Civil Marriage Act
The Civil Marriage Act (SC 2005, c 33) legalized same-sex marriage across Canada, providing a statutory definition of marriage as ’the lawful union of two persons to the exclusion of all others.’ The Act followed a series of provincial court decisions that found the opposite-sex requirement for marriage unconstitutional under the Charter. By the time the Act was enacted, same-sex marriage was already legal in eight of ten provinces and one of three territories through court rulings. The Act also protected religious officials from being compelled to perform same-sex marriages contrary to their religious beliefs. Canada was the fourth country in the world to legalize same-sex marriage nationwide.
Legal area: Family law governs marriage, divorce, parenting arrangements, support obligations, and the protection of children.
Year enacted: 2005
Full text: https://laws-lois.justice.gc.ca/eng/acts/C-31.5/
Key Provisions
- Section 2: Marriage is the lawful union of two persons to the exclusion of all others
- Section 3: Persons of same sex may marry
- Section 3.1: Freedom of conscience and religion (not affected by marriage definition)
- Section 4: No person shall be deprived of the right to marry another person of the same sex
- Section 5: Religious officials not compelled to perform same-sex marriages
- Section 6: Non-application to marriage commissioners in Quebec
- Section 7: Force and effect of pre-existing same-sex marriages
Significance
The Civil Marriage Act was a landmark of Canadian social policy and Charter jurisprudence. The Act codified the result of litigation that began with same-sex couples challenging the common law definition of marriage under section 15 of the Charter. The Supreme Court’s reference opinion on the Civil Marriage Act (Reference re Same-Sex Marriage, 2004) confirmed the federal government’s jurisdiction over marriage and that the proposed definition was consistent with the Charter. The protection of religious freedom (section 3.1) balanced equality rights with religious liberty.