Several provincial courts had ruled on the issue of same-sex marriage, all holding that it was constitutional. Under pressure, the federal government submitted four questions to the Supreme Court regarding the constitutionality of a proposed civil marriage statute. The operative sections read as follows:
- Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
- Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.
- Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?
- If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
- Does the freedom of religion guaranteed by 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
- Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in 5 of the Federal Law—Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
- With respect to s. 1, yes. With respect to s. 2, no.
- The Court exercises its discretion not to answer this question.
- 91(26) did not freeze the common law definition of marriage as it stood in 1867. As marriage is within the jurisdictional purview of the federal government and the interference with the provincial head of power over and civil rights is incidental, s. 1 of the proposed Act is intra vires Parliament. With regard to proposed s. 2, solemnization of marriage is exclusively a provincial jurisdiction under s. 92(12) and thus the section is ultra vires Parliament.
- The proposed legislation is consistent with the Charter as it realizes the equality guarantee in s. 15(1). Recognition of the equality rights of one group cannot be a violation of the equality rights of another group.
- The protection of religious freedom in s. 2(a) protects religious officials from having to officiate marriages which disagree with their religious convictions.
It is within the legislative purview of Parliament to pass the Civil Marriage Act.