Bill C-38 (Historical)

Civil Marriage Act

An Act respecting certain aspects of legal capacity for marriage for civil purposes

This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.

Civil Marriage Act

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I rise today to speak in support of Bill C-38, the civil marriage act, introduced by the government.

Before addressing the subject, I just want to say that much has been made of the fact that the government is not allowing a free vote on this and that if the vote were free, the bill would not pass. This is pure nonsense. The vote will be free on this side of the House. The hon. members can vote as they see fit.

However, the government has an opinion and this is a government bill. Accordingly, cabinet will vote in favour of the bill, as will the parliamentary secretary to the Minister of Justice, since the bill was introduced by the Minister of Justice.

There is nothing magical or coercive in this. The government will urge all hon. members to consider the merits of a vote confirming what, in the opinion of the Supreme Court of Canada, is a fundamental right vested in the charter.

For my part, as a mere parliamentary secretary required to vote in favour of the bill—although I know I am not the only parliamentary secretary to do so—I would have voted in favour of it regardless. Let me explain why.

We certainly cannot deny that for many this is a difficult decision for religious or personal reasons. We are talking about one of the oldest and most central institutions in our society. The topic is highly charged emotionally.

I would join my colleagues, however, in encouraging members of Parliament and indeed all Canadians to conduct the debate as it has been to date, in a calm and respectful way. The views of all members must be heard. The test of our values and our respect for tolerance and diversity will be to continue to listen with an open mind to the comments and concerns not only of those we agree with, but even more importantly, of those we do not agree with.

What strikes me as I have listened to the comments from colleagues and other members of the House, constituents, religious groups, family and friends is that the arguments being made in the House today are not unique. Let me take a brief moment to read a representative comment, “Assuming that there must be some restrictions as to marriage, we may assume also that the laws imposing such restrictions ought not to be changed without some good and clearly ascertained case”.

The speaker then went on to say that there is “no sufficient cause for the change now proposed” and that it is not unreasonable to alter the traditional law on marriage as “it is contrary to sound principles to legislate for the very few when such legislation must injuriously affect the welfare and happiness of a much larger number”. He expressed concern that the changes in legislation would result in changes to religious practices and concluded that the legislation was too important to be passed quickly without “due time for ascertaining the sentiments of the people generally”.

Debate in the House of Commons would be insufficient as his parishioners in Nova Scotia had difficulty following the goings on of the Parliament in distant Ottawa. The time was needed for the populous to get used to the idea. Parliament was rushing the issue.

Many of the arguments made today against extending civil marriage to same sex couples are eerily similar to those arguments. Those comments were drawn from well over 100 years ago, in 1890 when Canada's marriage laws were being amended to allow a widow or widower to marry the sibling of their deceased spouse. Those comments were made by the Anglican Bishop of Nova Scotia because of course this marriage was then prohibited by the church.

As would be expected, the bishop expressed concern that this extension of marriage was contrary to the Christian concept of marriage and cited numerous quotations from the Bible. He even raised the spectre of polygamy. A man who was prepared to marry his deceased wife's sister, he said, might next want to marry all of her sisters at the same time, and what would be left to stop this if we allowed him to marry more than one sibling one after the other?

In the year 2005, well over 100 years later, it is striking to me that this House has also heard every one of these arguments anew. I am fascinated by how easy it is to lose perspective as we sometimes lose history.

I hope we come to view these arguments with the same perspective now as the House finally did in 1890 when these changes to Canada's marriage laws were passed.

Nor was 1890 the last and only time that our marriage laws were amended, or these arguments were raised. As recently as 1990 the federal Marriage (Prohibited Degrees) Act was amended to extend access to civil marriage to those who were related by blood in second degree relationships, that is, cousins, and uncles or aunts and their nieces and nephews.

In 1990 many experts in genetics were called before a Senate committee to explain that there was no scientific basis for the perception that these relationships resulted in an increased probability of physical or mental impairment. So consistent was the evidence that the amendment passed with very little controversy.

I suspect that many of my fellow members of Parliament did not even know that the law had been changed in this regard. It is another example of the fact that civil marriage is not immutable and has been extended over time to groups previously excluded.

Indeed, Upper Canada passed its first marriage act as early as 1793. The legislation was based on the British Lord Hardwicke's Act and restricted the ability to perform marriages to the Church of England or Anglican ministers. In 1798 after considerable pressure, the ability to perform marriages was extended to ordained Presbyterian, Lutheran and Calvinist ministers, but only where they were certified, which was an extra procedure that was not necessary for the Church of England ministers.

Methodists were specifically left out until 1829 when the legislation was extended to Congregationalist, Baptist, Independent, Mennonite, Tunker, Moravian and Methodist ministers. It was not until 1857 that ministers of every religious denomination, including Jewish rabbis, were authorized to perform marriages. Other provinces and territories followed similar paths.

Civil marriage in Canada was created by legislation fairly early in Canada's west, in British Columbia in 1888, in the Northwest Territories in 1898, in Manitoba in 1932, perhaps more because of the unavailability of religious ministers. Ontario waited until 1950 to introduce civil marriage. Quebec, Nova Scotia, New Brunswick, P.E.I. and Newfoundland and Labrador introduced it only in the 1960s. In each case there was controversy and concern.

Although Canada never had any laws preventing interracial marriage as there were in the United States, Canadian authors cite instances where authorities resorted to deportation and charges of seduction, as well as instances where community members resorted to torture and even murder to prevent such unnatural unions. Happily, this aspect of marriage has changed.

Similar arguments were put forward with regard to divorce laws. One member of Parliament in 1894 said:

Every Catholic is opposed... and yet the Protestant majority of this House want to impose the law upon us in this matter.... Who may tell what the future keeps in store for us?

Those words are from a distinguished member of the House, the hon. Hormidas Jeannotte, uttered in 1894 in the context of a debate on the bill of divorce for one James St.-George Dillon.

Prior to the passage of Canada's first Divorce Act in 1968, individual bills were needed to grant divorces. Certainly the concerns uttered then are again similar to those that we have heard more recently.

Senator Bellerose said in a debate in the Senate on the same bill that if divorce were granted it would “encourage the whole population of Montreal and of the province of Quebec...to separate from their wives in order to achieve the same end”. He insisted that it would be a travesty if Parliament passed the bill because “it was understood at the time of Confederation that divorce would not be granted to Catholics”.

Indeed these arguments were raised in almost every recorded debate on any change to Canadian laws on marriage or divorce and yet, as we can all plainly see, religious practices have changed very little. Some religious groups still do not recognize divorce, and the change in the civil law does not force them to do so.

Some religious groups still do not allow marriage between first cousins, and the change in the civil law does not force them to do so. In the same way, the passage of Bill C-38 would not force religious groups who do not recognize marriage between same sex partners to do so.

I fully understand that those opposed to this bill are not radicals. They are not bigots. They are not homophobic. This is a big change for our society within one lifespan. For me, and as others have said before in the House, when I grew up and first learned the law, homosexual behaviour was still prohibited by the criminal law. It is not long ago in our lifetimes, as the Prime Minister mentioned in his speech, that gay and lesbian Canadians were not welcome in the Canadian Forces, were not protected by the law from being dismissed from a job or refused service in a restaurant simply because they were gay. It is difficult for some in our society to accept that what was very recently hidden and invisible is now being accepted as a minority group deserving of protection and respect.

Let me just probe that a little. Why would this not be a group of people deserving of protection from discrimination? As the Minister of Justice has said, it is easy to believe in equality when we agree with a particular minority, but history is full of instances that demonstrate just how much a test of our beliefs and our values it is when we are talking about a minority that we do not agree with.

Let us remember that gay and lesbian individuals have been subjected to a lengthy history of discrimination and indeed persecution in many societies. It is all too recent that they were targets of Nazi Germany, where they were forced to wear pink triangles and many were housed in concentration camps. It is all too recent that the fear of outing or coming out meant the end of a career and even family life for many who were forced to live invisibly in our own Canada.

I was concerned to hear the opposition make reference to the fact that this is not about human rights, that there are no instances of real discrimination here with regard to this group. With respect, that is a denial of history and a denial of fact. I have heard from parents, as I am sure have a number of members, sad and terrible stories about children who have committed suicide because they were afraid of telling their parents about their sexual orientation, of young people cast off by their families, of schoolyard taunting and harassment, of violence directed against people only because they were suspected of being gay.

No purpose is served by comparing the history of disadvantage, of discrimination and of exclusion of different minority groups. I will be supporting this bill because I believe in the eradication of discrimination for all minority groups, and in the equal importance of the protection of the freedom of religion. The government bill acts responsibly and carefully to balance full respect for equality and the freedom of religion, basic Canadian values of such importance that they are entrenched as part of our Constitution, forever limiting the power of this House.

The opposition says that this bill should not pass because half of Canadians are not in support. I realize that Canadians are evenly divided on this issue, but what about those who are in favour? Should those opposed ask the House to turn back the hands of time, to ignore the fact that the law has already changed in eight provinces and territories because the courts have made binding decisions that limiting civil marriage to opposite sex couples is a violation of our Constitution?

Our own history shows us that those opposed will be fully protected from these changes. They will not touch their lives unless they choose to have it happen. Religious groups will retain the full ability to make their own decisions about whether to recognize these legal changes in the same way they already have with earlier changes to the civil law on marriage and divorce.

However the House has a duty, not only to those opposed but to those in favour, not only to those religious groups who do not wish to perform same sex marriages but also to those who do.

In the discussions surrounding the 1968 Divorce Act, religious groups took sides. Some urged the government not to pass the civil divorce law for Canada fearing the impact on religious practice and others who urged the government to go further and include a ground for divorce based solely on marital breakdown.

Now as then, it falls to the civil authority to legislate in a way that allows all religious groups to continue with their beliefs. The way to do that here is to pass this law, allowing religions to decide this issue for themselves and for their communities.

I respectfully submit that the bill represents the great Canadian compromise and I would urge all members to support the bill.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, the authors of our Constitution, and indeed of our charter, fully contemplated the infringement of the right of gays and lesbians to be married, but it would appear that even if Bill C-38 is passed the infringement of their rights will continue because of the competing interests of the equality provisions and the rights of religious freedoms.

In her speech, the member raised an alternative. This question of religious rights and whether we can fully protect rights is also another issue to be discussed. Would the member agree that what is necessary now is for Parliament to have the time to more fully assess the broader implications of the various points that are being brought out? Also, what would be the position of the member or her party if in fact religious rights and freedoms were struck down by the court in favour of the equality rights of gays and lesbians?

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Mr. Speaker, this is a very important public policy issue and I am privileged to have the chance to enter the debate today. I am honoured to be the second speaker for the Conservative Party. I thank my fellow caucus members for their support. I also congratulate the Leader of the Opposition on his forthright speech on Wednesday.

I am proud to be a member of a political party that respects rights and tradition and has taken an honest, moderate, compromise position in such an important public policy debate.

I have had the opportunity to listen not only to the initial debate on Bill C-38 but, most important, to listen to my constituents in West Edmonton, Spruce Grove, Stony Plain and Parkland county.

While opinions have varied, I continue to be impressed by the honesty, candour and care with which Canadians are approaching this debate. Canadians have been thoughtful on this issue and most have come to believe that a compromise position would be the best position that the Government of Canada could take. It is, in essence, the Canadian way.

The issue of same sex marriage is not about denying rights. It is not about jeopardizing the Charter of Rights and Freedoms, as the Prime Minister would like us to believe. It is a complex public policy issue and one which has an impact on every Canadian.

I would like to begin my comments on a personal note and say that when I think of the people in my life who I love, some of whom happen to be gay and lesbian, I know clearly, both in my heart and in my mind, that I would never support a public policy position that violated their rights and in any way violated the Charter of Rights and Freedoms.

The Supreme Court of Canada has asked us to consider a range of ideas. As legislators, it is our responsibility to consider and represent the views of Canadians in this House.

The debate has been framed in a variety of ways and each adds to the complexity of our deliberations. Today I hope to address this debate in a manner that discusses the various ways Canadians have approached Bill C-38.

The debate has been framed, in terms of rights, within the framework of the Charter of Rights and Freedoms; in terms of marriage and what it means legally, as well as within the context of historical tradition and as a social institution; and in terms of religion and the interplay between church and state, not just how religion affects politics but also in terms of how politics affects the activity of churches, mosques, synagogues and temples.

The debate has also been framed as one of competing interests, the, at times, different views of younger Canadians versus older Canadians, the supposedly different views of rural versus urban Canadians, and the alleged different views of people who come from different provinces. However the reality is that this debate is important to all of us, all generations, both sexes, across the country.

In my mind the debate is primarily about rights and recognition, and about how to best recognize the rights of homosexual couples within our society while at the same time upholding and respecting institutions that have great social importance to Canada, such as the traditional definition of marriage. In short, it is about responding and respecting the competing interests in this debate in a reasonable, compassionate and moderate way.

In my comments today I would like to touch upon a few subjects. First, I would like to review, not just the Supreme Court reference, but all the court cases that have brought us to where we are on the same sex marriage issue.

Second, I will focus on the main point of my address, which is that in any debate it is Parliament's job to find a compromise and consensus that defends rights and, specifically in this debate, offers recognition to homosexual couples and takes into account the views of Canadians.

Third, I would like to discuss the legislation that other countries around the world have brought forward after engaging in this very exercise that we are about to undertake. In addition, I will refer to the legislation Alberta brought forward two years ago to extend rights and privileges to same sex couples.

Finally, I would like to specifically focus on the very ways in which Canadians have discussed same sex marriage as a rights issue.

Marriage cases ruling in favour of same sex marriage began in 2002. In 2002, the Ontario Superior Court of Justice ruled that defining marriage as the union of one man and one woman represented a charter infringement. La Cour supérieure du Québec also ruled that the characterization of marriage as a heterosexual institution represented a violation of charter equality rights.

In 2003, the British Columbia Court of Appeal reversed a lower court judgment that upheld the common law bar to same sex marriage.

On September 16, 2003, an opposition motion expressing Parliament's support for the traditional definition of marriage was defeated in the House of Commons by a vote of 137 to 132. It was only four years earlier, in June 1999, however, that the exact same motion passed, with large support from many Liberals for the traditional definition of marriage.

After several provincial courts had ruled that the traditional definition of marriage was unconstitutional, the Liberal government prepared draft legislation that would permit same sex marriages, but instead of allowing the House of Commons to vote on the legislation, the Liberals referred it to the Supreme Court and asked the following questions.

Question 1: 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?

Question 2: 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?

Question 3: Does the freedom of religion guaranteed by paragraph 2(a) of the 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?

In January 2004 the government referred an additional question to the Supreme Court. Question 4 asked the following: Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms?

The fourth question was an important question. The Prime Minister had hoped that the Supreme Court would return with the imperative that Parliament must pass a law sanctioning marriage for homosexual couples. However, the Supreme Court did not do that and mandated Parliament to examine, debate and potentially legislate on this issue.

In its decision released on December 9, 2004, the Supreme Court said that the federal government has the jurisdiction to redefine marriage to include same sex couples.

It also said that churches are protected under the Charter of Rights in maintaining the traditional definition of marriage, but that legislation that would specifically protect religious organizations is beyond the constitutional power of the federal government.

What this means is that the federal government determines the definition of marriage but the provinces determine how a couple can marry.

The court did not answer the question of whether the traditional definition of marriage in the common law violates the Charter of Rights. Instead of declaring the traditional definition of marriage unconstitutional, the court has made it clear that it is Parliament that must define the word marriage.

This is where we are today. We have received direction from the Supreme Court of Canada that if Parliament wants to change the definition of marriage it would be within our purview to do so. We are free to define it as a union between a man and a woman or as between any two persons. Either definition has been deemed constitutional by the Supreme Court.

However, the courts did not force the vote or the debate that is before us, because it did not compel Parliament to change the definition of marriage. It simply stated that if Parliament wanted to, it could. This is a political decision that the Liberal government has taken on its very own.

While the Liberals have attempted to shroud their politics by misquoting and misusing the language of rights, I, along with the Leader of the Opposition, will seek the moderate compromise that Canadians are asking for.

We may ask why a compromise is so important. Many members have suggested that deciding upon whether or not to change the definition of marriage is difficult; it involves issue of personal conscience, religion and the views of our constituents as well as perceptions of the traditions and institutions of our society.

Because of the difficulty of this issue, I am proud to be a member of a party that has allowed a free vote on this issue. It is an issue of personal conscience and one of accountability to my constituents, and it is important that members are granted the ability to vote in as free a manner as possible without the threat of recrimination by party leaders.

It is wise, and it is also decent, that this party has allowed a free vote. Nobody in this party finds themselves in an uncomfortable position due to this legislation. Members are accountable not to their party but to their own consciences and to their constituents. It is a position that I wish all members of the House could share.

Importantly, the majority of people who oppose this legislation favour the insurance and the protection of equal rights for homosexual couples and they favour formal state recognition of committed homosexual relationships.

So at some point we have to ask ourselves why the government is not following the lead of most Canadians and searching for a middle ground that will protect the rights of all Canadians equally, recognize homosexual unions and respect tradition at the same point. The government, after all, likes to talk about Canada's ability to broker resolutions. It likes to talk about Canadians as being the sort of people who search for compromise and search for the middle position.

Canadians have done that. The Leader of the Opposition has done that. The government, on the other hand, has labelled these Canadians intolerant and bigoted. This language is unhelpful, and the government is fighting the national consensus on this issue.

The government has refused to look beyond its own vision on this issue. It has refused to seek the middle ground, and in doing so, it has refused to take seriously the considerations and views of Canadians.

The Leader of the Opposition is the only leader in the House who has discussed the matter with Canadians and has searched for a compromise in order to give all Canadians a voice.

In December, the Leader of the Opposition announced three proposals for effectively considering the marriage question. These are as follows. The first proposal would retain the traditional definition of marriage. The second proposal would ensure that same sex couples are afforded equal spousal benefits. The third proposal would include substantive provisions in the legislation to protect not only religious organizations but also to protect public officials who have objections due to reasons of religion or conscience.

With regard to the first proposal, I am proud to be voting the wishes of my constituents, one of which is to support and maintain the traditional definition of marriage. I am also proud to be able to vote in favour of providing equal rights to gay and lesbian couples, something my constituents have also been clear in their support for.

My constituents reflect the majority of Canadians who believe in a balanced approach: legislation which accords equal benefits and status to same sex couples in a recognized union, with an understanding that to do this we do not need to change the definition of marriage.

There is no need or imperative to reject the middle ground put forward by the Leader of the Opposition. I support the Charter of Rights and Freedoms. The Supreme Court has not said that we must change the definition of marriage. The Supreme Court has not said that the traditional definition of marriage is in violation of the charter. The Supreme Court has not said that recognition of same sex marriage as a union is in violation of the charter. The Supreme Court has said none of this despite the arguments put forward by the government.

With regard to the third proposal, by protecting the rights of religious institutions Parliament can support the rights of churches, mosques, synagogues and temples to recognize, perform and solemnize marriages on their own terms.

Parliament can ensure that churches have the right to privately and publicly preach their beliefs related to marriage. Parliament can ensure that justices of the peace and civil marriage commissioners are not forced to solemnize marriages against their own consciences. Parliament can also preserve the charitable and economic benefits that churches enjoy as public institutions and recognize the right of public officials to act in accordance with their own beliefs.

I know that these proposals will not make everybody happy. Some will want a strong endorsement of gay and lesbian marriage. Others will want a vote that recognizes traditional marriages only and with no recognition of gay and lesbian relationships whatsoever. Each of these positions is born of strong convictions, making compromise the only tenable position that we can take.

The need for a compromise stems from the need to reconcile the interests of societal beliefs, law and tradition in a manner that all the majority of Canadians would recognize as just. This should be Parliament's goal.

The position taken by the Leader of the Opposition is the compromise position. It is the moderate position and it accords with the general thoughts and beliefs of the majority of Canadians. While there are Canadians on both sides of this issue, we live in a society that prides itself on the ability to compromise and find solutions which take the concerns and positions of everyone into account. That is what we are attempting to do by putting forward a compromise position.

Some across the way would charge that if we do not change the definition of marriage we will in fact be denying rights to homosexual Canadians. Several European countries have shown that this is not the case.

A quick survey of countries in Europe shows that while the Netherlands and Belgium have adopted same sex marriage legislation, registered domestic partnerships are available in Sweden, Spain, Norway, Denmark, Finland, Germany, Iceland and parts of Italy. Civil pacts are available in France. Finally, the Czech Republic, Portugal and Switzerland are considering introducing legislation to provide protections, rights and benefits to gay and lesbian individuals in committed relationships.

Thus, other nations, and more important, other western democratic and constitutional nations, have found ways to deal with this issue. Their solutions are middle ground solutions and they are accepted by a consensus of the population in those countries.

The questions of rights in the states I have mentioned above have been settled by the legislation and arrangements which govern same sex relationships. The laws that are in place in these European countries are similar to the amendments put forward by the Leader of the Opposition.

The Leader of the Opposition has also called attention to recent legal developments in New Zealand. In New Zealand, which does not allow discrimination based on sexual orientation, courts still ruled that the opposite sex requirement for marriage was not a basic human right.

Closer to home, the Government of Alberta has also found a new arrangement that both retains the traditional definition of marriage and provides benefits, rights and privileges to homosexual couples. Alberta's Adult Interdependent Relationships Act balances the desire to promote the concept of marriage as an institution and the need for fairness for those who choose non-marital but interdependent relationships.

In this arrangement, Alberta defends all human rights and provides non-married couples the benefits that couples in a traditional marriage enjoy, so it is clear that there are arrangements that can be designed to both protect rights and retain the definition of marriage as that between one man and one woman.

Today marriage is seen as an institution that involves a union between one man and one woman. Societal institutions are by their very nature the products of convention and they owe their existence to society's recognition of the importance they hold. Those who see same sex marriage as a right are attempting to change this institution.

However, given the competing interests within society, the differing outlooks that citizens bring to the political arena, and the often difficult decisions regarding competing visions of what our laws ought to be like, it is our obligation as legislators to find a middle ground.

The key distinction here is recognition. Since 1977 gay and lesbian Canadians have benefited from increasing legal and legislative measures which have ensured that they are afforded equal status in the eyes of the law. During the 1990s, gay and lesbian couples in committed relationships or in “marriage-like” relationships, to use the B.C. court's term, have seen an increase in the rights and benefits that they are afforded.

In short, by the beginning of the 21st century, gay and lesbian Canadians in committed relationships could not legally be denied practical spousal rights and benefits. In this sense, the rights debate has been solved.

The debate over allowing gays and lesbians to access the institution of marriage, on the other hand, has not been resolved.

As I said earlier, the Supreme Court stated that the definition of marriage is a parliamentary responsibility, meaning both that it is federal in jurisdiction and that it is up to Parliament to decide whether or not the institution of marriage should be changed to allow access to gay and lesbian couples.

While the court did not rebuke lower courts that declared the traditional definition of marriage to be unconstitutional, it also did not endorse the position that the current definition of marriage is unconstitutional.

By suggesting that Parliament should decide, the Supreme Court made an implicit statement about the difference between rights and recognition, namely, that courts exist to protect and uphold the rights of groups and individuals and Parliament exists to express the national will regarding how those rights will be enshrined in legislation and recognized.

Same sex marriage, in a nutshell, is a recognition issue. As stated earlier, the rights component of this debate has largely been resolved and few Canadians are of the mind to reverse those decisions. Their opinion reflects their belief in equality for all Canadians under the law. They merely want the word “marriage” to remain as the union between a man and a woman.

The rights issue has been settled and the equality provisions continue to be settled. Simply put, the law sees heterosexual relationships and same sex relationships as equally significant and equally able to access spousal rights and privileges. The Conservative Party supports this view.

The question, therefore, is not about rights or equality. It is about marriage and whether Canadians would like to change the definition of marriage. It is about how Canadians would like to recognize legally equal, committed same sex relationships.

It is up to Parliament to decide the manner in which these rights are recognized. We believe these rights should be recognized fully, and all of the rights of marriage ought to be formally recognized in civil unions.

However, I believe that we do need to find a compromise by recognizing committed relationships between gays and lesbians as civil unions and retaining the traditional definition of marriage.

The majority of the letters that I have received from my constituents ask me to vote to retain the traditional definition of marriage. The majority of those same letters also ask that I work to protect the human and spousal rights of gay and lesbian individuals and couples. I agree with this position.

During this debate the Liberals have attempted to hide their politics by invoking the language of rights and accusing our party of not believing in rights. This could not be further from the truth. The Conservative Party has approached this issue as one where a reasonable compromise can be found. We have spoken honestly with Canadians and it is my hope that the House follows our lead.

I am proud to work with my constituents on such an important issue. I am proud that I can vote freely on their behalf.

Definition of Marriage Act

[Jay Hill, Conservative, Prince George—Peace River, BC]

Not at all, as my colleague says. He was part of that flawed process as well.

So we moved in the dying days of the last Parliament to correct that and ensure that all private members' legislation was votable. We moved the onus from the private member, from the individual member of Parliament, to the House. The committee, in representing the House, would have to prove that it should not be votable rather than the member having to prove that it should be.

Yet that process broke down in this one individual case. Why is that?

Why is that on a subject that is this important? We see that now with Bill C-38, the legislation now before the House. On a subject that is so very important to the foundations of this country, why is it that this particular bill was deemed non-votable?

I would contend that it is simply this. We know it is controversial. It is highly divisive for the country, for the nation, and this government feared that it might pass, because my colleague's legislation reaffirming the definition of marriage as the union of one man and one woman to the exclusion of all others preceded this government's bumbling efforts on this front.

At the time the Liberals were hoping that the reference to the Supreme Court would come back and do their job for them, because that is the way this government operates. The Liberals want the courts to do their work for them if it is an issue that is at all controversial rather than taking on the leadership mantle that should come with government.

I say shame on them. I hope the viewing public clearly understands what happened here: that these three parties that profess to believe in democracy worked together to ensure that my colleague's legislation did not come to a vote. They continued it today when he asked for unanimous consent to make this votable. This is the only bill that has been made non-votable.

I have only a few minutes left and I want to deal with the subject that is before us, rather than the process I have spoken of. On Fridays in my riding I have a weekly newspaper column. This week I wrote for the very first time on this subject. I want to read for the House the column that is running today in the newspapers in my riding of Prince George—Peace River. It is about choices. It states:

How do I best convey to you, the constituents of Prince George--Peace River, the position I have taken on one of the most controversial issues ever to be addressed by Canada's Parliament?

Before I continue, please allow me to unequivocally state that I intend to vote NO to Bill C-38, the federal Liberal government's legislation that would legalize same-sex marriage.

Why? I considered listing some of the legal arguments, articles and research I've read on the subject. I could discuss constitutional history and legal precedence...and at some point in this debate, which is expected to last several weeks, I may.

For now, however, I want to discuss choices. As I've told my children ever since they were knee-high to a grasshopper...“life is all about choices”. It is the choices we make in life that determine our destiny.

So it is for governments as well. The Liberals chose not to appeal a court ruling that declared the current definition of marriage unconstitutional. The Liberals chose not to support a Canadian Alliance motion in 2004 calling upon Parliament to re-affirm a commitment it made to a 1999 Reform Party of Canada motion vowing to defend the traditional definition of marriage.

Now, disastrously, for the preservation of freedom of religious expression in our country, the Prime Minister has chosen to relegate the historical, ages-old, traditional definition of marriage as the union of one man and one woman, to the exclusion of all others, to the scrap heap of history.

Every Prime Minister strives to leave a legacy...being forever known as the executioner of traditional marriage and freedom of religious expression may well be this Prime Minister's.

[He] contends the Supreme Court dictated the need to legalize same-sex marriage. Yet the Court not only refused to answer the federal government's reference on the constitutionality of traditional marriage, but made it clear that it was up to Parliament to decide--to make a choice--on this important social policy matter.

The Liberals promise they can protect religious freedoms. Yet, the Supreme Court ruled the provision in the government's draft legislation regarding the right of religious officials to refuse to perform gay marriages, is outside the jurisdiction of the federal Parliament.

[The Prime Minister] has made a conscious choice to legalize same-sex marriage--

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Madam Speaker, I am pleased to rise today to speak to the private member's bill of the member for Fundy Royal. I do not think it will come as any surprise to anyone in the House that I am not supportive of the bill.

I appreciate the concerns of the member though and his disappointment that his bill will not come to a vote. While I do not necessarily support his argument around that, I understand the frustration of a member of the House who introduces private member's legislation that he or she feels strongly about and hopes for the day when it will receive a debate in the House.

I did that myself. I have a bill on the order paper on the question of marriage. It is probably exactly opposite to the intent of the private member's bill of the member for Fundy Royal. However, my bill will not come to a debate now. Events have overtaken it. Court decisions have overtaken it. I appreciate that my bill is now somewhat redundant given the fact we are debating Bill C-38 in the House. However, it was important for me to introduce the bill. When I did it, it was done so it would put pressure on the government to stop its delaying and get on with the important business of getting the issue before Parliament and before the country.

That is one of the reasons why we introduce a private member's bills. I hope I helped move that along with my bill. I regret it will not have its day here in the House, but I am happy that Bill C-38 and the issue is firmly on the parliamentary agenda now.

I have real trouble with the bill on a personal level. It seeks to limit my participation in Canadian society and the participation of other gay and lesbian people in Canadian society. It says that there is a key institution of our society, a key institution which we in Parliament have responsibility for which is out of our reach and something in which we are limited in our participation. I cannot accept that.

Hundreds of gay and lesbian couples have now been legally married in Canada. That is thousands of Canadians. Thousands more Canadians have supported them in taking that step. Lots of clergy people as well have supported them in doing that. Many of those couples were married in churches and perhaps synagogues as well. It is something that has changed in our society, but the bill would seek to limit that positive change for many Canadians.

I do not think the fact that gay and lesbian couples can now be married in seven provinces and one territory has really changed our society all that much. I do not believe it has changed our understanding of marriage. I do not believe it has limited the ability, or commitments, or obligations, or understanding of marriage or traditions of marriage that heterosexual couples celebrate regularly in our society. Life is going on. I do not think society has collapsed because we now have hundreds of married gay and lesbian couples in Canada.

The bill claims to be about the definition of marriage, and we often talk lately about the definition of marriage. I do not think that is really what we are talking about. We are talking about something much more limited than that. We are talking about eligibility for marriage. If we were talking about the definition of marriage, we would be talking about things like love, commitment, faithfulness, responsibility, security and the care for children. All those kinds of things I think define marriage, not necessarily the gender of the couple who presents itself to be married.

We miss the point in a very particular and important way if we limit ourselves to considering the gender of the couple and not considering these other very important qualities about marriage. Love is something that is in short supply in our world. Commitment is something that is often challenged in our world. Faithfulness is sometimes very undervalued in our world. People need to be encouraged to take responsibility for their lives and for their relationships in our world.

All of us crave security and the creative space that builds for us and our children. In gay and lesbian and heterosexual relationships, we all know that having children in a secure setting does many wonderful things for them. Those are the kinds of things, if we were truly talking about defining marriage, we would be debating. What we are talking about is something much more limited.

I want to read a quote from the Right Reverend Peter Short, the Moderator of the United Church of Canada, who wrote an article called “Let No One Be Turned Away”. In that article Reverend Short describes marriage. He states:

Marriage lays a foundation, constructs a framework, and builds a house for love. Since constant perfect love is impossible (that's another story) marriage provides a structure, a habit of being together, a promise of faithfulness to carry us through those times when we know we must act with love but do not feel like loving. Eventually the house becomes a home, the wedding becomes a marriage, and the relationship becomes a habit of the heart.

Marriage functions the way any good habit or discipline functions. It helps us hang on through short-term ambiguity on the way to long-term freedom. The ambiguity is in the conflict between feeling and commitment. The freedom is in knowing there's a place to stand beneath the ambiguity--common ground. Common ground is not the same as having things in common, but you find that out in time.

It is important to remember that we are talking about this kind of commitment in this discussion. I do not think there is anything in the statement by Reverend Short that is not accessible to gay and lesbian couples. This is exactly what we hope for in our relationships and in our marriages. We need to remember that there is nothing in being gay or lesbian which limits our participation in that kind of love, relationship and marriage.

I am concerned when I hear discussion, some of which we have had this afternoon, that seems legalistic and very removed from the real lives of Canadians. It is hard for me as a gay man to listen to something which so affects on such an intimate level our lives and loves being debated in an abstract and legalistic kind of way. I remind people that when we are talking about this issue, we are talking about real people and real commitments.

I do not believe marriage between gay and lesbian people will change the lives of heterosexual couples in any way. I do not think it changes the commitments they make. It does not change the traditions they celebrate when they are being married.

I remember there was a demonstration outside our office about marriage several years ago. My predecessor, Svend Robinson, went out to speak to the people who were opposed the change in the definition of marriage. He asked rhetorically if any of them believed that his marrying his partner would change the other people's relationships with their husbands or wives. He further asked people to put up their hands if they thought his marriage to his partner, if he chose to do that, would change the other people's marriages. Not one of the people, who were there to oppose changing the definition of marriage to include gay and lesbian people, put up their hand. That is a significant indication.

I do not believe this change challenges religious freedom in Canada. If I thought that for one second, I would be opposed to doing it. I am an active member of the United Church of Canada. I will not support anything that I believe tilts us in the direction of limiting religious freedom in Canada. I do not believe raising this issue does that. I do not believe it is a slippery slope to take us toward that. I just do not think it is in the cards.

There is another thing I want to challenge. We hear that this debate, discussion and changes are being forced on us by decisions of the court and that somehow this is undemocratic. I do not think that is the case at all. This change is before us now because couples want to be married and want to uphold the traditions of marriage. They strongly support the institution and champion it. They went before the courts to say that they wanted to be married, that they wanted to uphold that tradition. That is why this issue is before us, not because of some legal process or some sort of judicial activism. It is because gay and lesbian couples decided to challenge the law and seek our full equality in society.

[Pierre Paquette, Bloc, Joliette, QC]

Madam Speaker, let me say from the outset that I am against this motion, even it is not votable.

The Bloc Québécois finds that two equally important essential values need to be protected and they are equality and freedom of religion. Both these values are protected under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.

The Bloc Québécois wants to allow same sex partners to get married if they so wish, in accordance with their right to equality, while protecting the rights of religious organizations such as churches, synagogues, temples or mosques to adhere to their beliefs and refuse to perform religious marriages between same sex partners. In our opinion, this is part of religious freedom.

When we look at the current law, we look at the Supreme Court ruling. In this matter, four questions had been submitted by the government to the highest court in Canada, as follows. First: does the federal government have the exclusive jurisdiction to define marriage? Second: does the charter allow religious groups not to perform marriages they feel go against their religious beliefs? Third: is the definition of same sex marriage constitutional? Fourth: is the traditional definition of marriage, in other words the union between a man and a woman to the exclusion of all others, constitutional?

In its ruling, the Supreme Court affirmed the federal government's exclusive jurisdiction over the definition of marriage and clearly established that the provinces have exclusive jurisdiction over the solemnization of marriage.

Adopting Quebec's position, the court mentioned that Parliament was encroaching on provincial jurisdictions with its draft provision to uphold the right of churches to refuse to perform marriages contrary to their religious beliefs. This falls under the solemnization of marriage, which is a jurisdiction of Quebec and the provinces.

A central element of the court's decision was its recognition that same sex marriage is consistent with the Charter of Rights and Freedoms. It also said that compelling religious officials to perform a marriage between two persons of the same sex that is contrary to their religious beliefs would be an unjustified violation of their religious freedom.

As for the fourth question, the court declined to answer it, citing respect for the acquired rights of same sex couples who have relied upon the finality of the decisions obtained in lower courts. On this subject, the court wrote:

There is no precedent for answering a reference question—this is paragraph 68—which mirrors issues already disposed of in lower courts—

The court is speaking here of decisions where an appeal was available but not pursued.

The court also mentioned that the Attorney General of Canada conceded, publicly and frequently, that the common law definition of marriage was inconsistent with s. 15(1) of the Charter and was not justifiable under s. 1. Thus, the court decided that answering question no. 4 would jeopardize the government's explicit goal of harmonizing civil marriage rights in all of Canada. Thus we see that moral questions are not within the scope of the decision Parliament must make.

Moreover, to demonstrate the way this issue can be understood, one of my constituents has written to me, saying that he is a practising Catholic, very involved in his community and his church. He wanted me to know that a number of Catholics think the Church is not moving in the right direction by not recognizing the rights of same sex couple to marry in a religious ceremony. I replied that, while I was sympathetic to his idea, it was not my place as a member of Parliament, or the place of Parliament, to pass judgment on debates within the Catholic Church or the Protestant churches or Muslim or Jewish congregations. That is the domain of moral doctrine.

What we are being asked to do as parliamentarians is to decide whether the state will give same sex couples the same right to marry as opposite sex couples have. So, this is a legal issue and we should not get involved in an internal religious debate, whether it is with the Catholic Church or any other church.

I should also point out that, in terms of the rulings made by the courts of various provinces, eight courts, in seven provinces and in the Yukon, ruled that preventing same sex couples from getting married violated their right to equality, as provided under the charter, and that such a violation of a protected right could not be justified in a free and democratic society.

The federal government decided not to appeal these decisions from the courts of appeal. These courts of appeal form a majority, since they represent seven provinces, including Quebec, and the Yukon. However, the federal government referred the issue to the Supreme Court to get its opinion. Earlier, I presented the court's opinion on the four questions asked by the government.

So, the definition of marriage, as reviewed by these courts, is the union of two persons for life, to the exclusion of all others, without any reference to the sexual orientation of these persons. Consequently, even if the bill introduced by the Minister of Justice were defeated in the House—something I do not wish at all—the right of same sex couples to marry would be maintained in those jurisdictions where the courts have already ruled on this issue, including Quebec.

I think we need to be very clear. I disagree with the motion because of the issue that we are debating here. I agree that this motion should not be a votable item, since it violates the Charter of Rights and Freedoms. What we have to decide here, without exceeding our jurisdiction, is whether the right to equality necessarily involves the possibility for same sex couples that so wish to have access to a civil institution, namely marriage.

In this context, the member will understand that even if his motion is not votable, the Bloc Québécois in no way supports it. We will have the opportunity to examine in greater detail the provisions of Bill C-38, introduced by the Minister of Justice. The leader of the Bloc Québécois outlined his position on this bill during the speech he made this week.

Still, I remind the House that the Bloc Québécois is allowing a free vote on Bill C-38, even if I and most of my colleagues in the Bloc Québécois intend to vote in favour of this bill. So, we in no way support this motion before us.

[Paul Devillers, Liberal, Simcoe North, ON]

Madam Speaker, the opposition has chosen to use some of the important time set aside in the House for a private member's bill to discuss yet another bill respecting the definition of marriage.

Does the proposal contained in Bill C-268 provide the House with any additional insight that could move the debate forward to constructive options? I regret to say that it does not. The bill has been ruled non-votable as unconstitutional in its approach. It is just another iteration of earlier bills which sought to reinstate the opposite sex requirements for civil marriage.

In his comments the hon. member referred to the opposition day vote in 1999. I was one of the 55 members who voted against that opposition day motion which would have had the effect of restricting marriage to people of the opposite sex. I did so for the very reason that one could foresee that the courts would apply section 15 of the charter and would hold that requirement discriminatory. Much has been made about it but it was foreseeable from a reading of the charter and a clear understanding of it.

Under our Constitution, the courts are mandated to review legislation to determine whether it meets charter requirements. The courts in seven provinces, namely British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Labrador and Nova Scotia, and one territory, Yukon, have now determined that the requirement that a spouse be of the opposite sex no longer satisfies the equality guarantees under section 15 of the charter. It is discriminatory towards Canadian gays and lesbians who want to get involved to the same extent as any other Canadian. It is discriminatory to deny them access to the civil institution of marriage.

The courts also clarified that their decision applies exclusively to civil marriage. They clarified that the charter also guarantees freedom of religion and that any religious group is free to continue to refuse to perform marriages that are not in accordance with their religious beliefs.

As members of the House are well aware, the government does not believe that this important matter should be decided by the courts in a patchwork of decisions across the country. The government believes that the courts are correct in their legal conclusions, but at the same time the government also fervently believes that only Parliament has the ability to look at the complete picture in designing a Canada-wide approach.

Courts and Parliament each have their distinct and complementary roles under our Constitution. That is why the government set in place last year an approach to this important question that involved a full and formal debate in Parliament.

Members will recall that in June 2003 following the Court of Appeal decisions in Ontario and British Columbia, the government announced that it would be drafting a bill and referring the matter to the Supreme Court.

The government did draft a bill that contained two important provisions. The first defined marriage as “the lawful union of two persons to the exclusion of all others”. The second stated, “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”.

The bill currently before the House, Bill C-38, is based on the bill that was referred to the Supreme Court of Canada. The bill ensures full respect for both of the important fundamental principles identified by the courts: equality based on personal characteristics like race, language, sexual orientation; and freedom of religion.

To further ensure that the government was correct in law that the bill would not infringe on freedom of religion, one of the specific questions asked of the Supreme Court was: Does the freedom of religion guarantee in paragraph 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? The court answered in the affirmative.

Last year, during the third week of October, the Supreme Court of Canada heard the arguments concerning the reference. The governments and 27 out of the 28 intervening parties, including the provincial governments of Quebec and Alberta, presented their positions over the course of two days. These parties presented a wide variety of opinions on many topics.

The government's purpose in referring the draft bill to the Supreme Court was to clarify the options available to the members of this House under the legislative framework of the charter. This ensures a constructive and informative debate during the parliamentary process. The purpose of the reference was not to bypass the parliamentary process.

The members of this House now have before them an analysis of legal topics by the Supreme Court. They also have an understanding of the constitutional impacts and the legislative framework in connection with the government's preferred approach with this bill now before them. In addition, the hon. members have the affirmation by the court that religious groups will be free to apply their own meaning to marriage, in accordance with their beliefs. This affirms the government's legal position.

The bill before us today does not do that. For starters, we already know that its first provision, which seeks to once more restrict the definition of marriage to a man and a woman, is unconstitutional under the law. Indeed, the bill was drafted in such a way as to completely ignore the events and debates of the last few years on this point.

It is as if the hon. member for Fundy Royal actually believes that legislation can be legitimately used to turn back the clock, ignoring the same definition included in clause 2 has been declared unconstitutional, not once but separately in binding court decisions in eight jurisdictions of the 13 jurisdiction in Canada. This is an effective means for this Parliament to find a workable solution to a real complex and important question.

The only way that the capacity to marry can now be restricted once more to opposite sex couples is for Parliament to deliberately decide to invoke for the very first time in history the notwithstanding clause in section 33 of the charter. That clause enables governments to expressly declare that a statute shall operate notwithstanding that it violates one of more of the fundamental rights and freedoms set out in the Charter.

In other words, in order to do so Parliament would first have to publicly acknowledge that it is aware of the discriminatory nature of the law but are insisting that in any event the law be proclaimed despite the fact that it deliberately discriminates against minority rights.

I do not believe in discriminating against any minority, let alone using the notwithstanding clause for the first time by the Parliament of Canada, not to protect our national security, not to ensure our collective safety but to deny to gay and lesbian couples who wish to express the same degree of commitment in a way that is available to any other couple; the ability to enter into and formalize one of the most meaningful relationships in life. Deliberately discriminating against one minority cannot be done without potentially placing minorities at risk and is inconsistent with the Canadian Constitution.

I am a Franco-Ontarian and, as such, a member of a language minority. The Charter of Rights and Freedoms protects such minorities, and I am grateful that it does. If gays and lesbians were to be removed from the protection of the charter, under the pretext that this is not a legal issue but a moral one, this would mean that, in the future, a similar application could be made to remove language minorities from the protection of the charter, under the pretext that it is too expensive. Consequently, it becomes an economic issue.

Therefore, we have a choice before us. Either go forward with Bill C-38, the actual bill which is before the House, make the law uniform for all of Canada or go back to the past using the notwithstanding clause.

The proposed solution in the bill before us today does not exist, and that is why it was declared non-votable by the House procedural committee.

Debate on Bill C-38 is the right way to proceed. Whatever one's position may be on this issue, it is better than moving ahead today with a debate on an approach that is a hollow sham and is no longer possible in the Canadian constitutional and legal framework.

[Rob Moore, Conservative, Fundy, NB]

moved that Bill C-268, an act to confirm the definition of marriage and to preserve ceremonial rights, be read the second time and referred to a committee.

Madam Speaker,I rise today to speak to my private member's bill, Bill C-268, an act to confirm the definition of marriage.

I was first elected to this House in June 2004. As a new member of Parliament, I was pleased when I was drawn fourth overall in the lottery on private members' business. Under the rules for private members' business this meant that I would be able to introduce a bill and have it considered, debated and voted on by members of Parliament.

I must say, however, that my work on this bill has been a reality check and illustrates to me that the democratic deficit our current Prime Minister had promised to slay is indeed alive and well.

My bill is unique in that it is relevant to the debate we are having in this House today on the Liberals' plan to change the definition of marriage. It is also unique because it is the only private member's bill in this session that has been deemed non-votable.

This private member's bill, like the government's Bill C-38, provides a legislated definition of marriage. However, unlike Bill C-38, my bill defines marriage as it always has been known: as the union of one man and one woman, to the exclusion of all others.

However, my bill will not be voted on, as the Standing Committee on Procedure and House Affairs ruled that my bill would be non-votable. The Liberals prevented my bill from bill being voted on so that this issue would only come forward to this House in their timing.

This constitutes, in my opinion, a gross interference by the Liberal government in private members' business. Private members' business is limited to only a few hours per week and there is already too little opportunity for members of Parliament to represent their constituents in this House.

To say the least, I also found the rationale for the committee's rejection of votable status for my bill to be without merit. I find that the process that led them to the decision was certainly flawed.

First, the Subcommittee on Private Members' Business met in private and in camera, without any representation from me, and acted as judge, jury and executioner of my bill by declaring it non-votable.

I of course appealed this decision to the full membership of the Standing Committee on Procedure and House Affairs, where the membership also prevented my bill from being made votable. Their flawed argument was that my bill was clearly unconstitutional.

To suggest that my private members' bill is clearly in violation of the Constitution is to take on the role of justices of the court, not parliamentarians. It is the constitutionality of the traditional definition of marriage that was the very issue in the reference the Attorney General of Canada put forward to the Supreme Court on January 28 of last year. The reference question states:

Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 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?

The committee prejudged the outcome of this important reference to the highest court of the land and therefore acted contemptuous to both the Supreme Court of Canada and to the Attorney General of Canada.

I argued at committee that if the constitutionality of even the common law definition of marriage, let alone a legislated definition of marriage, were clear, then there would be no need to ask the Supreme Court of Canada the question.

The Attorney General had put a bona fide question to the court. Why would the Attorney General waste taxpayers' money and the high court's time to answer a question that clearly had already been answered?

Under our judicial system, a decision of a provincial court only has application within the province in which that decision was rendered. The only court decision that applies to every province is that of the Supreme Court of Canada. In fact, this is the definition most recently upheld by Parliament as part of the Modernization of Benefits and Obligations Act.

In this respect, the ruling of the committee was in breach of the law passed by Parliament four years ago.

The definition of marriage contained in the bill is the same one that is the law in four provinces and two territories in this country. Further, British Columbia and Ontario courts of appeals went to great lengths to emphasize that they were changing the common law definition of marriage and that there was no legislated definition of marriage for them to deal with.

Bill C-268 contains a legislated definition of marriage with which the courts have not yet dealt.

Oftentimes a provincial court of appeal decision is overturned by the Supreme Court of Canada in favour of the reasoning of the original court. In both B.C. and Ontario there are lower court decisions that found the traditional definition of marriage was in fact constitutional. Further, the Supreme Court of Canada has never indicated in any ruling that the traditional definition of marriage was unconstitutional. To the contrary, when the Supreme Court ruled in the Egan case, Justice La Forest stated:

Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing, philosophical and religious traditions.

He went on to say, “In this sense marriage is by nature heterosexual”.

In spite of all this, the committee found that my bill was clearly unconstitutional.

The Standing Orders do not say that a bill is non-votable because it may, could, likely, or possibly violates the Constitution. The threshold is much higher. A bill must clearly violate the Constitution to be deemed non-votable. I submit that in light of the facts that I have already set out, my bill fell far short of that threshold.

In the meantime, since the committee ruled my bill non-votable, the Supreme Court has finally rendered its decision in the reference case. In the case it did not in fact find that the traditional definition of marriage was unconstitutional. As a matter of fact, it did not answer the very question that was put to it by the attorney general and therefore it put the issue back into the hands of Parliament. This is exactly what my bill would have done.

The great irony of my bill and the government's bill is that the Supreme Court ruling did not in any way whatsoever indicate that the traditional definition of marriage contained in my bill was unconstitutional. However, the court did rule that the government's bill, specifically the clause that purports to protect religious freedoms, was in fact ultra vires and unconstitutional.

I think it is important for members to remember, and for Canadians to understand, that allowing my bill to proceed through our democratic process in no way indicates support for the substance of the bill, but failure to do so clearly indicates suppression of democracy. By denying parliamentarians the opportunity to vote on my bill, we are subverting the limited democratic gains that we have made in the House.

We must remember that it is the role of Parliament to legislate, not to determine the validity of legislation. That role in our system is filled by the courts. It is the responsibility of Parliament to deal with matters of important social policy.

At every turn the Liberal government has sought to avoid meaningful public consultation and debate on the very important and foundational issue of marriage. When the House of Commons considered the issue of same sex marriage in 1999, not that long ago, the then justice minister and current Deputy Prime Minister clearly stated to Canadians, “The government has no intention of changing the definition of marriage or of legislating same sex marriages”.

At that time the government supported a motion which promised to use all necessary means to defend the traditional definition of marriage. In a true free vote the motion passed the House of Commons by a margin of 215 to 55, with the current Prime Minister and most of the then cabinet voting in favour of the traditional definition of marriage.

We fast forward a few years and today the position of the government stands exactly opposite to the position it promised to uphold in 1999. Instead of using all necessary means to uphold the traditional definition of marriage, the government is relying on a whipped vote to force cabinet ministers and some parliamentary secretaries to support legislation that would change the definition of marriage. Simultaneously we know that intense pressure is being applied on the government's own backbenches to ensure a favourable outcome for the government's controversial legislation.

What occurred between 1999 and 2005? How can something that is not considered a fundamental right in 1999 suddenly be so promoted in 2005?

The simple answer is that over the past five years the government has slowly, methodically and deliberately circumvented the democratic process. It has used litigation at lower court levels to try to create a fait accompli on the issue of same sex marriage.

Over the past several years, individual judges in lower courts of several provinces have struck down the traditional definition of marriage. However, the federal government refused to appeal lower court rulings, suddenly adopting the position that same sex marriage constitutes a fundamental right.

The federal government went so far as to stack the justice committee for an important vote on whether to appeal the Halpern Ontario Court of Appeal decision in this matter. It has further argued that Parliament itself has no right to respond to these rulings with legislation to protect the traditional definition of marriage.

In essence, the government attempted to shut down all meaningful debate on a vital question that has far-reaching policy implications. It was especially urgent for the Liberals that this issue not be front and centre in the last election, so they did all in their power to stifle debate and public input.

Last year this hidden Liberal agenda hit its first major snag. The government had referred the issue of same sex marriage to the Supreme Court asking four questions, one of which was whether the traditional definition of marriage was constitutional. Although federal lawyers tried to argue before the court that the traditional definition of marriage was not constitutional, the Supreme Court refused to be drawn into the political debate and declined to answer the question.

As a matter of fact, the Supreme Court, when we read its decision, contemplated answering the question either way. This has returned the matter to Parliament, which is exactly where it should be, for the consequences of what the government is attempting to do are serious.

Same sex marriage could have a profound implication on freedom of religion and freedom of conscience in Canada. For example, we have seen already where marriage commissioners in several provinces have already lost their jobs for refusing to agree to same sex marriage because it goes against their conscience. In an interview on CPAC on December 12, 2004, the deputy House leader for the Liberals stated that public servants, such as marriage commissioners, who refused to accept same sex marriage should be sanctioned or fired. That is shameful.

There is now a great concern in Canada that if same sex marriage is legalized, it will have a profound and long-lasting implication for freedom of religion and freedom of conscience, and it will become increasingly difficult for people who do not agree with same sex marriage to participate in public life.

While the government has claimed that it will protect religious freedoms, the evidence does not support this assertion. After all, past promises to use all necessary means to protect the traditional definition of marriage were violated in less than five years.

Moreover, a clear signal has already been sent by virtue of the fact that even cabinet ministers will not be permitted a free vote on this question. If even the rights of cabinet ministers to express their views on an issue of personal conscience cannot be protected, one can hardly place much confidence in promises to protect the freedom of other Canadians.

Further, the justice committee heard evidence that warned of the social impact on changing the definition of marriage. Experts testified that we were embarking on a policy experiment that would have a profound impact on the way we view relationships and value marriage in our society.

It was for these reasons that I introduced my bill, so that Canadians could be engaged in a debate that the Liberals tried to prevent from taking place. I am pleased that we were able to spark an interest in this issue. I am grateful to the thousands of Canadians who expressed support for our effort to preserve our most basic social institution.

In light of the fact that the committee members did not have the benefit of seeing the Supreme Court's decision before they made their own decision, and in light of the fact that the court has not ruled that the traditional definition of marriage is unconstitutional, I would now ask for unanimous consent that my bill be made votable.

Civil Marriage Act

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Madam Speaker, it is a privilege to rise today to make some comments with respect to Bill C-38. I want to divide my remarks into four basic sections: first, I will briefly make some political observations; second, I will deal with how I see the history of this matter; third, I will discuss what I consider to be a duty to act; and fourth, I will examine Bill C-38 and what I consider to be its weaknesses.

Just a few words on politics. I am privileged to be in my 17th year as a member of Parliament. During that period of time I have served with three leaders of the Liberal Party and one interim leader of the Liberal Party. Throughout that time my opposition to same sex marriage has been well known. Yet it is obvious by the fact that I am the first Liberal backbencher to speak, in fact the first Liberal to speak immediately after the Prime Minister, that there is no underhandedness in determining who will speak to this bill on this side.

In 17 years under three leaders and one interim leader, never have I been asked to submit a speech to anyone to have it reviewed or to have it vetted. Not that it would work, but it has simply never happened. I lament that there are situations where people seem to think that is necessary in a House of free and open debate.

I would like to turn now to the history of this matter as I see it. Back in Chilliwack, British Columbia, in 1994, I issued my first speech on this matter. I predicted that if matters were not observed quickly and a halt was not put to the movement, same sex marriage would become a fact in this country.

In a paper dated November 16, 1994, which I distributed to all members of Parliament, so anyone who was a member of Parliament in 1994 received it, I outlined exactly how this would happen and the steps that would be used to achieve this objective.

Sadly for me, because I hoped I would be wrong, matters have proceeded exactly as I predicted almost 11 years ago. Unfortunately, people refused to listen and they refused to believe.

I wrote a letter to former justice minister, Mr. Rock, pointing out that there was a court decision in Ontario from the then divisional court where two judges to one had decided in favour of traditional marriage. My point was that the dissenting judge had found that traditional marriage was unconstitutional. I warned the justice minister of the day that two to one in favour of traditional marriage today could be two to one against traditional marriage tomorrow, and what was he going to do about it?

He had written a letter to a concerned Canadian and this is dated February 24, 1997. I want to quote two paragraphs from it. It reads:

I take your concerns and those of Mr. Wappel seriously, but I do not agree that it is necessary to legislate to define marriage in heterosexual terms and I would like to take this opportunity to clarify why. The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others.

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Let me assure you that this government remains committed to supporting Canadian families and that there are no plans to change the concept of marriage in Canada.

I was not reassured by the reassurance and therefore I proposed a bill to amend the Marriage Act of Canada to enshrine the traditional definition of marriage into law.

I explained to the then justice minister why this was necessary given the divisions that were beginning to appear in the courts in our country. I brought that bill forward and it was vociferously opposed by the Department of Justice of the day. A new justice minister took up the cause and wrote to a supporter of my private member's bill on April 24, 1998. Justice Minister McLellan stated:

I take your concerns and those of Mr. Wappel seriously, but do not agree that it is necessary to legislate to define marriage in heterosexual terms, and I would like to take this opportunity to clarify why.

Clearly, everyone can see it is the same wording as a year ago from a previous justice minister. It continues:

The definition of marriage in law in Canada is already the union of one man and one woman to the exclusion of all others. It is not necessary to pass such legislation as in legal terms it would not add to or clarify the present state of the law in Canada.

Thus, the definition of marriage is already clear in law in Canada as the union of two persons of the opposite sex. Counsel from my department have successfully defended, and will continue to defend, this concept of marriage in court. Indeed, the same concept of marriage is present throughout the world. Even in the few European countries...which allow limited recognition of same sex relationships, sometimes in the same manner as common law spouses, a clear distinction is maintained in the law between marriage and same sex partnerships.

The House considered a motion on June 8, 1999, which stated:

That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.

That motion passed 216 to 55. Among the members of Parliament who voted in favour of that motion were, according to Hansard , Mr. Cauchon, Mr. Chrétien (Saint-Maurice), Madam McLellan (Edmonton West), Mr. Martin (LaSalle—Émard), and Mr. Rock.

In the year 2000 the House passed legislation known legally as the Statutes of Canada 2000, Chapter 12. In section 1.1 of that act, the House of Commons, in a government bill, supported by the Government of Canada, enacted the following legislation. This is not a preamble; this is legislation.

For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

In the face of that, in June of 2003 along comes the Court of Appeal decision in Halpern. In the meantime, the Prime Minister of the day had mandated the justice committee of Parliament to go across Canada to study this issue, make recommendations, and deliver a report to Parliament so that Parliament could debate this issue.

This brings me to the next part of my speech concerning duty bound to act. I maintain that it was the duty of the prime minister of the day and the justice minister of the day to uphold the laws and integrity of Parliament. As we have already heard, two justice ministers had already stated that the law was clear. A motion had been passed by Parliament supported overwhelmingly, including the government members and the cabinet, that the definition was included in a statute of the Parliament of Canada and the justice committee was mandated to study this issue.

After Parliament was adjourned and we were no longer sitting in caucuses, the Court of Appeal decision came out. Contrary to this duty to act to support the laws of Canada and the Parliament of Canada and the integrity of the Parliament of Canada, the prime minister of the day, without consultation with caucus, without consultation with Parliament, and without letting the justice committee finish its job, decided not to appeal the Court of Appeal decision of the province of Ontario, effectively undercutting and undermining his own legislation and the expressed will of Parliament.

I would now like to explain my views on why I consider Bill C-38 to be discriminatory, a sham, and a hoax on parliamentarians and Canadians. I am going to refer specifically to each of those categories.

In my view this bill is discriminatory. It has been argued that same sex marriage is somehow a right. This is not legally accurate. The Supreme Court, in the reference decision, did not declare that permitting same sex couples to marry was a right. Absolutely no country in the entire world has declared it to be a human right, including the two countries which presently allow same sex marriages. No one has done that.

How can something be a right when it is not recognized in law by anyone in any country in the world, including the Supreme Court of Canada, as a declared right? Therefore, to say a right is a right in the context of same sex marriage is legally wrong.

Then we have to turn to section 15 of the Charter of Rights and Freedoms which talks about laws being enacted without discrimination; in this case, without discrimination on the basis of sexual orientation. We have to look at the institution of marriage then.

Is the institution of marriage discriminatory? Of course it is, by its very nature. We cannot get married unless we are of a certain age. That is discrimination on the basis of age. We cannot get married if we do not have proper mental capacity. That is discrimination on the basis of disability. We cannot get married unless we are of the proper bloodline. That is discrimination on the basis of who our parents are or who our siblings are, including, as we will see later, adoptive children.

It discriminates against religion because it says we can only have in this country, not in the world but in this country, one spouse: one wife or husband. This is discrimination on the basis of sexual orientation because it says we must marry someone of the opposite sex.

To my mind the bill seeks to “fix” discrimination on the basis of sexual orientation by allowing people of the same sex to marry, but at the very same time the bill continues to permit discrimination on the basis of age. People still have to be of a certain age even though according to our laws, they can legally have sexual intercourse at the age of 14, but they cannot marry at the age of 14. It discriminates continuously on the basis of mental capacity and who decides on the mental capacity. It discriminates on the basis of bloodline and indeed, this particular bill perpetuates that discrimination in clause 13. It states:

Subsection 2(2) of the Marriage (Prohibited Degrees) Act is replaced by the following:

(2) No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.

It discriminates and continues to discriminate on the basis of religion because it says in clause 2:

Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

That discriminates against those religions that believe that it is perfectly acceptable to have more than one spouse. That is discrimination on the basis of religion.

Therefore, why is it acceptable to remove discrimination on the basis of sexual orientation but continue to permit and perpetuate in legislation and common law other forms of discrimination? Either we eliminate all forms of discrimination or we leave the current definition alone. It has worked for millennia. If it ain't broke, don't fix it.

That brings me to the subject of polygamy. Some say that raising polygamy is a red herring and has nothing whatsoever to do with this bill. That is utter legal nonsense. Polygamy is currently against the law, section 293 of the Criminal Code.

At the stroke of a judicial pen, that section can be declared unconstitutional on the basis of section 15 charter guarantees of freedom of religion. People say that is not going to happen, but I am going to give two real life examples.

The first one is the very definition of marriage. The law of this country was the common law for millennia. The law was that people had to be of the opposite sex. With the stroke of a pen, that which was illegal was made legal by the courts, not by the Parliament of Canada.

Section 159 of the Criminal Code reads: “Every person who engages in an act of anal intercourse is guilty of an indictable offence...”. It goes on. There are exceptions: “...any two persons, each of whom is eighteen years of age or more,both of whom consent to the act.” That is fine. There is no problem there.

That section was challenged on the basis that it was discriminatory because of age. Justice Abella of the Ontario Court of Appeal struck that section down because it was contrary to the age discrimination in section 15, in her view.What did that mean? That meant that for the Criminal Code of Canada, written into the laws of this country, which denied anal intercourse to people under the age of 18, with the stroke of a judicial pen that which was illegal became legal.

Why would members think, when those two examples have already occurred, it is beyond the pale that a judge at the stroke of a pen will declare polygamy legal because the law against it discriminates on the basis of religion?

Those who argue in favour of polygamy will say, “How can we end discrimination on the basis of sexual orientation in marriage but continue to permit discrimination on the basis of religious beliefs in marriage?” Where is the logic in opposing this argument?

Why is this bill a sham? First, the preamble is sleight of hand. It is meaningless legally. A court can refer to and follow preambles and has, and a court can ignore and has ignored preambles. The courts have already ignored the express will of Parliament, as I read from section 1.1 of the Modernization of Benefits and Obligations Act, so why does anyone think they will not ignore a preamble?

Why is the bill a hoax? Clause 3 of the bill states:

It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

The Supreme Court in the reference decision has stated clearly and unequivocally that this subject matter is out of bounds to the federal Parliament; it is ultra vires federal Parliament. That is not the member for Scarborough Southwest speaking. That is the Supreme Court of Canada speaking:

Legislative competence over the performance or solemnization of marriage is exclusively allocated to the provinces under s. 92(12) of the Constitution Act, 1867....Section 2 of the Proposed Act is therefore ultra vires Parliament.

Section 2 of the proposed act was virtually the same wording that is in Bill C-38. The court goes on to say:

While it is true that Parliament has exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such declaratory provisions can have no bearing on the constitutional division of legislative authority. That is a matter to be determined, should the need arise, by the courts. It follows that a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have no effect and is superfluous.

That section has no effect and is superfluous, according to the Supreme Court of Canada. How can a justice minister put a section into an act which the Supreme Court of Canada has already said is ultra vires Parliament of Canada? He cannot do it.

In conclusion, I just want the people of my riding to remember that I was very clear in my position. In June 2003 in my householder, I said:

--Parliament, by statute, reaffirmed the definition of marriage as the union of one man and one woman, to the exclusion of all others.

For me, there can be no other definition of this term.

This has been my consistent public position since I entered public life in 1988, four elections ago. My position is firm and unalterable. I will do all I can as an individual to try to preserve and promote the only definition of marriage I know.

I ask the Parliament of Canada to defeat this legislation and ensure that marriage remains between one man and one woman, to the exclusion of all others.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, I want to say that once again you have provided an outstanding judgment.

This afternoon we will continue with the NDP opposition motion.

Tomorrow we will begin with the motion standing in my name with regard to the Standing Orders. We will then proceed to report stage and third reading of Bill C-39, respecting the health accord. When this is complete, we will return to Bill C-38, which is the civil marriage bill. This will also be the business on Monday.

Tuesday will be an allotted day.

On Wednesday we will consider report stage and third reading of Bill C-33, the financial legislation; Bill C-8, the public service bill; Bill C-3, respecting the Coast Guard; and Bill S-17, respecting tax conventions.

At 4 p.m. on Wednesday the Minister of Finance will make his budget presentation. We shall take up the debate on the budget on Thursday.

As well, with respect to the hon. member's question, I would say to the hon. member that in the fullness of time we would have the Judges Act in the House. I will take every opportunity to ensure that House leaders are fully informed of when that legislation is to come to the House.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, I would like to say at the outset that I am sure you will take the opportunity, as my colleague requested, to review the blues and see specifically where the mention of Bill C-38 was in that question.

Would the government House leader care to indulge the members of the House of Commons and the general public and reveal what the government's agenda will be, the legislation before the House for the remainder of this week and into next week?

In addition, last week I asked him about the judges' remuneration bill, changes to the Judges Act, and he said that it would be forthcoming in due course. I just wonder if he has any further opinion on when due course will actually occur.

Civil Marriage Act

[Myron Thompson, Conservative, Wild Rose, AB]

Madam Speaker, I spent 32 years in the field of education, mostly at the secondary and junior high school level. During those years I had some experience dealing with mandated programs that came into play with regard to sex education and various things. This became quite an issue with a number of parents who felt that certain subjects should be left in the home, in the church, and not in the educational system. It was not long before those things were pretty well mandated across the country and have since become an intricate part of the educational system, much to the dismay of many.

As a consequence of that, private schools began cropping up because they did not want the mandated programs offered by the public system. I know for certain that lineups to get into private schools have grown since the introduction of this legislation because of the fear of what may happen in the public system as a result of the bill.

I wonder if the member could tell me what he anticipates might happen to the educational system at the secondary or junior high level, or even at the earlier levels if Bill C-38 is passed.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, on behalf of the New Democratic Party, I am proud to lead off the debate today on Bill C-38, the civil marriage act.

I had hoped to be able to share this time with my leader, the member for Toronto--Danforth, but he is still recovering from the appendix surgery he had on the weekend. I know we all want to wish him a quick recovery. As a long time supporter of the gay and lesbian community, I know he will be following the debate this afternoon with great interest.

I am proud today to speak to this important legislation as an openly gay man. Thirty-one years ago I was a 19 year old student at the beginning of my university career. I was struggling with coming out as a gay person. For years I had known the terrible isolation of being in the closet, holding a secret that I dare not tell anyone for fear I would be ostracized, beaten or worse.

As a young gay man I saw little hope of a relationship and certainly little hope of a relationship that would be celebrated and honoured as my parents' and grandparents' relationships had been celebrated and honoured. It just was not an option. Gay relationships when discussed at all were usually seen as fleeting, furtive, secretive. In my closet I was led to believe that promiscuity would be the only option if I was to live as an openly gay person.

However that did not sit well with the values I had learned in my family, my church and my community. At that time my very limited experience in the gay community had not shown me other possibilities.

It was at that time that I heard in the media the story of a brave Winnipeg gay couple, Chris Vogel and Richard North. Back in 1974, Chris and Richard challenged the marriage laws and attempted to get a marriage licence in Manitoba. They did not get the licence but they found support in a Unitarian church where they were married after the reading of wedding bans. Their action meant so much to a closeted young man from a small Ontario city.

What a revelation they were to me. Imagine, two gay men willing to challenge the laws and challenge society to seek to make a lifelong commitment to each other. Perhaps after all there was hope that I too could find that kind of loving, creative, secure partnership.

It is not as though gay and lesbian couples were not making commitments to each other back then and for many years before that, but emerging from the isolation of the closet one really had to be lucky to find them.

When I moved to B.C. in 1979 the longest gay relationship I had personally ever encountered was one that lasted 11 months, and that was one of mine. Arriving in Vancouver, almost within weeks I met, through my church connections, two couples who had been together for over 25 years. I could not believe it. Bruce and Ed, Patrick and Rob seemed like the most remarkable people to me, making a relationship work in a society that refused to recognize the full worth of gay and lesbian people, making a relationship work without the support of family, the church, the law. It literally filled me with awe and with hope. Their example opened new possibilities for my life. I longed for the security of home and family. When I thought about a relationship that was my priority.

Twenty-four years ago I met my partner, Brian, at a meeting of gays and lesbians at the University of British Columbia held at the Lutheran Campus Centre. Twenty-four years ago we began a relationship that continues to this day.

In my relationship with Brian, I found the love I yearned for, the security I was seeking, the creative energy that nourishes me and the mystery that continues to astonish me.

Twenty-four years ago, Brian and I could not be married. We made our accommodation with those circumstances. We have been lucky to be supported in our life together by family, friends, colleagues and our church family. We have not yet chosen to be married but to have that choice is very important to us.

Chris Vogel and Richard North continue to celebrate anniversary after anniversary. Just recently, in fact on the same day the Supreme Court ruled on the government's reference on marriage, Chris and Richard received the Manitoba Human Rights Commitment Award for their many contributions to human rights in that province.

Chris and Richard have been joined by many other brave gay and lesbian couples in recent years, couples who have not been afraid to put their relationships in the public spotlight by challenging the laws on marriage which excluded them. These couples challenged the laws in Ontario, B.C., Quebec, Nova Scotia, Yukon, Manitoba, Saskatchewan and Newfoundland and Labrador and they won their point. It is their efforts that have brought us to this debate today.

These couples have had an important effect on those around them. They have shown many people, whatever their sexual orientation, the importance of making a lifelong commitment. They have championed marriage as an institution of value and worth in our society. They have been role models for young gay and lesbian people who still, far too often, remain isolated and alone in communities in every corner of this country.

In a society where far too many gay and lesbian young people choose suicide, they have shown a way of hope, pride and possibility. In a world that cries out for love and commitment, for responsibility and for right relationship, these couples have had the courage to publicly celebrate their lives together. They have had the courage to call society out of its intolerance and prejudice. They have had the courage to honour an institution central to our society and central to many of our dreams and ideals.

It is not just the couples who challenged the law before the courts. Hundreds of gay and lesbian couples have been married in Canada in the past year. They are all witnesses to love and commitment, role models each and every one. This has not been an attempt to change our society's understanding of marriage. These are couples who sought to be included in marriage as we understand it today, not change its values, ideals or traditions. They have willingly and enthusiastically sought out its responsibilities, obligations and duties. They seek the stability it will allow for them, for their children and for their families.

The bill before us is also not an attempt to change marriage. The bill expands the definition of marriage to include gay and lesbian couples. It allows gay and lesbian couples to access civil marriage in Canada. It does not fiddle with the ideals of marriage, the responsibilities of marriage, the obligations of marriage. It merely acknowledges that the full equality of gay and lesbian Canadians demands our inclusion in marriage, our access to that institution.

On Monday, I was honoured to share a podium with my colleagues from Vancouver East and Hochelaga. My colleague from Hochelaga is also openly gay. I remember very fondly the day he came out publicly. In fact, I sent him a fan letter that day. I have great respect for his work toward the full equality of our gay and lesbian brothers and sisters in Quebec and Canada.

I am constantly proud to be associated with my sister from Vancouver East, who for many years was my member of Parliament and was the first member of Parliament in Canada to acknowledge that she was in a loving relationship with another woman. Her courage and her devotion to fighting for social change and justice inspire me daily.

I was honoured to share a podium with these hon. members as we explained why this debate was so crucial to us as members of the gay and lesbian community and as MPs. We made it clear that for us, this debate was not an abstract intellectual exercise, but that instead it was about how we live and love intimately, how we make personal commitments, how we celebrate our relationships. We spoke about how respect for the institution of marriage was a prime characteristic of our community's effort in this debate. We spoke about how being excluded from a key institution of our society made us second class citizens. We spoke about our support for religious freedom in Canada. We spoke about our determination to carry out this debate with both respect and directness.

This issue is more than just the consideration of civil marriage. It is actually about the full citizenship of gay and lesbian people, our full citizenship. Gay and lesbian people cannot be considered full citizens if key institutions of our society are considered out of bounds to us. We cannot be considered full citizens if civil marriage, one of those central institutions, is seen to be outside our experience and our reach.

Separate or new institutions or legal arrangements will not meet the test of the value of our citizenship. Civil union applied only to gay and lesbian couples is not an answer because separate is not equal. Separate water fountains, separate sections on the bus, separate beaches, none of these are acceptable in societies that value the full equality of their people. I and my party believe the same is true of civil marriage.

This matter is not one that limits religious freedom. The bill takes great pain to be clear on that subject. We in the NDP support the protection of religious freedom. I personally, as an active member of the United Church of Canada, strongly support religious freedom. No mosque, no temple, no church, no synagogue and no clergy person should be forced to perform a marriage of a gay or lesbian couple if that act conflicts with their belief, practice or theology.

Religious organizations must make decisions about religious marriage. However, religious organizations that choose to solemnize the marriage of gay and lesbian couples should also be able to do so in exactly the same way they do for heterosexual couples. Whether that means marrying a couple who has obtained a marriage licence or being able to officially register the marriage of a couple for whom banns have been read, those religious organizations should have that ability guaranteed as part of our commitment to religious freedom.

The Metropolitan Community Church fully supports the marriage of gay and lesbian couples and has worked hard to realize this change. The Unitarian Church and the United Church of Canada have been leaders toward this change, as has the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage. Ultimately this legislation is about state-defined civil marriage, not religious marriage.

Alex Munter, a spokesperson for Canadians for Equal Marriage, had high praise for Bill C-38. He said that the bill reflected the genius of Canada in the way in which it supported the full equality of gay and lesbian couples and at the same time provided for the protection of religious freedom.

I agree with Mr. Munter. The bill is indeed very Canadian. It provides for a difference of opinion, while both protecting and expanding basic rights important to Canadians.

Let me pay tribute to the efforts of Canadians for Equal Marriage and Egale Canada for their tireless work advocating for marriage rights for Canadians.

Not all gay and lesbian Canadians aspire to be married. Not all gay and lesbian couples in Canada will choose marriage. Some in our community have serious and important questions about the institution of marriage, and not all of our marriages will succeed. That is no different than the situation for heterosexual couples and straight people in Canada. In the same way that heterosexual couples have a choice to be married or not, I believe that gay and lesbian couples must have that same choice.

I know this issue is a difficult one for many members of Parliament. I know there are members who have been told that they are not welcome in their faith communities because of the position they have taken. I know all members have been flooded with letters of support and opposition to this legislation. I am well aware of the emotional toll that this debate is having.

As a gay man I can assure this House that gay and lesbian Canadians know all too well the risks associated with standing up for our full human rights. We know that we often lose friends, family connections, our welcome in faith communities and our jobs. We sometimes even experience intimidation and violence when we stand for our full inclusion in the community.

Let me assure my colleagues that there are joys associated with that risk too. There is light at the end of the tunnel.

I know that many of my constituents have strong feelings about this legislation. I have heard from thousands of people, many from Burnaby—Douglas, many from across Canada. My support for marriage will come as no surprise to my constituents. They know that I worked with my predecessor Svend Robinson over many years, supporting his early initiatives on this issue. People in Burnaby--Douglas respected Svend's position, even if they disagreed. He was always clear with them and accountable for his actions.

For my part, I too have been very clear about my stand. It came up regularly during last June's election campaign, in public meetings, in media interviews and on the doorstep. I never shied away from indicating that I would be a strong supporter and advocate for gay and lesbian marriage.

I was not alone in that position among candidates in my riding. In fact, a very strong majority of voters in my riding cast their ballots for candidates who were committed to supporting this kind of legislation.

I know not everyone in Burnaby--Douglas supports this bill. I respect their position. I appreciate hearing from them about their concern. However, when the vote comes I will be voting in support, ensuring that gay and lesbian couples can be married in Canada.

I also want to speak about my party's position on this issue. The New Democratic Party of Canada has been on the record for many years as supporting gay and lesbian marriage. It has been part of our election platform. In fact, the party policy committed the NDP to changing the law to include gay and lesbian couples in marriage in our first term should we form government.

The policy went further. After democratic debate at a party convention, delegates voted for a motion that directed caucus to support this change as a fundamental issue of human rights.

I do not know of any of our party's policies where delegates actually called caucus members to a particular course of action. It tells Canadians of our party's commitment. I am proud that we in the NDP will perhaps have the strongest overall commitment to this change of any caucus represented here in the House.

There are disappointments for me associated with this debate. I am disappointed that it has taken the government so long to get this on the agenda of the House, forcing couples at great personal expense and risk to take their concerns to the courts. I think that the government tried to keep this matter off the agenda of the last election by its reference to the Supreme Court. I think that was just a delaying tactic.

I am disappointed too that if it was up to the Liberal and Conservative Parties this legislation would fail. This is particularly troubling, given the Prime Minister's stirring defence of the charter and human rights in Canada in the last days of the election campaign. The Prime Minister wrapped himself in the charter and pledged to defend those rights. Today we see the Liberal caucus divided on this matter.

Without the NDP and the strong support of the Bloc Québécois, the legislation would not have a hope.

I hope the Prime Minister appreciates that it is the commitment of these two opposition parties to the charter, to human rights, to the full equality of gays and lesbians that will ensure the legislation passes.

I am also disappointed in the position taken by the Conservative Party. Perhaps I should not be surprised given that party's consistent history of failing to support initiatives that address the equality of gay and lesbian Canadians.

However, the way in which the Conservatives have made their argument has been particularly problematic. We first heard how this legislation presented a slippery slope that would lead to polygamy, a notion roundly criticized in many quarters and that ignores the very real problems associated with polygamy that is practised in Canada today. Then it was proposed that there could in fact be an opposite sex definition of marriage that would meet constitutional requirements without using the notwithstanding clause, a position that was denounced by over 130 legal and constitutional experts.

We then heard from the Conservatives that Canada's ethnic communities would not stand for including gays and lesbians in the institution of marriage, a suggestion that offended many in those communities and belied the political, social and religious diversity of ethnic communities in Canada.

And more recently, a longtime Conservative member of Parliament asserted that gay and lesbian Canadians were not discriminated against by the current definition of marriage because we were in fact free to marry a person of the opposite sex. There could be no position that denies the reality of our lives as gay and lesbian people more than that. It fundamentally denies the reality of our love, our commitments, our sexuality, our lives. It makes our love, our relationships invisible. I hope this is not a view that is widely shared in that party.

I have not heard effective reasons from the Conservatives yet, but I am willing to listen carefully to the debate in the coming days.

This legislation will be good for Canada. Because it recognizes the full equality of gay and lesbian couples, it will make a difference. Because it honours the institution of marriage by including couples who are dedicated to the ideals and responsibilities of that institution who do not take it for granted, who are willing to fight to be subject to its traditions and obligations, it will make a difference. Because it will bring joy to the very being of many people who will be able to make a commitment that they only dreamed might be possible or who have sought the opportunity to support gay and lesbian family members and friends find the important affirmation of their relationship, it will make a difference. Because it will say to people around the world that Canada honours and respects its gay and lesbian citizens and is prepared to bring them into full citizenship, leading not following the movement toward equality for gays and lesbians everywhere, it will make a difference.

Relationships are complicated. They are mysterious. They give meaning to our lives. For me, theologian Isobel Carter Heyward offers an excellent description of loving relationship when she says:

To say I love you is to say that you are not mine, but rather your own.To love you is to advocate your rights, your space, your self, and to struggle with you, rather than against you, in your learning to claim your power in the world.To love you is to make love to you, and with you, whether in an exchange of glances heavy with existence, in the passing of a peace we mean, in our common work or play, in our struggle for social justice, or in the ecstasy and tenderness of intimate embrace which we believe is just and right for us--and for others in the world.To love you is to be pushed by a power/god both terrifying and comforting, to touch and be touched by you. To love you is to sing with you, cry with you, pray with you, and act with you to re-create the world.

When it comes down to it, there is no difference in the love experienced by gay and lesbian couples and heterosexual couples. Love is love is love.

The bill is a cause for celebration. Soon, when it finally passes, we will be able to celebrate the love and commitment of all Canadian couples. The circle of love, of responsibility, of commitment, of marriage will be wider.

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, I want to ask my colleague and leader of the Bloc the following question.

One of the arguments presented by opponents of same sex marriage, as formulated by the leader of the opposition, is that of freedom of religion and the fear that adopting Bill C-38 would interfere with that freedom.

Is the opposite not true? In other words, is it not true that today, if the bill does not pass, and same sex marriage remains illegal, religious groups—I am thinking of the United Church, the Unitarian Church, the reformed branch of Judaism—who want to marry same sex couples, will not be able to do so because same sex marriage is illegal. If Bill C-38 does pass, it would permit these people—meaning these groups—who want to marry same sex couples to do so, while also protecting the right of the Catholic Church, the Baptist Church and other religious groups not to marry same sex couples if they so choose. In other words, will we not achieve the appropriate balance by protecting the right of some to perform marriages if they so choose and the right of others to not perform such marriages, if that is their choice?

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, there have been discussions with the other parties and I believe that you would find unanimous consent for the following motion. I move:

That today's government orders be extended to allow for one speaker from each recognized party on Bill C-38.