Courting Leviathan: Limited Government and Social Freedom in Reference Re Same-Sex Marriage

Abstract

ALBERT A LAW REVIEW (2005) 42:4 4. Is the opposite sex requirement for marriage for civil purposes, as i:stablishc:d by the common law and set out for Quebec in section 5 of the Federal I.aw-Civil l.ai1• llarmont:ation Act. No. I, consistent with the Canadian Charter of Rights and Freedoms? lfnot, in what panicular or paniculars and to what extent?~ The proposed legislation-which then Justice Minister Martin Cauchon released on 17 July 2003-reads as follows: WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a ri:sponsibility 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 the values of tolerance, respect nnd 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 evetyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse lo perform marriages that arc not in accordance with their religious belief's; NOW, Tl IE RE FORE, lier Majesty, by and with the advice and corm:nt ofthe Senate and !louse of Commons of Canada, enacts as follows: I. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that arc not in accordance with their religious beliefs. 6 This proposal was drafted, the questions framed and the entire bundle forwarded to the Court, as the federal executive's response, in lieu of appeal, to the Ontario Court of Appeal's ukase in Halpern v. Canada (A.G.),7 which directed that thereafter and immediately 8 marriage at law must be "refonnulate[d] ... as 'the voluntary union for life of two persons to the exclusion of all others. "' 9

Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings

“…One law professor exclaimed that the Court had asserted its "ownership of " marriage "by mere fi at"; the social interest in the practices and institution of marriage was subordinated to this new jurisdiction. 19 Th is apprehension diminished in the latter half of the decade. Commentators focused on the novel televised hearings for Supreme Court nominees, or their absence, in the case of Justice Th omas Cromwell.…”