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 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.

[Stephen Harper, Conservative, Calgary Southwest, AB]

Do you remember when the Prime Minister was a leadership candidate and wanted a democratic and respectful debate on this issue. On this side of the House, we hope that he and the members of his party will keep that promise during the course of this debate.

In August 2003, the Prime Minister, then a candidate for the Liberal leadership, who seemed very concerned with democracy and parliamentary reform, said that, “The courts having spoken, I believe that it's very important that Parliament speaks and that Parliament speaks through the voices of its representatives: members of Parliament. And what that essentially means is that this has got to be a debate that is civil, not a debate on which either side ascribes motivation, questions the motivation or ascribes blame, that in fact that the debate really deal with the fundamental social values of the country. And I think that that is what's going to happen”.

“There are going to be people who are going to raise other ways of looking at this. There are going to be people who will deal, for instance, who are going to raise the issue of civil union. And it may well be that they will raise solutions to the impediment that civil unions might provide. And I think that's an essential role of Parliament. And I think it's the kind of thing we should listen to”.

The Prime Minister had it right then, back in his democratic deficit fighting days as a leadership candidate. I hope he will remember his words of a year and a half ago and will not resort to the questioning of motives that he, his justice minister and others have increasingly resorted to in recent weeks when we propose the very policy on this issue that the Prime Minister used to win the leadership of the Liberal Party of Canada.

As the Prime Minister invited us to do, I do want to engage in this debate about fundamental social values. I do want to discuss how compromise proposals like civil unions may be able to resolve some of the impediments the Prime Minister noted. I hope the Prime Minister will extend to me and roughly half the members of the House and roughly two-thirds of the country who support the traditional definition of marriage, the courtesy of an open debate without facing spurious charges of bigotry or bad faith from the Prime Minister, his spin doctors or his media allies.

My position on the definition of marriage is well known, because it is quite clear. It is not derived from personal prejudice or political tactics, as some Liberal MPs would have us believe with their usual air of moral superiority. My position, and that of most of the members of my party, is based on a very solid foundation and time tested values.

I also want to point out that the members of my party, including those in our shadow cabinet, are perfectly free to vote according to their conscience without my interference.

It will come as no surprise to anybody to know that I support the traditional definition of marriage as a union of one man and one woman to the exclusion of all others, as expressed in our traditional common law. I believe this definition of marriage has served society well, has stood the test of time and is in fact a foundational institution of society. In my view the onus is on those who want to overturn such a fundamental social institution to prove that it is absolutely necessary, that there is no other compromise that can respect the rights of same sex couples while still preserving one of the cornerstones of our society and its many cultures.

Up until a few years ago, even within the modern era of the charter, Canadian law and Canadian society took for granted that marriage was intrinsic, by definition, an opposite sex institution. So obvious was this that until now a formal marriage statute has never been adopted by Parliament. This view was not even restricted to the numerous faces and cultures that have populated our great country from all corners of the earth, though it has been a universal view among them.

It has been a widespread view beyond religion as well. For example, the renowned McGill medical and legal ethicist, Dr. Margaret Somerville, a secular scholar operating in a public university without confessional or religious orientation, has argued that marriage is inherently an opposite sex institution. She points out that while social institutions can and should change in some of their accidental trappings, there are also inherent features that cannot change. As she writes:

Institutions have both inherent and collateral features. Inherent features define the institution and cannot be changed without destroying the institution. Collateral features can be changed without such impact. We rightly recognized that women must be treated as equal partners with men within marriage. While that changed the power of husbands over their wives, it simply changed a collateral feature of marriage. Recognizing same-sex marriage would change its inherent nature.

In a similar vein, former Supreme Court Justice Gérard La Forest, speaking on behalf of four judges in the majority in the Egan decision, the last case by the way where the Supreme Court addressed the definition of marriage directly, famously said the following:

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. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

I point out again, this is what the Supreme Court of Canada actually said, not, as the Prime Minister emphasizes, mere speculation about what it may say in the future. The statement was also written in 1995, over a decade after adoption of the Charter of Rights and Freedoms, and it remains the only commentary on the fundamental definition of marriage in any Supreme Court decision.

Even years after Justice La Forest's statements, members of the Liberal government still denied any hidden agenda to change the definition of marriage. In fact, the Deputy Minister stood in the House in 1999 and said the following on behalf of the government:

We on this side agree that the institution of marriage is a central and important institution in the lives of many Canadians. It plays an important part in all societies worldwide, second only to the fundamental importance of family to all of us.

The institution of marriage is of great importance to large numbers of Canadians, and the definition of marriage as found in the hon. member's motion is clear in law.

As stated in the motion, the definition of marriage is already clear in law. It is not found in a statute, but then not all law exists in statutes, and the law is no less binding and no less the law because it is found in the common law instead of in a statute.

The definition of marriage, which has been consistently applied in Canada, comes from an 1866 British case which holds that marriage is “the union of one man and one woman to the exclusion of all others”. That case and that definition are considered clear law by ordinary Canadians, by academics and by the courts. The courts have upheld the constitutionality of that definition.

The Ontario Court, General Division, recently upheld in Layland and Beaulne the definition of marriage. In that decision a majority of the court stated the following:

—unions of persons of the same sex are not “marriages”, because of the definition of marriage. The applicants are, in effect, seeking to use s. 15 of the Charter to bring about a change in the definition of marriage. I do not think the Charter has that effect.

I am aware, as are other ministers, that recent court decisions and resulting media coverage have raised concern around the issue of same sex partners. It appears that the hon. member believes that the motion is both necessary and effective as a means to keep the Government of Canada from suddenly legislating the legalization of same sex marriages. That kind of misunderstanding of the intention of the government should be corrected.

Let me state again for the record that the government has no intention of changing the definition of marriage or of legislating same sex marriages.

I fundamentally do not believe that it is necessary to change the definition of marriage in order to accommodate the equality issues around same sex partners which now face us as Canadians. The courts have ruled that some recognition must be given to the realities of unmarried cohabitation in terms of both opposite sex and same sex partners. I strongly believe that the message to the government and to all Canadian governments from the Canadian public is a message of tolerance, fairness and respect for others.

Marriage has fundamental value and importance to Canadians and we do not believe on this side of the House that importance and value is in any way threatened or undermined by others seeking to have their long term relationships recognized. I support the motion for maintaining the clear legal definition of marriage in Canada as the union of one man and one woman to the exclusion of all others.

Thus spoke at great length the Deputy Prime Minister of Canada, then justice minister, in this chamber less than six years ago.

Today, for making statements that are identical and for identical reasons, members of the government side resort to terms like bigot, reactionary and human rights violators. The hypocrisy and intellectual dishonesty of the government and some of its members at this point is frankly staggering.

Fundamentally, what has changed since the government, including the Prime Minister, voted for the traditional definition of marriage in 1999?

On this side, we do not believe that merely on the basis of lower court decisions, upheld only because the government refused to appeal, them that a fundamental social institution must be abolished or irretrievably altered. Only a free vote of the Parliament of Canada is an appropriate way to resolve such fundamental social issues.

As I say, I have made it clear that I and most of the members on this side of the House will vote against the bill as it now stands. We will vote to uphold the traditional definition of marriage. Those in this party, even in my shadow cabinet who consciously feel different, who believe that the definition of marriage should change, will have the full rights to express and vote their position on this subject.

My party wanted to adopt a reasonable position respectful of every social group. We also think our position represents the feelings and convictions of the majority of Canadians.

As the official opposition in a minority Parliament, we feel it is insufficient to oppose. We must also put forward a constructive alternative. We have discussed this issue and wrestled with this issue in our own caucus, as have Canadians in living rooms, kitchens, coffee shops and church basements across the country.

I know and we all know and understand that this is difficult. The issue involves all kinds of aspects of life that are very close to personal identity, to sexual identity which for many people has been a difficult path, cultural tradition and ethnic identity and of course personal faith in one's relationship to their God.

However, while there is no perfect answer, and there is no perfect answer that will satisfy everyone, we believe we can and should offer a compromise that would win the support of the vast majority of Canadians who seek some middle ground on the issue.

In our discussion with Canadians we find there are three groups in public opinion.

At the one end there is a significant body of opinion, led today by the Prime Minister, which believes that the equality rights of gays and lesbians trump all other considerations, trumping any rights to religious faith, any religious expression or any multicultural diversity, and that any restriction on the right to same sex marriage is unjustifiable discrimination and a denial of human rights.

At the other end, there is an equally significant body that thinks that marriage is such a fundamental social institution, not only recognized by law but sanctified by faith throughout the world and throughout history, that any compromise in terms of recognizing homosexual relationships is unacceptable.

However, we believe that the vast majority of Canadians believe in some aspects of both and they are somewhere in the middle. They believe that marriage is a fundamental distinct institution, but that same sex couples can have equivalent rights and benefits and should be recognized and protected.

We believe that our proposals speak to the majority of Canadians who stand in this middle ground and frankly, who seek such a middle ground. Our proposal is that the law should continue to recognize the traditional definition of marriage as the union of one man and one woman to the exclusion of all others, but at the same time we would propose that other forms of union, however structured, by appropriate provincial legislation, whether called registered partnerships, domestic partnerships, civil unions or whatever, should be entitled to the same legal rights, privileges and obligations as marriage.

Many of these types of unions are already subject to provincial jurisdiction under their responsibility for civil law. However, there are issues affecting rights and benefits within the federal domain, and our party would ensure that for all federal purposes those Canadians living in other forms of union would be recognized as having equal rights and benefits under federal law as well.

What we put forward, in my judgment, is the real Canadian way. The Canadian way is not the blindly, ideological interpretation of the charter put forward by the Prime Minister. It is not a case where one side utterly vanquishes the other in a difficult debate on social issues. It is a constructive way, and as debate in other jurisdictions has shown, and I draw this to the attention of the House, this debate will not reach a conclusion or social peace until equal rights, multicultural diversity and religious freedom are balanced.

We also oppose the government's bill because it is a clear threat to religious freedom. We are proposing amendments that will prevent any religious discrimination within the sphere of federal authority.

This bill, by failing to find a reasonable compromise, a reasonable middle ground on the central question of marriage, is fundamentally flawed.

There is a second major flaw. The so-called protection that the government has offered for even basic religious freedom is, frankly, laughably inadequate. It is totally dishonest to suggest that it provides real protection.

The government has only proposed one meagre clause to protect religious freedom, a clause which states that religious officials will not be forced to solemnize marriages, but the Supreme Court of Canada has already ruled that this clause is ultra vires. It falls within the provincial responsibility for the solemnization of marriage. Frankly, this section of the bill illustrates the depth of the government's hypocrisy and intellectual dishonesty in this legislation.

On the one hand, the government and its allies claim that any attempt to retain the traditional definition of marriage is unconstitutional on the basis of a decision the Supreme Court has not made and has refused to make. On the other hand, it is happy to insert into its bill a clause which the Supreme Court has already ruled is unconstitutional and outside of federal jurisdiction.

The government's constitutionally useless clause purports to protect churches and religious officials from being forced to solemnize same sex marriages against their beliefs, but this threat has always been only one of many possibilities. We note the Prime Minister did not choose to address a single other possibility. What churches, temples, synagogues and mosques fear today is not immediately the future threat of forced solemnization, but dozens of other threats to religious freedom, some of which have already begun to arrive and some of which will arrive more quickly in the wake of this bill.

As Catholic priest and writer, Father Raymond de Souza wrote last year in the prestigious religious journal First Things :

That is the worst-case scenario of state expansion. But state expansion will likely pass other milestones on its way there, eroding religious liberty on questions related to marriage. First it will be churches forced to rent out their halls and basements for a same-sex couple’s wedding reception. Then it will be religious charities forced to recognize employees in same-sex relationships as legally married. Then it will be religious schools not being allowed to fire a teacher in a same-sex marriage. Then it will be a hierarchical or synodal church not being allowed to discipline an errant priest or minister who performs a civilly legal but canonically illicit same-sex marriage. All of this can happen short of the worst-case scenario specifically exempted in the federal government’s proposed law.

We have already seen some of these things come to pass since this article was written in human rights tribunals and lower courts across the country. We have already seen a Catholic Knights of Columbus hall challenged before the B.C. Human Rights Commission for refusing to grant permission for a same sex wedding reception on church owned property.

We have seen civil marriage commissioners in British Columbia, Saskatchewan and Manitoba, who have religious or philosophical objections to same sex marriage, removed or threatened to be removed from positions by their government. We have heard the federal Minister responsible for Democratic Reform saying such employees should be punished or fired.

We have seen the Minister of International Trade saying that churches, including the Catholic Church in Quebec, have no right to be involved in any such debate. These may only be the beginning of a chilling effect on religious freedom for those groups and individuals who continue not to believe in same sex marriage.

Indeed, given the ferocity of the Prime Minister's new position, given the refusal to compromise, given the belief that any opposition to same sex marriage is akin to racial discrimination, the attack on religious freedom will inevitably continue on any aspect of religion that interfaces in any way with public life.

There are things, of course, that are within the federal sphere that can protect religious freedom. Parliament can ensure that no religious body will have its charitable status challenged because of its beliefs or practices regarding them. Parliament could ensure that beliefs and practices regarding marriage will not affect the eligibility of a church, synagogue, temple or religious organization to receive federal funds, for example, federal funds for seniors' housing or for immigration projects run by a church.

Parliament could ensure that the Canadian Human Rights Act or the Broadcasting Act are not interpreted in a way that would prevent the expression of religious beliefs regarding marriage.

Should the bill survive second reading, we will propose amendments in areas like these to ensure that in all areas subject to federal jurisdiction nobody will be discriminated against on the basis of their religious beliefs or practices regarding marriage.

The Prime Minister and several of his ministers have dishonestly claimed that the use of the notwithstanding clause was inevitable in order to preserve the traditional definition of marriage. That is not true, and such arguments are unworthy of a conscientious parliamentarian, especially someone who is a lawyer.

In fact, this Parliament can protect the institution of traditional marriage very well and respect the rights and privileges of those who chose another form of union, without departing from the Charter of Rights and Freedoms in our Constitution.

Some people have suggested that we cannot do what we propose to do; that is, preserve marriage as the union of one man and one woman while extending equal rights and other forms of union without invoking the notwithstanding clause of the Constitution.

I am going to take a little time on this. It is red herring argument, but we might as well spell it out. The attack is dishonest on several levels. First of all, and this is important when we start talking about the notwithstanding clause, the Liberal Party and this Prime Minister have no leg to stand on when it comes to preaching about protecting human rights and the notwithstanding clause. It was none other than Prime Minister Pierre Trudeau, the author of the charter, who accepted the notwithstanding clause. Far from believing it to be a necessary evil to win support for the charter, he promised to use it. Specifically, he promised the late Cardinal Gerald Emmett Carter that he would use the notwithstanding clause to uphold Canada's legislation on abortion if it were struck down by a future Supreme Court.

In the more recent debate over same sex marriage, in an earlier phase of it, this Prime Minister promised that he would use the notwithstanding clause should a court ever infringe on religious freedom, although of course no one takes his commitments to religion seriously any more.

In fact, this Prime Minister was a member of Parliament from Quebec in 1989 when the provincial government in his province used the notwithstanding clause to ban English on commercial signs. He had next to nothing to say about it then and in the subsequent Liberal leadership race in less than a year he supported the notwithstanding clause.

I have said I would not use section 33 to preserve the traditional definition of marriage because quite simply it is not necessary in this case. The Supreme Court of Canada has not ruled on the constitutionality of the traditional definition of marriage. The court pointedly declined to do so in the recent same sex reference case, despite a clear request from the Prime Minister that it do so. In fact, the court openly speculated on the possibility that it could uphold the traditional definition. Therefore, there is simply no reason to use or discuss the notwithstanding clause in the absence of a Supreme Court decision, especially when it involves precedent based only on common law judgments.

Many legal experts, many of them coincidentally people who have been activists involved in these cases or who are close to the Liberal government, have said that the courts are likely to rule that the traditional definition of marriage is unconstitutional, but these same legal experts said that the Supreme Court would find the traditional definition of marriage unconstitutional in the reference case and they were wrong.

We have no reason to believe that the crystal balls in the justice department or in the law faculties are operating any better after the reference case than they did before it. Furthermore, up until now the courts have largely been interpreting a common law definition of marriage; in other words, previous court judgments not statutes reflecting the democratic will of Parliament. The courts have indicated clearly that statute law requires greater deference than common law.

In the case of R. v. Swain in 1991 then Chief Justice Lamer wrote in the majority the following:

Parliament, because of judicial deference, need not always choose the absolutely least intrusive means to attain its objectives but must come within a range of means which impair Charter rights as little as is reasonably possible. There is no room for judicial deference, however, where a common law, judge-made rule is challenged under the Charter.

There are several precedents of Parliament passing statutes without using the notwithstanding clause to reverse decisions made by the courts including the Supreme Court under common law and the courts have accepted these exercises of parliamentary sovereignty.

For instance, in 1995 Parliament passed Bill C-72 reversing the Supreme Court's decision in Daviault, a decision which allowed extreme intoxication as a criminal defence.

In 1996 Parliament passed Bill C-46 reversing the Supreme Court's decision in O'Connor, which allowed the accused to access medical records of the victims in sexual assault cases. When this new law was challenged in the subsequent Mills case, the Supreme Court ruled in a decision by Justices McLachlin and Iacobucci:

It does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament's law is unconstitutional. Parliament may build on the Court's decision, and develop a different scheme as long as it remains constitutional. Just as Parliament must respect the Court's rulings, so the Court must respect Parliament's determination that the judicial scheme be improved. To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy.

We have every reason to believe that the Supreme Court, if it were eventually asked to rule on a new statutory definition of marriage combined with full and equal recognition of legal rights and benefits for same sex couples might well choose to act in a much more deferential manner toward the Canadian Parliament than lower courts showed toward ancient, British made, common law definitions.

I should point out that I am far from alone in saying this. Law Professor Alan Brudner at the University of Toronto wrote in the Globe and Mail :

--the judicially declared unconstitutionality of the common law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

He cited R. v. Swain and wrote, “For all we know, therefore, courts may uphold opposite sex marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body”.

To those in government, in academia and the media who have argued that a pre-emptive use of the notwithstanding clause is the only way to uphold the traditional definition of marriage, he said the following:

These arguments misconceive the role of a notwithstanding clause in a constitutional democracy. Certainly, that role cannot be to protect laws suspected of being unconstitutional against judicial scrutiny....Rather, the legitimate role of a notwithstanding clause in a constitutional state is to provide a democratic veto over a judicial declaration of invalidity, where the court's reasoning discloses a failure to defer to the parliamentary body on a question of political discretion....But if that is true, then the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law. And neither it, nor any provincial court outside Quebec has yet ruled on whether democratic legislation restricting marriage to heterosexual couples is valid.

I would add, and this is important, that Professor Brudner is neither a supporter of my party nor even a supporter of my position on the marriage issue. He was not even an adviser to my leadership campaign, unlike the principal organizer of a recent letter from a group of law professors backing the minister's decision.

In short, we have every reason to believe if the House moved to bring in a reasonable, democratic, compromise solution, one which defined in statute that marriage remains the union of one man and one woman to the exclusion of all others, which extended equal rights and benefits to couples living in other forms of unions, and which fully protected freedom of religion to the extent possible under federal law, that the Supreme Court of Canada would honour such a decision by Parliament.

The courts refused to answer the Prime Minister's question on the constitutional validity of the common law opposite sex definition of marriage because they did not want to pre-empt the work of Parliament. That suggests to me that they would be even more likely to defer to the judgment of Parliament when faced with a recently passed statute.

The members of the House, starting with the Minister of Justice, should actually read the same sex reference decision. I ask, if the Supreme Court actually believed that the traditional definition of marriage was a fundamental violation of human rights as, say, restricting aboriginal Canadians or non-Caucasian immigrants from voting, do we really think the Supreme Court would have engaged in an analysis of the possibility that it could uphold such a law even hypothetically? The answer is, of course not.

The government has also claimed and is still claiming that marriage between persons of the same sex is a fundamental right. That is another erroneous opinion and a totally specious argument the government wants to spread. Government spokespersons bring disgrace on themselves, however, when they wrongly try to invoke the Charter of Rights and Freedoms to cover up their threadbare arguments.

I want to address an even more fundamental question. That is the question of the issue of human rights as it pertains to same sex marriage and the use and the abuse of the term “human rights” in this debate which has been almost without precedent.

Fundamental human rights are not a magician's hat from which new rabbits can constantly be pulled out. The basic human rights we hold dear: freedom of speech, freedom of religion, freedom of association, and equality before the law, the kind of rights that are routinely violated by the Prime Minister's good friends in states such as Libya and China, are well understood and recognized around the world. These rights do not depend on Liberal bromides or media spinners for their defence.

The Prime Minister cannot through grand rhetoric turn his political decision to change the definition of marriage into a basic human right because it is not. It is simply a political judgment. It is a valid political option if one wants to argue for it; it is a mistaken one in my view, but it is only a political judgment. Same sex marriage is not a human right. This is not my personal opinion. It is not the opinion of some legal adviser. This reality has already been recognized by such international bodies as the United Nations Commission on Human Rights.

Mr. Speaker, I refer you to New Zealand's Quilter case. In 1997 the New Zealand court of appeal was asked to rule on the validity of the common law definition of marriage in light of the New Zealand bill of rights which, unlike our charter, explicitly prohibits discrimination based on sexual orientation. New Zealand's court ruled that the opposite sex requirement of marriage was not discriminatory. So the plaintiffs in this case made a complaint to the United Nations Commission on Human Rights that the New Zealand court violated the international covenant for the protection of rights to which New Zealand, like Canada, is a signator. But the UNCHR rejected this complaint in 2002, in effect upholding that same sex marriage is not a basic universal human right.

If same sex marriage were a fundamental human right, we have to think about the implications. If same sex marriage were a fundamental right, then countries as diverse as the United Kingdom, France, Denmark and Sweden are human rights violators. These countries, largely under left wing governments, have upheld the traditional definition of marriage while bringing in equal rights and benefits regimes for same sex couples, precisely the policy that I and the majority of the Conservative caucus propose.

Even those few countries that have brought in same sex marriage at the national level, currently only the Netherlands and Belgium, did not do so because their own courts or international bodies had defined this as a matter of human rights. They did so simply as the honest public policy choice of their legislatures. In fact, both the Netherlands and Belgium legislated some differences in same sex marriage as opposed to opposite sex marriage in many areas but particularly in areas like adoption.

In other words, no national or international court, or human rights tribunal at the national or international level, has ever ruled that same sex marriage is a human right.

The Minister of Justice, when he was an academic and not a politician, would have appreciated the distinction between a legal right conferred by positive law and a fundamental human right which all people should enjoy throughout the world. Today he is trying to conflate these two together, comparing a newly invented Liberal policy to the basic and inalienable rights and freedoms of humanity.

I have to say the government appears incapable of making these distinctions. On the one hand the Liberals are friends of dictatorships that routinely violate human rights to whom they look for photo ops or corporate profits. On the other hand they condemn those who disagree with their political decisions as deniers of human rights, even though they held the same positions themselves a few years, or even a few months ago.

Quite frankly the Liberal Party, which drapes itself in the charter like it drapes itself in the flag, is in a poor position to boast about its human rights record. Let us not forget it was the Liberal Party that said none is too many when it came to Jews fleeing from Hitler. It was the Liberal Party that interned Japanese Canadians in camps on Canada's west coast, an act which Pierre Trudeau refused to apologize or make restitution for, leaving it to Brian Mulroney to see justice done. Just as it was Mr. Mulroney and Mr. Diefenbaker who took the great initiatives against apartheid, Mr. Diefenbaker with his Bill of Rights, and I did not see a notwithstanding clause in that. It was the Liberal Party that imposed the War Measures Act.

Today it is the Liberal Party that often puts its business interests ahead of the cause of democracy and human rights in places like China. Recently in China it was the member for Calgary Southeast who had to act on human rights while the Prime Minister went through the diplomatic moves.

The Liberal Party has spent years repressing free speech rights of independent political organizations from Greenpeace to the Canadian Taxpayers Federation that might want to speak out at election time. It has consistently violated property rights and has put the rights of criminals ahead of those of law abiding gun owners. The Liberal government has ignored the equality rights of members of minority religious groups in education in the province of Ontario even after international tribunals have demanded action.

I am not here to say that this party's or this country's record on human rights is perfect. It is far from perfect; we can read about it in any number of places. However, the Liberal Party of Canada is simply in no position, either past or present, to lecture anyone about charter rights or human rights.

In this debate the government has resorted at times to demagoguery, attacking our position with equal intellectual dishonesty. The government has demonstrated its fundamental disregard for the opinions of a majority of Canadian men and women of good will.

In particular, it has been unforgiveably insensitive with regard to all cultural communities in this country for which marriage is a most deeply rooted value.

Nowhere have the Liberals been more vociferous in their attempts to link same sex marriage to minority rights than among Canada's ethnic and cultural minority communities. Yet at the same time, they have clearly wanted these communities excluded from this debate. Why? Because, to their embarrassment, the vast majority of Canada's cultural communities, setting aside those groups dependent on Liberal funding, see through the Liberals' attempt to link basic human rights to the government's opposition to their traditional practices of marriage.

Many new Canadians chose this country, fleeing regimes that did and do persecute religious, ethnic and political minorities. They know what real human rights abuses are. They know that recognizing traditional marriage in law while granting equal benefits to same sex couples is not a human rights abuse akin to what they may have seen in Rwanda or China or Iran.

What these new Canadians also understand, and what this government does not, is that there are some things more fundamental than the state and its latest fad. New Canadians know that marriage and family are not the creature of the state but pre-exist the state and that the state has some responsibility to uphold and defend these institutions.

New Canadians know that their deeply held cultural traditions and religious belief in the sanctity of marriage as a union of one man and one woman will be jeopardized by a law which declares them unconstitutional and brands their supporters as human rights violators.

New Canadians know that their cultural values are likely to come under attack if this law is passed. They know that we are likely to see disputes in the future over charitable status for religious or cultural organizations that oppose same sex marriage, or over school curriculum and hiring standards in both public and private religious and cultural minority schools.

New Canadians, many of whom have chosen Canada as a place where they can practise their religion and raise their family in accordance with their beliefs and without interference from the state, know that these legal fights will limit and restrict their freedom to honour their faith and their cultural practices.

Of course, in all of these cases, courts and human rights commissions will attempt to balance the basic human rights of freedom of religion and expression with the newly created legal right to same sex marriage, but as our justice critic has remarked, we have a pattern: wherever courts and tribunals are faced with a clash between equality rights and religious rights, equality rights seem to trump.

The Liberals may blather about protecting cultural minorities, but the fact is that undermining the traditional definition of marriage is an assault on multiculturalism and the practices in those communities.

All religious faiths traditionally have upheld the belief that marriage is a child-centred union of a man and a woman, whether Catholic, Protestant, Jewish, Hindu, Sikh or Muslim. All of these cultural communities, rooted in those faiths, will find their position in society marginalized.

I believe the Liberal vision of multiculturalism is really just a folkloristic one. The Liberals invite Canadians from cultural communities to perform folk dances and wear colourful costumes, but they are not interested in the values, beliefs and traditions of new Canadians unless they conform to the latest fashions of Liberalism. All races, colours and creeds are welcome in Liberal Canada as long as they check their faith and conscience at the door.

That may be the Liberal vision for Canada in the 21st century, but it is not ours. In our Canada, vibrant cultural communities will be allowed to share not only their food and their dress but their beliefs and aspirations for themselves and their families.

The conscience of all members of this House is involved in the decision we must reach. I urge all the men and women sitting here today to set aside all partisan considerations and all personal ambitions, in this extraordinary situation, and to listen to the voice of their conscience and the voice of their duty, as representatives of the people of Canada. Yes, this decision may have repercussions in a day or in a month, but we must make it while thinking of past and future generations.

The decision that we are being asked to make on this bill is a difficult one. For many, the decision we make on the bill will be one of the most difficult decisions they will be called upon to make as members of Parliament, but before we all do so, let us remember one thing clearly, because this is where I object most strongly to what the Prime Minister said.

Regardless of what the Prime Minister says, we all do have a choice in the position we take here. We all know that the House is closely divided. I think we all know that if it were a truly free vote, if the ministers like the Minister of Citizenship and Immigration, the government House leader, the Minister of Natural Resources, the associate Minister of National Defence, the Minister of State for Northern Ontario, and many others, were free to vote their consciences, we know this bill would fail.

This bill is too important to be decided on the basis of a whipped vote, whether the formal whip that is being applied to a minister, or the informal carrots and sticks that are being applied to other members. I appeal to the consciences of those on the government side.

I know that many of the government members in their hearts believe in the traditional definition of marriage and know that we are talking about this today only because the Prime Minister has literally no other legislation for Parliament.

I ask them to join with us to defeat the bill and urge the adoption of another which reflects the practice in other advanced democracies and which reflects our own honourable traditions of compromise.

There are fundamental questions here. Will this society be one which respects the longstanding basic social institution of marriage or will it be one that believes even our most basic structures can be reinvented overnight for the sake of political correctness?

Will this society be one which respects and honours the religious and cultural minorities or one which gradually whittles away their freedoms and their ability to practise their beliefs?

Will this be a country in which Parliament will rule on behalf of the people or one where a self-selected group of lawyers or experts will define the parameters of right and wrong?

All of these questions are in our hands to answer. It is up to all of our consciences. It is not what the Prime Minister and the PMO advisers tell us is most expedient; it should be based on our consciences and what our constituents tell us to do.

Mr. Speaker, before I leave the floor, I would like to move an amendment. I move:

That the motion be amended by deleting all the words after the word “that” and substituting the following:

This House declines to give second reading to Bill C-38, an act respecting certain aspects of legal capacity for marriage for civil purposes, since the principle of the bill fails to define marriage as the union of one man and one woman to the exclusion of all others and fails to recognize and extend to other civil unions established under the laws of a province, the same rights, benefits and obligations as married persons.