## Facts

- The federal executive referred constitutional questions to the Supreme Court of Canada concerning a proposed federal statute defining civil marriage as “the lawful union of two persons to the exclusion of all others.”
- The proposed statute also stated that nothing in the Act affects the freedom of religious officials to refuse to perform marriages contrary to their beliefs.
- The reference followed provincial appellate decisions concluding that restricting civil marriage to opposite-sex couples violated constitutional equality guarantees.
- The reference asked about: (1) federal legislative jurisdiction to enact the proposal; (2) Charter consistency of the inclusive definition; (3) whether freedom of religion protects religious officials from compulsion to perform same-sex marriages; and (4) whether the historic opposite-sex common-law requirement is Charter-consistent.

## Issues

1. Whether the proposed federal definition of civil marriage (including same-sex couples) falls within Parliament’s exclusive legislative authority over “Marriage and Divorce.”
2. Whether the proposed civil-marriage definition is consistent with the Canadian Charter of Rights and Freedoms, including equality and freedom of religion protections.
3. Whether Charter freedom of religion protects religious officials from being compelled by the state to perform same-sex marriages contrary to their beliefs.
4. Whether the opposite-sex requirement for civil marriage in existing law is consistent with the Charter.

## Decision

- The Court answered that the proposed legislation was within Parliament’s exclusive authority over “Marriage and Divorce,” because its dominant character was defining legal capacity to marry for civil purposes rather than regulating provincial “solemnization of marriage.”
- The Court held the proposed definition of civil marriage as a union of “two persons” was consistent with the Charter, including equality guarantees.
- The Court held Charter freedom of religion protects religious officials from state compulsion to perform same-sex marriages contrary to their religious beliefs.
- The Court declined, as a matter of reference discretion, to answer whether the historic opposite-sex requirement in existing law was Charter-consistent.

## Legal Principles

- Questions may be justiciable in a reference even if politically charged, so long as they require legal and constitutional interpretation.
- Under Canadian federalism, Parliament may legislate on the substantive definition and legal capacity for civil marriage, while provinces control solemnization (forms and procedures).
- Extending civil marriage to same-sex couples is constitutionally permissible and consistent with equality guarantees where exclusion has been found discriminatory.
- Charter freedom of religion protects religious officials and communities from being compelled by the state to act contrary to religious beliefs in the performance of marriage rites.
- A court may decline to answer a reference question where answering would be unnecessary to resolve the government’s concrete legislative proposal and could unsettle legal certainty.

## Conclusion

The Court confirmed federal authority to define civil marriage to include same-sex couples, found the inclusive definition Charter-consistent, and recognized constitutional protection for religious officials against compulsion to solemnize marriages contrary to their beliefs, while declining to rule on the constitutionality of the historic opposite-sex requirement.


Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698 (Can. 2004)