Mr. Speaker, I rise today to speak to Bill C-38, the civil marriage act. For many in the House, including me, the decision we must make on this legislation is one of the most difficult that we have been called upon to make as members of Parliament, namely, to support or oppose same sex marriage.
As we are all aware, on December 9, 2004 the Supreme Court of Canada ruled that the federal Parliament has exclusive jurisdiction to decide who has the right to get married in our country, while making an appropriate qualification that religious groups or clergy are not obliged to perform same sex unions against their beliefs, a very key exception.
The court's advice will assist parliamentarians in their deliberations; however, most important, it does not undermine the democratic role of Parliament. Parliamentarians in the House of Commons will make the final decision on the issue of extending civil marriage to same sex couples. Whether one is for or against same sex marriage, the decision will be made in a democratic way through full and transparent public deliberations followed by a free vote.
Over the past decade there have been several federal legislative changes to ensure legal rights on the basis of sexual orientation. These were emotionally charged debates as well. I supported every one of those initiatives and voted in favour of the legislation which enacted them.
In 1996 Bill C-41 amended Criminal Code sentencing provisions, setting out an aggravating sentencing factor for crimes motivated by bias, prejudice or hate based on listed personal characteristics, including sexual orientation. That is section 718.2 of the Criminal Code. Parliament also enacted the act to amend the Canadian Human Rights Act, which added “sexual orientation” to the CHRA's prohibited grounds of discrimination.
In 1999 Parliament adopted the first federal legislation to provide explicitly for same sex benefits. The Public Sector Pension Investment Board Act replaced opposite sex surviving spouse entitlement to benefits with gender neutral survivor entitlement in the major public service pension statutes. A survivor is one who establishes that he or she was cohabiting in a relationship of a conjugal nature with the contributor for at least a year preceding the latter's death.
In 2000 the Modernization of Benefits and Obligations Act was adopted. It amended 68 federal statutes to effect their equal application to unmarried heterosexual and same sex couples. The legislation adds the gender neutral designations “common law partner” and/or “survivor” to those statutes and restricts the term “spouse” to married couples. It is interesting to note however that the government added an interpretive amendment stating:
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 2002 immigration and refugee protection regulations under the 2001 Immigration and Refugee Protection Act authorized family class sponsorship for same sex couples under two new eligible gender neutral categories: a common law partner of a sponsor must fulfill a cohabitation requirement, while a sponsor's conjugal partner need not. In each case, the couple's conjugal relationship must be of at least one year's duration.
Since 1993 the government and I as a member in the House have taken very seriously the responsibility of protecting the rights of all our residents.
Canadians will not tolerate harassment of homosexuals or discrimination against same sex couples. At the same time many Canadians have difficulty, in good conscience, of accepting same sex marriage. Some have suggested the sanctioning of same sex civil unions, registered domestic partnerships or life partnerships which are equivalent to common law unions between heterosexual couples. I agree with this approach. Critics feel it falls short of true equity. By working with the provinces I do not believe it is necessary to change the definition of marriage in order to accommodate equality issues around same sex partners.
The common law definition of marriage was until recently undisputed as the union of two persons of the opposite sex, the union of one man and one woman to the exclusion of all others. Indeed this very House considered and supported a motion on June 8, 1999 which stated:
That, in the opinion of the 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. I supported it then and I support that position today.
Indeed, over the years our courts have supported this position, as was confirmed when former Supreme Court Justice LaForest speaking for the majority in the Egan case 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. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realties 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.
It is interesting to note that this pronouncement of the Supreme Court was made in 1991, 10 years after the Charter of Rights and Freedoms.
Some of us have advocated a compromise position that would draw together those on the one side who assert that any restriction on same sex marriage is discriminatory and a violation of human rights with those on the other side who assert that any recognition of homosexual relationships is intolerable. I firmly believe that most Canadians are most comfortable with a middle position recognizing the traditional and distinct definition of marriage as the union of one man and one woman, while recognizing that same sex couples should be entitled to all the rights, privileges and responsibilities of marriage, but that it should not be called marriage.
Opponents to this compromise position claim that anything less than full equality would continue a systemic discrimination of the homosexual community. I recall very clearly receiving this admonition from one of my constituents in the Township of Wainfleet. The thought of such an unintended consequence lingers in my mind and contributes to the difficulty of my decision.
I also recall a presentation on same sex marriages to the justice committee in rural New Brunswick when a United Church minister made an effective intervention in support of gay marriage with his desire to some day perform a marriage for his gay son and his partner. This presentation was in stark contrast to many other interventions from religious groups and made it abundantly clear that even the religious community is divided on this issue.
Most members in the House have received literally thousands of interventions on this issue, including conversations, telephone calls, e-mails and letters. I have been approached by constituents in coffee shops and churches, in the street and in stadiums, at community dinners and in restaurants. Many people who would ordinarily not come forward in these public areas have not hesitated to give me their views.
A tabulation of the positions of my constituents in Welland riding who have contacted me on this issue oppose this legislation as proposed on a 10:1 ratio. When asked their opinion on the middle ground, most would agree with it.
The stark reality of the same sex marriage debate is that today seven provinces and one territory have recognized the lawful union of two people of the same sex. It is already the law of those jurisdictions. For all intents and purposes the definition of marriage has been changed. This legislation will give it national application.
The real debate now must centre on whether the federal government should invoke the notwithstanding clause. My position is yes.
The courts see the issue as a rights issue, a charter issue, that it is the right of gay persons to be married. I see it as a social policy issue. My opposition centres around one word, marriage, when applied to gay unions.
I would like to acknowledge and thank the many constituents who have contacted me on both sides of this issue. They have contributed to the consideration and debate. Some do not appreciate the position I have taken but we have agreed to differ with mutual respect. That is the Canadian way.
However, if this legislation is to pass, there must be a healing period for Canadians to adjust to a new reality of civil marriage. The government's legislation affirms the charter guarantee of religious freedom, that religious officials are free to perform or not to perform marriage ceremonies in accordance with the beliefs of their faith. The response to the reference by the Supreme Court of Canada has made it patently clear that section 2(a) of the charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same sex marriages that are contrary to their religious beliefs.
As a consequence and in the words of the Prime Minister, “no church, no synagogue, no mosque, no temple, in no religious house will those who disagree with same sex unions be compelled to perform them”.
I have heard people express concerns that religious freedoms may be eroded even with assurances to the contrary. However, I want to point out that religious protections already in some cases take priority over other charter rights. the Catholic Church continues to refuse the ordination of women in a post-charter world. Many churches already refuse to marry people, particularly those who are divorced. I have yet to hear of any charter challenges on any of the foregoing. The assurances of religious views by the Supreme Court are very sound.
Many Canadians are struggling with this complex and difficult issue as I did. We are talking about changing one of the central and longstanding institutions of society. It is something that will bring out strong feelings on all sides. Notwithstanding, Canadians are tolerant and will respect a balanced and reasoned debate and further, when the decision is finally made will respect that decision. I appreciate the points of those who do not agree with me and hope that they can respect mine.