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.