Canadian High Court OKs Marriage Definition Change

December 9, 2004 ( - The Canadian Supreme Court, in a long-expected move, has ruled that the Parliament can alter the definition of marriage under the Constitution to include same-sex couples.

>The non-binding, advisory ruling upheld religious rights under the Canada’s Charter of Rights and Freedoms, stating that no religious group opposed to same-sex marriage would be forced to perform such services.

>The court refused to rule on whether the country’s Constitution required such a change, instead only stating that the Parliament could vote to change the definition. A vote, which is expected to pass with the support of the leftist New Democratic Party, regionalist Bloc Quebecois, and the ruling Liberal Party’s support. Even some Conservative Party members are expected to vote for the measure.

>The ruling was requested by the ruling Liberal Party following after Provincial courts began ruling that barring gays from the institution of marriage was unconstitutional. While Ontario was the first province to have such a ruling, multiple provinces and territories have followed suit since June of last year.

Former Liberal leader Jean Chrétien had proposed that the definition of marriage be altered to a” lawful union of two persons to the exclusion of all others” rather than the “lawful union of one man and one woman,” and sought an advisory opinion from the country’s highest court. In the request, Chrétien asked the court to rule on three questions: whether the government could redefine marriage, whether it supported the Charter of Rights and whether church groups had to perform the ceremonies. When Chrétien retired earlier this year, his successor, former shipping-tycoon Paul Martin, Jr., proposed another question: whether limiting marriage to a man and a woman was   unconstitutional.

The court, asserting that the government had effectively accepted the proposition of gay marriage by refusing to appeal the lower court decisions, pointed to the changing nature of the definition to support its advisory ruling. “Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples,” the opinion stated. “The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.”

The court also rejected the claim that the definition of marriage was rooted in history and should thus stay unaltered.

“Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared,” the court asserted, adding that “the appeal to history therefore in this particular matter is not conclusive.”

Federal Justice Minister Irwin Cotler said that he would propose the bill that would alter the definition as early as this month in what will be a free vote for the ruling party, according to the Canadian Broadcasting Corporation.

The advisory opinion is available here .