Sweeping Canadian Marriage Win

Highest Quebec appeals court finds national precedent for same-sex couple already exists

Quebec’s highest appellate court on March 19 affirmed a lower court ruling by Justice Louise Lemelin holding that same-sex partners are entitled to marry under Canadian law, dismissing an appeal by a Catholic organization. The court found that the combination of prior appellate decisions on same-sex marriage from Ontario and British Columbia and the federal government’s decision not to appeal those decisions has created a binding national precedent.

The government had abandoned its appeal of the September 2002 lower court ruling, and advised the court this January that there was no reason to delay Lemelin’s judgment from going into effect.

The immediate effect of the ruling by the Court of Appeal is that same-sex couples may now obtain marriage licenses in the province of Quebec. The plaintiffs in the case, Michael Hendricks and Rene Leboeuf, promptly obtained a marriage license on Friday afternoon, and they plan to hold their ceremony on April 10, after observing the required 20-day minimum waiting period. Although the Quebec court’s ruling is only a binding precedent in that province, the theory upon which the court ruled suggests that courts in other provinces that have not yet ruled on same-sex marriage should reach the same result.

The unanimous ruling in Catholic League for Human Rights v. Hendricks culminates an extraordinary series of Canadian appellate decisions about same-sex marriage. Last spring, the courts of appeals in Ontario and British Columbia both announced their conclusions that the continued denial of marriage licenses to same-sex couples violates Article 15 of the Canadian Charter of Rights and Freedoms, which has been interpreted by the Supreme Court of Canada to ban sexual orientation discrimination by the government. In both provinces, the courts ruled that marriage licenses should be made available to same-sex couples immediately, and thousands of couples––many from outside Canada, including from the United States––have since married in those two provinces.

In Canada, the definition of marriage, dating from the time of autonomous government within the British Commonwealth in 1867, has been a matter of common law (or judicial pronouncements) not statute. The common law definition from 1867 was that a marriage consisted of the union of one man and one woman to the exclusion of all others. Having found this definition to violate the Charter, the Ontario and British Columbia courts decreed that henceforth the federal definition of marriage is changed to eliminate the references to gender.

The federal government, under the leadership of Prime Minister Jean Chretien, decided not to appeal this ruling to the Supreme Court, but rather to address the question of passing legislation defining marriage for all of Canada that would be consistent with these rulings. The federal government’s decision reflected a realistic reading of past Supreme Court decisions, which previously led the federal government to adopt a national domestic partnership law that conferred on same-sex partners most of the federal rights enjoyed by married couples in Canada.

After drafting a proposed marriage law, the government petitioned the Supreme Court for an advisory ruling as to whether the federal Parliament had exclusive authority to enact a national marriage law and, if so, whether the proposed law, which would both open up marriage to same-sex partners and exempt religious organizations from performing any marriages contrary to their theological tenets, would comply with the Charter and adequately respect religious liberty. The Supreme Court accepted the government’s petition and seemed ready to consider arguments this spring.

However, after Chretien’s retirement in December and his replacement by Paul Martin, who appeared less committed to same-sex marriage, the government decided to add the question of whether existing marriage law, which limited the institution to opposite-sex couples, is consistent with the Charter. The expanded petition, in effect a back door appeal, caused the court to delay its consideration until next fall, thus guaranteeing that a decision would not be issued before national elections scheduled for this spring. Some speculated that the government’s additional inquiry to the court was strategically planned for political reasons.

The final event sealing the fate of the Quebec case occurred this January, when the attorney general of Canada informed the Court of Appeal that there was no further reason to delay the lower court decision from going into effect, signaling that the federal government has, for all practical purposes, accepted the proposition that same-sex partners are entitled to marry. When Lemelin issued her ruling in 2002, she suspended its effect until July 2004 to give the Parliament a chance to pass appropriate legislation. The date was picked to coincide with a similar date set by the lower court in Ontario in its same-sex marriage ruling, but the Ontario Court of Appeal later decided that such a delay was not warranted.

The Court of Appeal found, first, that the Catholic League, which had been given the status of an “intervenor” in the trial court, could not appeal the ruling in a case involving the invalidation of a federal statute where the attorney general of Canada had decided not to appeal. Indeed, the court noted that the Catholic League has been allowed to intervene and participate in the proceedings before the Supreme Court of Canada concerning the questions referred by the government, so it will have an opportunity to voice its opposition in that tribunal.

But, more significantly, the Quebec court found that when the Ontario Court of Appeal issued its ruling last year, declaring the existing common law definition of marriage unconstitutional, and the government decided not to appeal that ruling, it became a national precedent, and thus binding on Quebec as well as any other province, at least until such time as a higher court might reverse it. Consequently, the appeal was for all practical purposes moot, as the substantive issue of Canadian constitutional law has been decided for now.

Thus, it is possible for same-sex partners to obtain marriage licenses in the French-Canadian province, a popular gay vacation destination. However, the 20-day waiting period between issuance of a license and performance of a ceremony may deter a stream of same-sex couples from the U.S. going to Montreal or Quebec City for their weddings rather than to Toronto or Vancouver, where ceremonies can be conducted as soon as a license is obtained.

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