This case, holding that the common law does not permit persons of the same sex to marry, is the first of three cases presently making their way through the courts in BC, Ontario, and Québec. The Court refused the request to modify the law, finding that any such change would be of a magnitude in excess of the Court’s discretion, and would be tantamount to a constitutional amendment.

The petitioners (other than EGALE Canada Inc., an advocacy organization on behalf of gay, lesbian, bisexual and transgendered persons) are all individuals in same-sex relationships who wish to marry. They each applied for a marriage license from the BC Director of Vital Statistics. The Director denied each of the applications on the grounds that the common law, which establishes who has legal capacity to marry, does not recognize marriage between persons of the same sex.

The petitioners sought a declaration that there is no legal impediment to marriage between persons of the same sex. They argued in the alternative that even if there is a common law or statutory rule prohibiting same-sex marriage, that such a prohibition is contrary to the Charter of Rights and Freedoms, and therefore invalid. They argued that the recognition of heterosexual marriage under the common law should be extended to same-sex couples in order to conform with "Charter values."

The Court denied the petition. The Court held that at common law, persons of the same sex cannot marry, and held that the requested extension of the common law went beyond a merely incremental change of the sort that a court can undertake. The Court also found the common law to be fully constitutional.

The Court rejected the petitioners’ argument that there is no legal impediment in British Columbia to prevent two persons of the same sex from marrying. Every legal authority that addresses the meaning of marriage understands the concept of marriage to be ‘the voluntary union for life of one man and one woman, to the exclusion of all others’ (Hyde v. Hyde (1866), House of Lords). Heterosexuality is as central to the legal concept of marriage as is monogamy.

However, determining what the legal concept of marriage presently is, is not the end of the analysis. Because the common law is judge-made law, judges have a limited authority to make incremental changes to it, particularly to make sure that individual laws are consistent with the principles underlying the constitution and the law as a whole.

Justice Pitfield concluded that the change proposed by the petitioners would be of a magnitude that exceeds the law-making authority granted to judges by the common law:

Not only is the change sought not within the common law jurisdiction of the judiciary, neither is it within the competence of the federal Parliament. Section 91(26) of the Constitution Act, 1867, grants Parliament exclusive legislative jurisdiction over marriage. Marriage is thus an enumerated federal head of power. Any unilateral change to the definition of marriage by Parliament would expand Parliament’s jurisdiction vis-à-vis the provinces through an illicit, de facto constitutional amendment. While the provincial legislatures may not redefine marriage either, they may, if they so choose, enact laws regulating and formalizing same-sex relationships in some other manner.

The petitioners sought to challenge the common law definition of marriage under the Charter of Rights and Freedoms. But because "marriage" is a constitutional head of power, and the meaning of marriage cannot be changed by Parliament without a constitutional amendment, the petitioners cannot use the Charter of Rights to challenge the meaning of marriage under the Constitution Act, 1867. One part of the Constitution cannot be used to amend or invalidate another, and the Charter cannot be used to order Parliament to do something that it does not have the legal jurisdiction to do.

Even though he found the Charter to be inapplicable, Justice Pitfield nevertheless went on to consider the merits of the petitioners’ Charter argument. He dismissed the claims that the meaning of marriage under the common law violates freedom of expression (s. 2(b)), association (s. 2(d)), mobility rights (s. 6), liberty and security of the person (s. 7).

He agreed that if the Charter had applied in this case, the marriage law of Canada would infringe the equality provisions of the Charter (s. 15(1)). This is because ‘(t)he distinction between opposite-sex and same-sex relationships in the marriage context excludes the latter from a social and legal institution of considerable importance and tends to perpetuate the stereotypical and frequently critical community view of gays and lesbians.’

Nevertheless, when Pitfield J. considered the rationale behind the legal recognition of the heterosexual nature of marriage, he found the law to be a justified limit on s. 15(1) rights. Therefore even if the Charter had applied, the heterosexual nature of marriage in Canadian law is fully constitutional.

Under the proportionality test of s.1 of the Charter, Pitfield J considered the petitioners’ aim of furthering the acceptance of gays and lesbians in society through access to the institution of marriage, against society’s purposes in keeping marriage the way that it is.

The AG of Canada characterized the purpose of the common law of marriage as providing ‘a societal structure for the procreation of children in order to perpetuate Canadian society’. The petitioners disagreed, and argued that the law has nothing to do with procreation, and is simply the embodiment of a judgment that same-sex couples are not worthy of being married. Justice Pitfield accepted the AG’s characterization of the central purpose of marriage:

Justice Pitfield concluded that the state’s purpose for supporting marriage is valid, and outweighs the petitioners’ interest in using marriage as a vehicle for increased social acceptance:

Although sometimes cast as a simple question of "equality", the legal and philosophical arguments surrounding same-sex marriage are complex and far-ranging. Justice Pitfield avoided a simplistic approach to this case, and tackled fundamental questions: what is the purpose of marriage? Does the state have a legitimate interest in maintaining the traditional conception of marriage?

The technical legal arguments on which the judgment rested are sound, and we will not revisit them here. Instead, we will focus on another strength of the judgment – the substantive analysis of the purpose of marriage.

There was much expert evidence presented on the historical, philosophical, and theological understandings of marriage. This evidence, together with the analysis of marriage supplied by the Supreme Court of Canada in previous cases, formed the base on which the Court sought to understand marriage and its place within the Canadian legal and social order.

The beginning point of understanding the relationship between marriage and the state, is to understand that the institution of marriage existed before our political and legal system. It is not a creation of any government or law. In the western tradition, the rules governing capacity to marry and the solemnization of marriage were developed within ecclesiastical law, passing into civil law comparatively recently.

In any sound political philosophy, marriage and the family are understood as primary and the state as instrumental. That is, the state (and its government and laws) exists to promote the well-being of families and individuals, and not the other way around. The purpose of government and law is to serve the families and individuals who make up the political community; the political community has an interest in ensuring that children are eventually well equipped to take their places as adults in that community. The state has a duty to promote the stability and viability of family life, in part ensuring that the conditions exist to enable parents to raise children well. The state’s legitimate jurisdiction over marriage derives from its responsibility to provide assistance to families in this function. It defines and clarifies the parties’ obligations to one another, provides rules to establish when marriage begins and when it ends, and it provides financial and other support to help families overcome the challenges that commonly tear at them.

The next step towards a sound analysis of marriage in the Canadian legal and political order, is to ask what is the purpose of marriage? Justice Pitfield accepted the submissions and evidence of the AG Canada and the intervenors (a pro-family coalition and an inter-faith coalition, the latter made up of national groups representing the Catholic, Evangelical Protestant, Hindu, Sikh and Islamic communities as well as the Catholic Civil Rights League) that the purpose of marriage underlying or motivating the definition accepted by the common law, is primarily procreative. In so doing, he avoided the reductionist error of the Supreme Court of Canada in M. v. H. (1999) in characterising marriage as a primarily sexual relationship (see Lex View #30).

If sexual relations were the central aspect of a marital relationship, it would be difficult to understand why the state should have any interest in marriage at all. The state ordinarily has no interest in sexual relationships (outside certain exceptions involving public health, or positions of trust – teacher/student, parent/child, etc.). What creates a truly public interest in marriage is that it has, for millennia, formed the basis of the core social unit, i.e. the family, and has provided the environment in which children come into being and are brought to maturity.

This significance of the procreative aspect of marriage is frequently misunderstood. It is not to say that marriage is not also about a particularly intimate form of friendship. It is not to commit to the absurdity of saying that infertile couples and couples who choose not to have children do not have valid marriages. Neither is it to commit to the absurdity of saying that procreation does not occur outside of marriage, or that children are not raised outside of two parent families. It is not to say that there are no dysfunctional marital relationships and no functional non-marital ones. Rather, to borrow a passage that Pitfield J. quoted from La Forest J. in Egan v. Canada (1995):

Neither is this concept of marriage and the family a matter of ‘unexamined consensus’ (as suggested by L'Heureux-Dubé J. in Miron v. Trudel (1995)), or the result of the discriminatory belief that gays and lesbians are not worthy of being married (as claimed by the petitioners in this case). The heterosexual nature and procreative purpose of marriage have been the subject of reflection and analysis through countless discourses of philosophy and theology over millennia. The petitioners’ claim that the procreative purpose of marriage is a recent fabrication, is unhistorical and rests in weak, partisan scholarship.

Marriage and the family can only be promoted – thus fostering social stability, and continuity – if central features of marriage are retained. The concept of marriage necessarily requires that there be relationships that are not marriages. Marriage is, like any social category, of an exclusionary nature. If the legal category of marriage were expanded to encompass every form of human relationship based upon love or sexual desire, it would lessen the ability of society (including its culture and government) to preserve that specific form of relationship which is of unique social interest.

The interesting question is not whether marriage ought to excluded certain types of relationships – this is inevitable – but what types of relationships ought to be excluded, and on what basis? In western cultures, many types of possible human relationships have been found to be non-marital: these include not only gay and lesbian pairing, but also many heterosexual possibilities, such as polygamous and bigamous marriages, group marriages, incestuous marriages, and marriage within the prohibited degrees of consanguinity.

Why is it that the petitioners want access to marriage? On their submission, marriage is a necessary tool to secure social acceptance and recognition of gay and lesbian relationships. The Court held that this is not a valid reason to make marriage into something that it is not.

The exclusion of same-sex couples from marriage is not, as Pitfield J emphasized, the result of contempt for lesbians and gay men. It is not, as was argued in court, the result of "homophobia" and "heterosexism". Rather, it is a policy supported by sound reason, taking into account the real differences between same-sex and married couples. As Pitfield J concluded, ‘the one factor in respect of which there cannot be similarity is the biological reality that opposite-sex couples may, as between themselves, propagate the species and thereby perpetuate humankind. Same-sex couples cannot.’ Where there is no reason to draw a distinction on the basis of marriage (such as now is believed to be the case in providing for a right to spousal support for those in quasi-conjugal relationships), the law does not draw a distinction.

Even though they were provided with bona fide reasons justifying the law of marriage – reasons rooted in the demands of justice for those who have an interest in seeing the continuity and stability of society – the petitioners nevertheless appealed to the language of "homophobia" and "heterosexism", suggesting that the standard religious and moral objection to homosexual or lesbian conduct is equivalent to racism. This is a dangerous proposition. It ascribes the most discreditable of motives to those who dissent from the petitioners’ position, and insists that any rejection of same-sex marriage must be motivated by animosity towards gays and lesbians as persons. Such a posture fails to respect the position of the major religions, which maintains that one can disagree with someone’s conduct without rejecting the person (ie the "act/person distinction"). Such inaccurate characterization of religious argument poses threatens the legitimate exercise of religious belief and conduct in Canadian society; for recent examples see Lex View #38 Brillinger v. Brockie (2000), and #46 Trinity Western University v. BCCT (2001)).

One criticism that we make is of Pitfield J’s finding that the definition of marriage adopted by the common law violates the petitioners’ equality rights (although that violation was held to be justified under s. 1). In order to make out a violation of s. 15(1), it is necessary for a claimant to establish that the impugned law negatively impacts on that claimant’s dignity. But given that Pitfield J. concluded that the exclusion of same-sex couples from marriage is rationally determined and that ‘the issue before the court has nothing to do with the worth of any individual’, it is difficult to see how the common law could be held to violate anyone’s dignity, and therefore infringe s. 15(1). If discrimination, as the Supreme Court of Canada has said in Law v. Canada (see Lex View #28), has to do with how an individual, dispassionate and fully apprised of the circumstances, legitimately feels when confronted with a particular law, it is hard to see how a rational and fully justified law which takes into account every relevant factor can harm a complainant’s dignity.

This case is the first of three cases that are making their way through the trial courts in BC, Ontario, and Québec. Decisions have not yet been rendered in the Ontario and Québec actions. In the next few years, each case will doubtless proceed to the provincial courts of appeal, and then on to the Supreme Court of Canada.

David Brown, Barrister & Solicitor, Partner, Stikeman, Elliott, Toronto. Sessional Lecturer, Faculty of Law, Queen’s Univ. Kingston, ON.

Frank A.V. Falzon, Barrister & Solicitor, Victoria, B.C.

Gerry Ferguson, Professor of Law, former Associate Dean, Faculty of Law, University of Victoria, Victoria, B.C.

Rosemary King, Assistant Professor of Law, Faculty of Law, Queen’s University, Kingston, ON.

Peter Mercer, Vice-President (Administration) and General Counsel, Professor of Law and former Dean, Faculty of Law, University of Western Ontario, London, ON.

Hugh MacKinnon, Barrister & Solicitor, Partner, Bennett Jones, Toronto, ON.

Patti Towler, Barrister & Solicitor, Vancouver, B.C.

Rosemarie Wertschek, Barrister & Solicitor, Partner, McCarthy Tetrault, Vancouver, B.C.

Johane Tremblay, Senior Legal Counsel, Canada Labour Relations Board, Ottawa, ON.

Ken Whyte, Editor, National Post, Toronto, ON.

Copyright © 2002 Iain Benson and Brad Miller

Lex View is an on-going review of judgments of Canadian appellate courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.

Any copying, printing, re-transmission, distribution, or other use of any portion of Lex View of one paragraph or more, must include the following credit line in full at the conclusion of the portion of Lex View that is used:

Copyright © 2002 Iain Benson and Brad Miller. Reprinted with permission. "Lex View" is a publication of the Centre for Cultural Renewal

PLEASE NOTE: The opinions expressed in Lex View are those of the writer(s) and do not necessarily represent the position of the Board or Advisory Councils of the Centre for Cultural Renewal or the Editorial Board of Lex View.