Mr. Speaker, the marriage bill before the House represents a balance between two important objectives that have driven the government's handling of this issue from day one.
The first is the extension of equal rights to a minority group, in this case, extending access to civil marriage to same sex couples who wish to make the same significant commitment to each other in a marital relationship as opposite sex couples.
The second is to ensure the equally fundamental and compelling guarantee to freedom of religion. In this context, that means the freedom of religious groups and officials to make up their own minds about this issue, to set their own requirements for marriage and to marry only those persons who meet those requirements.
Religious groups already have had this right for some time. Religious groups already refuse to marry people who would be able to marry civilly. For example, those who are divorced cannot marry in some religions and those who are first cousins, but they can marry in a civil ceremony.
The intent to balance these two compelling Charter of Rights and Freedoms can be seen in the structure of the bill. Its essence is contained in two simple provisions. The first states, “Marriage for civil purposes”, and I stress civil purposes, “is the lawful union of two persons to the exclusion of all others”. The second 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 intent to balance these two principles can also be seen in the preambles to the bill. Two in particular speak of religious freedom:
WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;
WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.
The intent to do so can also be seen in the government's decision to first refer the bill to the Supreme Court of Canada last year before the tabling the bill in the House. One of the government's main concerns in doing so was to ensure that religious officials had the necessary protection under the charter. In response to concerns by some religious groups and individuals, the government posed the question directly to the Supreme Court:
Does the freedom of religion guaranteed by 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 government is already firmly of the view that religious freedom would not be affected by the bill and now the Supreme Court of Canada has also provided that strong endorsement. In fact, it made some of the strongest statements ever on the nature of the charter's guarantee of freedom of religion. The court said:
It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter.
The court went on to say that religious freedom was already protected by the charter and that religious officials would be protected from being compelled to perform both religious and civil marriages and religious institutions would be protected from being forced to provide their sacred spaces.
Earlier Supreme Court cases have upheld the right of religious institutions to compel observance of their religious tenets by officials and key employees, such as teachers. This would seem to be a very clear protection. However, if further more specific protections are desired, for example, for civil marriage officials, commercial provision of services to the general public, rentals, et cetera, the Supreme Court has indicated that they would have to be added in provincial and territorial laws as these matters are within its jurisdiction and not that of the federal government.
Some have used this fact as a basis to suggest that the federal government should not be moving ahead with the bill at all as it cannot guarantee religious freedom. In my view that is a deliberate misunderstanding of what the court said. The charter already provides that protection and so the court clearly has said that there is no need for further specific protections, which is also my understanding of where some of the provinces and territories are on this.
At a recent meeting with the provinces and territories held by the Minister of Justice, the attorneys general of two of the most populace provinces, namely Ontario and Quebec, both said that they had experienced no problems with religious freedom despite thousands of same sex marriage ceremonies.
However, many provinces and territories have provided additional protections by amending their laws to add specific protections for religious freedom. For example, Quebec has had specific protection for religious officials who refuse to marry a couple since the 1960s. Others already exempt religious organizations from their human rights codes.
The Minister of Justice has encouraged the provinces and territories to look again to ensure that religious freedom is protected in all their laws, as the federal government is doing. In reference to specific cases that may come before the human rights tribunals, he expressed the view that there could be some accommodation of religious freedom under most circumstances.
Indeed many of the cases brought forward by the members opposite to demonstrate that religious freedom is at risk have nothing to do with marriage. The cases are about protection from discrimination in the provision of services to the general public.
This is not a new issue. Provincial human rights codes add sexual orientation to their lists of prohibited grounds of discrimination, starting in 1976. Where a religious group has a clear policy about who it will rent out its space to, for example, parishioners or only organizations that are religious in nature, there has been no problem in the past. However, yes, where an organization of any kind offers its services to the general public, it must offer its services to all the general public and not discriminate on any basis, be it racial grounds or because of sexual orientation. This is a completely separate issue from whether the bill will affect the guarantee of religious freedom found in the charter.
Where a charter case has looked at the balance between equality rights and religious freedom, religious freedom has been protected. For example, in the recent Supreme Court of Canada case of Trinity Western, if a specific provincial human rights tribunal order does not respect freedom of religion, the charter can be used to challenge that order, as was the case, for example, in the Brockie case where the court amended the original tribunal order to protect religious freedom.
The Supreme Court of Canada specifically added in its recent decision in the marriage reference a reminder that provincial human rights codes should also be interpreted to protect the religious freedom. Previous court decisions at the lower levels on same sex marriage also indicated clearly their decisions could not have an impact on religious marriages, but only on civil marriage. Somehow this will not be enough for some people. They seem to fear that the Supreme Court could change its mind at some unspecified time in the future and religious freedom is slowly being eroded.
Yet after all these changes to the civil law of marriage, the different religious faiths have remained free to maintain their traditional religious practices and most have done so. Freedom of religion has a long history in Canada prior to the charter. That is one of the reasons it was added as a fundamental freedom to the charter.
Religious freedom has maintained and will continue to maintain its strength, as exhibited by the reference decision. The Prime Minister already has already that it is only where religious freedom would be threatened that he would consider using the notwithstanding clause. The government will uphold religious freedom and religious freedom of all major religious groups, meaning we have no more business telling the Catholic Church that it must marry persons of the same sex than we have telling the United Church that it cannot do so.
This act defines civil marriage. It does not change holy matrimony.