Activity: You Be the Judge
Read the draft legislation of “The Act Respecting Certain Aspects of Legal
Capacity for Marriage for Civil Purposes” at: www.cbc.ca/news/indepth/
background/gayrights_ottawalaw.html.
Prepare a report that answers each of the following questions in 7-10 sentences.
• How will the act change the definition of marriage in Canada? Be specific.
• What benefits do the gay and lesbian community stand to gain from the
legislation? Please provide specific examples.
• What provisions have been included to protect the rights of religious
groups in the legislation? Are these provisions enough or should the
government have gone further?
• Finally, clearly state your position on the legislation. Should the act be
passed by Parliament? Support your position with specific reference to
your knowledge of the debate surrounding same-sex marriage and the
Charter of Rights and Freedoms.
ORIGINAL PAPER
Canada’s Same-Sex Marriage Law: Exception to or Exemplar
of Canada’s Family Policy?
Hilary A. Rose
Published online: 17 April 2011
Springer Science+Business Media, LLC 2011
Abstract Family policy in Canada is primarily concerned
with assisting parents raise their children. This fairly singular
approach to family policy is ironic given that Canada
does not have a nationally-coordinated family policy. The
development of a national family policy has been hampered
by Canada’s decentralized governmental structure
(i.e., federal and provincial, as well as territorial, governments)
and other factors such as diverse geography and
different traditions (e.g., a tradition of common law in
English Canada, and civil law in Quebec). A recent addition
to Canada’s family policy is Bill C-38, The Civil
Marriage Act (2005), the law legalizing same-sex marriage.
To put Canada’s same-sex marriage law into context,
this article presents some preliminary statistics about samesex
marriage in Canada, and considers whether same-sex
marriage legislation is a good example of Canadian family
policy, or an exception to the rule that Canadian family
policy focuses primarily on helping parents socialize their
children.
Keywords Same-sex marriage Legislation
Family policy Parenting Children
Introduction
Family policy is largely a twentieth century invention. It
developed first in Europe and spread over the course of the
century to North America and other parts of the world (e.g.,
Australia, China, Japan). Family policy is seen as a subset
of social policy (e.g., Kamerman and Kahn 1997), and it
illustrates a government’s attempts to regulate the lives of
its citizens and the relations among them. From the government’s
perspective, life events such as birth, marriage,
and death have to be monitored and regulated (e.g., China’s
one-child policy) in order to promote the well-being of a
nation. Gender equality, sexual reproduction, child-rearing
practices, domestic violence, and inheritance are all
examples of issues that can be covered by family policy
(e.g., Baker 1995; Conway 2003; Vail 2002), although
some issues take priority over others depending on the
concerns of a given nation. Sweden, for example, explicitly
uses family policy to foster equality rights (Vail 2002).
In the Canadian context, family policy refers primarily
to legislation and governmental programs that support
parents in raising their children. Why the emphasis on
children? Because ‘‘children are the source of renewal of
the human capital of an economy’’ (Baril et al. 2000, p. 5),
or an investment in the nation’s future (e.g., Beauvais and
Jenson 2001). Thus, Canadian family policy focuses primarily
on families with children (e.g., Baker 1995; Conway
2003; Vail 2002), reflecting the common practice in the
family policy field of defining families as multi-generational
system of parents raising children (e.g., Kamerman
and Kahn 1997). As one example of Canadian family
policy, same-sex marriage legislation (i.e., Bill C-38, the
Civil Marriage Act 2005) is not, however, explicitly concerned
with children. Although in some cases same-sex
marriages involve children, in most cases they do not (e.g.,
Statistics Canada 2010). The purpose of this paper is to
briefly review family policy in Canada, to examine samesex
marriage in Canada, and to determine whether samesex
marriage legislation is an exception to, or an exemplar
of, Canadian family policy.
H. A. Rose (&)
Department of Applied Human Sciences, Concordia University,
VE-321.02, 1455 de Maisonneuve Blvd. West, Montreal,
QC H3G 1M8, Canada
e-mail: hrose@alcor.concordia.ca
123
J Child Fam Stud (2012) 21:88–94
DOI 10.1007/s10826-011-9479-7
Definitions of Family Policy
In Canada, as in other countries, there is no general consensus
on how to define family policy (Baril et al. 2000)
beyond a vague notion of ‘‘state intervention in family life’’
(Baker 1995, p. 3). Family policies have been developed to
promote gender equality (e.g., Vail 2002), to regulate
sexuality and reproduction (e.g., Baker 1995), to balance
work and family life (e.g., Skrypnek and Fast 1996), as
well as to support parents who are raising children. One
Canadian researcher defined family policy as ‘‘a coherent
set of principles about the state’s role in family life which
is implemented through legislation or a plan of action’’
(Baker 1995, p. 5). Another Canadian researcher described
family policy as ‘‘the policies, programs, laws, and regulations
designed explicitly to support families in raising
children. It includes policies that support parents and
communities in providing environments that ultimately
assist a child’s development’’ (Vail 2002, p. 3).
According to Baker (1995), there are three categories of
Canadian family policy. The first category of family policy
involves legislation (both federal and provincial) addressing
family issues such as marriage, reproduction, and
divorce. Canada’s Civil Marriage Act (2005) is an example
of this category. The second category involves governmental
support for family income (e.g., parental leave and
benefits, family allowance, and child tax credits); an
example of this category is the federal family allowance
program that ran nationally from 1945 to 1992, in which
Canadian mothers received monthly ‘‘baby bonus’’ cheques
from the government. The third category of family policy
involves provision of services such as child care, child
protective services, and home care. Quebec’s $7-a–day
subsidized child care program is an example of this
category.
Factors Influencing Family Policy
There is, however, no national family policy in Canada
(e.g., Conway 2003; Vail 2002). A number of factors
promote the development of a national family policy
including national values, demographic trends, and political
structure. According to Vail, non-consensus about the
importance of gender equality (e.g., in the United States),
or on whether children versus families should take priority
in policy decision-making (e.g., in Australia), contributes
to the lack of a national family policy. Nations with a
tradition of socialist governments (e.g., Sweden) are more
likely to have national family policies (Baker 1995).
Demographic trends, such as declining fertility and the
aging population, can also influence whether a country has
a national family policy (e.g., Baker 1995).
The biggest factor affecting family policy is Canada’s
decentralized political structure with two levels of government
(i.e., federal and provincial) responsible for policy
and legislation (Vail 2002). For example, marriage falls
under federal jurisdiction, but the solemnization of marriage
falls under provincial jurisdiction (e.g., in British
Columbia, only one member of a couple has to apply for a
marriage licence, but she or he has to be 19 years of age. In
Saskatchewan, both members of a couple have to apply for
a marriage licence, but they only have to be 18 years of
age).
Similarly, parental leave and benefits as well as divorce
are also affected by Canada’s decentralized political
structure. At the federal level, unpaid maternity and
parental leaves are available for childbirth or adoption for
up to a year, with Employment Insurance benefits paid to
eligible employees for up to 50 weeks (Employment
Insurance Act 1996). Provinces vary, however, on specific
details such as how soon maternity leave can start prior to
the expected date of birth (e.g., 11 weeks in British
Columbia, 17 weeks in Newfoundland), or previous length
of employment in order to be eligible (e.g., 0–12 months).
Divorce is another case where, although the Divorce Act
(1985) is federal, divorce support and child custody laws
can fall under provincial jurisdiction. For example, federal
child support guidelines inform most Canadian jurisdictions;
Manitoba, Quebec, and New Brunswick, however,
follow provincial child support guidelines. (Provincial
child support guidelines are also used in cases nation-wide
when cohabiting parents separate.)
Furthermore, Canada’s decentralized political structure
is not the only challenge to a national family policy.
‘‘Disputes over jurisdiction have typified Canadian social
policy development. Added to this, Canada is a large
country, relatively sparsely populated by culturally and
racially diverse people from many different backgrounds,
with two official languages, and two different systems of
civil law’’ (Baker 1995, p. 337). Specifically, law in English
Canada is influenced by British common law, whereas
law in Quebec is influenced by the French Code Civil. As
an example, laws with respect to cohabitation differ greatly
from province to province, and especially in Quebec where
civil code law does not recognize the relationships of
cohabiting couples (e.g., as in the case of inheritance when
one member of a cohabiting couple dies).
In summary, Canada, like the United States, has no
national family policy, leading one author to refer to
Canada’s ‘‘patchwork of entitlements’’ (Hurley 2005, p. 3).
Several factors contribute to the lack of a nationallycoordinated
family policy, with the most important being
Canada’s decentralized system of government, in which
both the federal government and the provincial and territorial
governments take responsibility for family policy. In
J Child Fam Stud (2012) 21:88–94 89
123
general, laws about the legality of specific family events
such as marriage and divorce (i.e., that they can occur) are
federal; laws about how such events occur are largely
provincial. Another important factor has to do with different
legal traditions in Canada: common law in English
Canada, and civil law in Quebec.
Same-Sex Marriage in Canada
Over 5 years ago, on July 20, 2005, Canada’s same-sex
marriage law, or Bill C-38 was signed into law (Hurley
2005), allowing same-sex couples to marry nation-wide
(several provinces had already legalized same-sex marriage
beginning in 2003). Following the Netherlands, Belgium,
and Spain, Canada was the fourth country in the world to
extend marriage to same-sex couples. Such a dramatic
policy change does not occur over night. As Dutch legal
scholar Waaldijk (2001) predicted, several decades of
‘‘small change’’ precede same-sex marriage legislation.
Waaldijk’s theoretical model is the only model that I am
aware of that examines national progress toward the
legalization of same-sex marriage, and as such I have used
his model elsewhere to describe Canada’s progress toward
same-sex marriage (Rose 2010). In examining laws about
homosexuality in Europe, Waaldijk (2001, 2004) concluded
that there is a pattern of steady progress toward the
legalization of same-sex marriage. This progress involves a
standard (i.e., invariant) sequence of events, each preceding
the next. According to Waaldijk (2001), this series of
‘‘small changes’’ results in big change: the legalization of
same-sex marriage.
According to Waaldijk’s (2001) model, the first event in
the sequence involves the decriminalization of homosexuality
(i.e., sodomy), and can include the equalization of the
age of consent between gay and heterosexual couples; in
Canada, the decriminalization of homosexuality occurred
in 1969 with an amendment to Canada’s Criminal Code
(e.g., Fisher 2004); Canada has yet to equalize age of
consent (Ottosson 2009). The next event involves passing
explicit anti-discrimination laws such as equality rights
legislation; with an amendment to Canada’s Human Rights
Act in 1996, Canada passed explicit anti-discrimination
law (e.g., Fisher 2004). The final event leading to the
legalization of same-sex marriage involves the recognition
of same-sex partners, and the provision of partner benefits;
in 2000, Canada passed the Modernization of Benefits and
Obligations Act (2000), amending 68 federal statues to
extend benefits to members of same-sex couples. According
to Waaldijk (2001), once these three events have
occurred, the stage is set for a nation to legalize same-sex
marriage; as Waaldijk’s model predicted, Canada passed
same-sex marriage legislation (Hurley 2005).
Since the passing of Bill C-38, on July 20, 2005, family
life in Canada has changed very little. Most Canadian
families have not been affected by the new law, as data
show that same-sex couples represent an extremely small
proportion of all Canadian couples (i.e., less than 1%), and
to date only a small percentage (16%, with a high of 21.5%
in Ontario, and a low of 9% in Quebec) of all same-sex
couples marry (Milan et al. 2007). For same-sex couples
that marry, however, their lives have changed in meaningful
ways (e.g., Webb 2008). As just one example, on the
day two lesbian mothers married each other in Toronto,
their 12-years-old son said ‘‘Now nobody can say I don’t
have a real family’’ (McCarthy 2008). As with heterosexual
marriages, some same-sex marriages end in divorce. Canada’s
first same-sex divorce occurred in 2004 (e.g., SameSex
Divorce 2004), before same-sex marriage was legal
nationally. In 2003, shortly after same-sex marriage was
legalized in Ontario, a lesbian couple married; a week later,
they filed for divorce. It took a year for the divorce to be
granted (in part because of the discrepancy between
Ontario’s marriage law–under provincial jurisdiction–and
Canada’s Divorce Act 1985, which is under federal
jurisdiction).
Preliminary Statistics on Same-Sex Marriage
There are still very few statistics available with respect to
same-sex marriage in Canada. Most of the statistics
available are either from census and other data collected by
Statistics Canada, or from various provinces’ departments
of vital statistics. Statistics Canada conducts a census every
5 years (i.e., in 2006, 2011), so to date there has only been
one national census since the legalization of same-sex
marriage (the most recent census was conducted 10 months
after the law was passed). Statistics Canada will conduct
another national census in 2011, and at that time, we can
anticipate a much clearer picture of same-sex marriage in
Canada. In addition, each province and territory collects
vital statistics data (e.g., births, marriages, deaths),
although as each province collects somewhat different data,
it is not always possible to make comparisons among them.
For example, Ontario, the first province to legalize samesex
marriage (in 2003), does not collect data on the gender
of people who marry; thus, Canada’s most populous
province does not have accurate vital statistics data on the
number of same-sex marriages.
British Columbia and Quebec, the second and third
provinces to legalize same-sex marriage (in 2003 and 2004,
respectively), each have 5 years of vital statistics data that
includes same-sex marriage data. There are both similarities
and differences in the same-sex marriage statistics
from B.C. and Quebec. As an example of a difference, gay
90 J Child Fam Stud (2012) 21:88–94
123
men (57%) are more likely than lesbians (44%) to marry in
Quebec (St. Amour and Girard 2009). In B.C., on the other
hand, lesbians (56%) are more likely than gay men (44%)
to marry (B.C. Vital Statistics Agency 2003, 2004, 2005,
2006, 2007, 2008). These gender differences hold for all
years that the vital statistics data are available (see
Table 1). In Quebec, 82% of same-sex couples that marry
are residents of Quebec, with 18% residing elsewhere (St.
Amour and Girard 2009). In B.C., on the other hand, only
45% of same-sex couples that marry are residents of B.C.,
with 55% residing elsewhere (primarily the United States;
B.C. Vital Statistics Agency 2003, 2004, 2005, 2006, 2007,
2008). This finding indicates that B.C., like Quebec to a
lesser extent (St. Amour and Girard 2009), is perceived to
be a ‘‘same-sex marriage destination,’’ particularly by
Americans. These residential differences hold for all years
with one exception (see Table 2). In 2008, for the first
time, more same-sex residents (n = 400) than non-residents
(n = 330) married in B.C.
With respect to similarities, there is a noticeable trend in
the number of same-sex weddings over time in both Quebec
and B.C. In each case, there is a big jump in the
number of same-sex weddings from the first partial year
following legalization (i.e., 2003 in B.C., 2004 in Quebec;
B.C. Vital Statistics Agency 2003, 2004, 2005, 2006, 2007,
2008; St. Amour and Girard 2009) to the first full year
following legalization (see Table 1). In addition, in both
jurisdictions, there is a higher than average number of
same-sex weddings in the second full year, followed by a
leveling off in the third full year. This pattern suggests an
initial period of ‘‘catch-up’’ (St. Amour and Girard 2009),
as lesbians and gay men took advantage of the opportunity
to marry as soon as they could. This catch-up/level-off
pattern is repeated in the number of same-sex marriages in
B.C. compared to all marriages in B.C. (B.C. Vital Statistics
Agency 2003, 2004, 2005, 2006, 2007, 2008). On
average, over the 5-years period for which complete data
are available (i.e., 2004–2008), 3.75% of all marriages in
B.C. were same-sex marriages. In the second full year after
legalization, there was a higher than average percentage of
same-sex marriages (4.47%), followed by a lower than
average percentage (2.67%) in the third full year after
legalization.
Other evidence that same-sex couples had to wait in
order to marry is their higher than average age at marrying;
in both Quebec (St. Amour and Girard 2009) and B.C.
(Statistics Canada 2007), lesbian and gay individuals who
married were approximately a decade older than heterosexual
individuals who married. The average age of lesbians
who married in B.C. and Quebec was 41.5 years; the
average age of gay men was 43 years. Over time, both
Quebec and Alberta (Service Alberta 2005, 2006, 2007)
showed a decrease in average age of gay and lesbian
individuals who married. In Quebec, in 2004, gay men who
married were on average 44 years of age, and lesbians were
on average 42 years of age (St. Amour and Girard 2009).
By 2008, gay men who married were on average 42 years
of age, and lesbians were on average 40 years of age. In
Alberta (where same-sex marriage became legal only after
Bill C-38 was passed in 2005), the median age of lesbian
and gay individuals who married decreased from
40–44 years in 2005, to 35–39 years in 2006, to
30–34 years in 2007 (Service Alberta 2005, 2006, 2007).
The higher than average age at marrying compared to
heterosexuals, coupled with the decreasing average age at
marrying for gay men and lesbians over time, indicate that
gay men and lesbians had to postpone their marriage plans
until same-sex marriages were legal.
For over 2/3 s of same-sex couples that married, their
marriages were first marriages. In Alberta, 66.1% of samesex
marriages were first-time marriages for both spouses
(Service Alberta 2005, 2006, 2007); in Quebec, 73.8% of
same-sex marriages were first-time marriages for both
spouses (St. Amour and Girard 2009). In Alberta, 27% of
Table 1 Same-sex weddings by gender, 2003–2008
British Columbia weddingsa Quebec weddingsb
Female Male Total Female Male Total
2003 400 335 735c – ––
2004 606 458 1064 97 148 245c
2005 569 443 1012 173 278 451
2006 340 273 613 272 349 621
2007 492 370 862 216 251 467
2008 403 328 731 193 262 455
a British Columbia Vital Statistics Agency (2003, 2004, 2005, 2006,
2007, 2008)
b St. Amour and Girard (2009)
c Partial year following legalization of same-sex marriage
Table 2 Same-sex weddings by residence, 2003–2008
British Columbia weddingsa Quebec weddingsb
Resident Other Total Resident Other Total
2003 287.5 447.5 735c – ––
2004 457 607 1064 221 24 245c
2005 401.5 610.5 1012 364 87 451
2006 275.5 337.5 613 501 120 621
2007 377.5 484.5 862 403 64 467
2008 400.5 330.5 731 369 86 455
a British Columbia Vital Statistics Agency (2003, 2004, 2005, 2006,
2007, 2008)
b St. Amour and Girard (2009)
c Partial year following legalization of same-sex marriage
J Child Fam Stud (2012) 21:88–94 91
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same-sex marriages represented a second marriage for one
spouse, and 6.8% represented a second marriage for both
spouses (Service Alberta 2005, 2006, 2007). In Quebec,
20.5% of same-sex marriages represented a second marriage
for one spouse, and 3.7% represented a second
marriage for both spouses (an additional 1.9% of same-sex
marriages were conversions from civil unions; St. Amour
and Girard 2009). Furthermore, data from Quebec show
that same-sex civil marriages are more common than samesex
religious marriages: 74.1% of lesbian couples and
75.7% of gay male couples had same-sex civil marriages;
25.9% of lesbian couples and 24.3% of gay male couples
had same-sex religious marriages (the United Church of
Canada, the Unitarian Church, the Metropolitan Community
Church, and some liberal Protestant churches and
Jewish synagogues conduct same-sex marriages).
Perhaps not unexpectedly, data from Census 2006 show
that half of all married same-sex couples (i.e., 50%) live in
Canada’s three largest metropolitan areas (Statistics Canada
2009). Over 1/5 of all married same-sex couples in
Canada live in the greater Toronto area (21.2%). Another
18.4% live the in greater Montreal metropolitan area, and
10.3% live in the greater Vancouver area. Household
composition data, on the other hand, show some interesting
differences in terms of gender and marital status (Statistics
Canada 2010). By far, the majority of gay and lesbian
couples live alone; 85% of gay male couples, and 74% of
lesbian couples live alone. These numbers decrease, however,
for married couples; 61% of married gay male couples,
and 56% of married lesbian couples live alone. It is
hardly surprising that 15% of lesbian couples have one or
more children living with them, but married lesbian couples
are more likely (21%) than cohabiting lesbian couples
(14%) to have children living with them. Almost 3% of gay
male couples have one or more children living with them,
but married gay male couples are more likely (8%) than
cohabiting gay male couples (2%) to have children living
with them.
Perhaps the most surprising finding concerns other
family members (i.e., not children) living in the home with
same-sex couples (Statistics Canada 2010). Approximately
10% of all same-sex couples had another family member
living with the home with them, and again, this figure
increased for married couples. Almost 1/5 of married lesbians
(18%) had another family member living with them,
and another 2% had both a child and another family
member living with them. For married gay male couples,
the increase was even more dramatic: 29% of married gay
men lived with another family member (not a child), and
another 1% lived with both a child and another family
member. Thus, the households of same-sex couples seem to
be more complex than we might imagine. In addition, it
appears as though living with a child or another family
member is possibly a motivating factor in choosing to
marry. Lesbians in particular seem to be motivated to
marry by having one or more children living with them,
whereas gay men seem to be motivated to marry by having
another family member living with them. Regardless of the
gender difference, the presence an additional family
member (child or other member) in the home seems to
motivate same-sex couples to marry.
Besides vital statistics and population reports, there is
very little published research on the topic of same-sex
marriage in Canada. Although there are a number of articles
that discuss the historical and legal context of samesex
marriage in Canada (e.g., Cotler 2006; Mule´ 2010;
Wilkinson 2004), there are only two empirical studies
published to date. In each case, the study consists primarily
of semi-structured qualitative interviews with married
(Alderson 2004; MacIntosh et al. 2010) and soon-to-bemarried
(Alderson 2004) gay and lesbian couples about
their experiences of same-sex marriage. In each study, the
researchers found that same-sex marriage benefitted the
respondents in a number of ways: increased recognition
and legitimization in society (i.e., ‘‘marriage’’ as a universally
understood construct), the importance of acquiring/having
the rights and responsibilities associated with
marriage (e.g., spousal benefits), and increased connection
to both spouse (‘‘commitment,’’ Alderson 2004; ‘‘closeness,’’
MacIntosh et al. 2010) and family. In each study, a
minority of couples had children (33% of couples, mostly
lesbian, MacIntosh et al. 2010); many of these participants
had adopted her or his spouse’s biological child (Alderson
2004).
Same-Sex Marriage: Exception or Exemplar?
As previously discussed, Canada has no national family
policy given its decentralized political structure and distinct
cultures (Baker 1995; Conway 2003; Vail 2002).
Family policy is therefore is a function of different levels
of government, different geographical regions, and different
cultural traditions. Nevertheless, most family-related
policy falls under provincial jurisdiction, as does health and
education. Three types of family policy exist in Canada:
family legislation (of which Canada’s Civil Marriage Act
2005, would be an example), support for family income,
and governmental services (Baker 1995). For the most part,
family policy in the Canadian context focuses primarily on
assisting parents in raising their children (e.g., Baker 1995;
Conway 2003; Vail 2002). Children are viewed as the
nation’s future, and governments in Canada typically take
some of the responsibility for socializing and protecting
their investment (e.g., Baril et al. 2000; Beauvais and
Jenson 2001).
92 J Child Fam Stud (2012) 21:88–94
123
The question remains: Is same-sex marriage legislation
an exception to, or an exemplar of, Canada’s family policy?
Certainly marriage in general is a good example of
family policy, in that marriage promotes state-sanctioned
reproduction. ‘‘Governments and their agencies regulate
marriages and births to minimize social conflicts and birth
defects, and to help the transmission of culture and property
from one generation to another’’ (Baker 1995, p. 6).
Extending marriage to same-sex couples is hardly about
promoting state-sanctioned reproduction, however. Rather,
passing same-sex marriage legislation is primarily about
human rights or equality rights (e.g., Alderson 2004;
MacIntosh et al. 2010; Rose and Bureau 2009). Provincial
court systems determined as early as 2003 that not allowing
gays and lesbians to marry was unconstitutional, an argument
that convinced the federal government to pass Bill
C-38, the Civil Marriage Act, in 2005. Promoting equality
rights, although less salient in the Canadian context than
investing in children, is an important, albeit secondary,
aspect of family policy (e.g., Vail 2002).
Furthermore, it is naı¨ve to think that lesbian and gay
men exist in a vacuum, without families of origin and
families of procreation that they care about and care for,
whether in their own home or in extended family settings.
Not only do some lesbians and gay men choose to become
parents in the context of a gay relationship (e.g., via donor
insemination or adoption), but they are even more likely to
bring children from previous heterosexual relationships to
those relationships (approximately 1/3 of same-sex spouses
had been previously married, presumably in heterosexual
marriages; St. Amour and Girard 2009). In addition, lesbians
and gay men also have siblings and aging parents of
their own, as well as other extended family members—
some of whom need care. While the primary rationale for
same-sex marriage legislation may have been to further
equality rights, assisting same-sex couples to care for their
children and other family members is, perhaps, an unintended
side effect. Just as heterosexual couples can receive
parental benefits while caring for a new baby, so too can
gay or lesbian couples. Similarly, both heterosexual couples
and same-sex couples can take compassionate leave to
look after a terminally ill in-law.
Although same-sex marriage legislation may not be the
best example of family policy in Canada, neither is it an
exception to the rule. Same-sex marriage legislation would
be included in the first category of family policy (i.e.,
family legislation) according to Baker’s (1995) definition.
Furthermore, although the motivation in passing the samesex
marriage legislation (i.e., equality rights) is not Canada’s
primary motivation with respect to family policy, it is
an additional factor that influences family policy in Canada
as well as in other countries (particularly the Scandinavian
countries; Vail 2002). And, although not all gay and
lesbian couples are raising children, approximately 40% of
married gay and lesbian couples are living with either a
child or another family member (the figure is only 15% for
cohabiting gay and lesbian couples; Statistics Canada
2010). In other words, a large minority of married gay and
lesbian couples are caring for dependents—and this finding
does reflect Canada’s primary family policy concern of
supporting parents who are raising children.
To date, there is very little empirical data about how
same-sex marriage has affected Canadian couples and
families (e.g., Alderson 2004; MacIntosh et al. 2010); more
empirical studies would provide better information for
practitioners and policy makers alike. For example,
although there is Canadian research about lesbian parenting
(e.g., Leblond de Brumath and Julien 2007; Julien et al.
2008), and about aging gay and lesbian family issues
(Brotman et al. 2003, 2007), there is no research yet
available about same-sex divorce. Interestingly, the biggest
issue on the subject of same-sex divorce seems to involve
Americans who married in Canada—over 50% of same-sex
marriages in British Columbia between 2003 and 2007
involved American couples—and who subsequently seek
to divorce in American jurisdictions that do not recognize
their marriages (Wiltshire 2009). Although it is only a
minority of gay and lesbian couples who choose to marry
in Canada, those who do seem to be motivated in part by
the desire to provide security and legitimacy for their
family members. In addition to upcoming Canada Census
data (i.e., following the 2011 census), more empirical
research, both qualitative and quantitative, is needed to
shed light on the realities of lesbian and gay family life in
Canada.
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