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Lawyers' Letter to Parliamentarians on Same-Sex Marriage Bill C-38

Dear Members of Parliament and Senators:

We, the undersigned legal counsel, maintain active practices or academic interest in litigation, human rights, religious, charity or constitutional law. We have reviewed two constitutional opinions provided by the law firm of Lang Michener LLP, on the subject of Bill C-38, the federal government's proposed legislation to legalize same-sex marriage. What follows is a summary of the firm's main conclusions, followed by our own observations.

QUESTION Does the recent Same-Sex Marriage Reference opinion of the Supreme Court of Canada ("Reference") require Parliament to amend the common-law definition of marriage?

ANSWER No. The answers provided in a federal reference are an advisory opinion only to the Governor in Council. In addition, in the Reference, the Supreme Court did not address the question of whether an opposite-sex definition of marriage would fail to meet Charter requirements.

QUESTION Should it be the case that the purpose of the common-law definition of marriage arose out of "Christendom," (as discussed in paragraphs 21 and 22 of the Reference), is it consistent with constitutional precedent for Parliament to nevertheless define marriage as the union of one man and one woman for life to the exclusion of all others, so long as the purpose is secular and consistent with the Charter?

ANSWER Yes. Legislation pertaining to the legal capacity for civil marriage falls within the subject matter of section 91(26) of the Constitution Act, 1867, which pertains to the exclusive legislative competence of Parliament.

QUESTION Would Parliament be acting consistent with jurisprudence if it justified a statutory definition of marriage to one man and one woman on the basis that it would serve the best interests of children and to create a public institution that makes it more likely that a child will be raised by the child's own mother and father?

ANSWER Yes. The Supreme Court has previously recognized the importance of protecting the best interests of children in a variety of contexts.

QUESTION Should Bill C-38 be enacted as proposed, does Parliament have the constitutional jurisdiction to protect by statute the freedom of religious groups or officials to refuse to perform marriages that are not in accordance with the group's religious beliefs?

ANSWER No. Provincial governments, pursuant to section 92(12) of the Constitution Act, 1867, have exclusive jurisdiction with respect to the solemnization of marriage.

QUESTION If Bill C-38 is enacted, could religious groups or officials who refuse to solemnize a marriage become the subject of actions by others?

ANSWER Yes. A putative same-sex spouse who is refused a marriage licence or a place to hold a wedding would have a variety of options to assert his/her rights.

QUESTION Does Parliament have the power through Bill C-38 or otherwise to protect religious groups or officials from the actions referred to above?

ANSWER No. The Parliament of Canada cannot protect religious groups or officials from the actions referred to above because the solemnization of marriage lies within the exclusive competence of the provinces.

In the opinion of the undersigned, Lang Michener has correctly stated the law in Canada today. There is little doubt that, if passed, Bill C-38 will be used by provincial governments and others to override the rights of conscience and religion of ordinary Canadians. Public officials will in all likelihood lose their employment simply because of their conscientious convictions. It is our view that your constituents, including religious groups and the members of religious groups, will face expensive and ruinous lawsuits if Bill C-38 becomes law.

We therefore urge each Member of the House of Commons and the Senate to carefully consider and vote against Bill C-38. The Supreme Court of Canada has clearly left this option open to Parliament.

Sincerely,

Gerald D. Chipeur, on behalf of: Peter J. Anderson, Owen B. Griffiths, Dallas K. Miller Q.C., John M. Banfill, Joseph P. Hamon, Benton Mischuk, Ivan Bernardo, David W. Hooley Q.C., Valerie A. Hazlett Parker, Norm Bosse, Paul Jeffrey, Nancy Pearson, Patrick J. Boyle, James H. Johnson, Ruth A.M. Ross, Janet Epp Buckingham, Brian Kempster, David Ryan, Barry Bussey, Walter W. Kubitz, Jeannette Savoie, Jonathan Denis, Allen D. Leschert, Tom Schuck, Dale Wm. Fedorchuk, Ronald McDonald, Cindy Silver, Walter Fox, Anne E. McTavish, Frank de Walle, Mark R. Frederick, Michael Menear.

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