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Reference Case SCC 79: Same-Sex Marriage . Brendan, Nathan, Daniel . Bill (C-38). Under two operative sections: Marriage, for civil purposes, is the lawful union of  two persons  to the exclusion of all others.

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Reference Case SCC 79: Same-Sex Marriage

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Reference case scc 79 same sex marriage

Reference Case SCC 79:Same-Sex Marriage

Brendan, Nathan, Daniel


Bill c 38

Bill (C-38)

Under two operative sections:

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

  • 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 questions

The Questions

Asked by the Governor in Council, directed at the courts:

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?

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? If not, in what particular or particulars, and to what extent?

3. 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?

4. 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

2004 SCC 79 (CanLII)


Question 1

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?”

Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?

Decisions:

Sections 1: Yes

Section 2: No


Question 2

Question 2

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? If not, in what particular or particulars, and to what extent?

Is section 1 of the proposed legislation, which extends capacity to marry to persons of the same-sex, consistent with the Charter?

Decisions:

Yes


Question 3

Question 3

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?

Decisions:

Yes


Question 4

Question 4

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?

Decisions:

N/A


Role of the charter

Role of the Charter

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

  • Everyone has the following fundamental freedoms:

  • freedom of conscience and religion;

  • freedom of thought, belief, opinion and expression

  • freedom of peaceful assembly; and

  • freedom of association.


Interveners

Interveners


Canadian human rights commission

Canadian Human Rights Commission

  • Promoting the core principle of equal opportunity and works to prevent and remedy discrimination in Canada by:

  • promoting the development of human rights cultures; 

  • understanding human rights through research and policy development; 

  • protecting human rights through effective case and complaint management; and 

  • Representing the public interest to advance human rights for all Canadians.


Canadian human rights commission1

Canadian Human Rights Commission

  • The CHRC has a high interest in matters concerning equality rights and commonly serves as interveners in cases pertaining to human rights issues.

  • Here are all of the 11 grounds protected by the CHRA and enforced by the CHRC

  • race 

  • national or ethnic origin 

  • colour 

  • religion 

  • age 

  • sex 

  • sexual orientation 

  • marital status 

  • family status 

  • disability 

  • a conviction for which a pardon has been granted or a record suspended.


Canadian human rights commission2

Canadian Human Rights Commission

“Sexual orientation should not be the basis for denying employment, services or benefits to individuals”.


United church of canada

United Church of Canada

“Theologically and liturgically, the United Church understands both opposite-sex and same-sex couples as sharing the same human dignity of being made in the image of God.  There is therefore no theological impediment that would prevent same-sex couples from participating in this union, which is one of the fullest expressions of the covenant between God and humanity.  To the contrary, excluding same-sex couples from this expression of the covenant relationship undermines their human basic dignity.”

-UCC Factum Excerpt


United church of canada1

United Church of Canada


Seventh day adventist church

Seventh-Day Adventist Church

“Homosexuality is a manifestation of the disturbance and brokenness in human inclinations and relations caused by the entrance of sin into the world. While everyone is subject to fallen human nature, "we also believe that by God's grace and through the encouragement of the community of faith, an individual may live in harmony with the principles of God's Word”

“God's Word that transcends time and culture does not permit a homosexual lifestyle. The Bible's opposition to same-sex unions/marriage is anchored in God's plan at creation for marriage, in divine, and in Jesus' explicit confirmation of a permanent, monogamous, and heterosexual marriage relationship”

-SDAC Position paper on same-sex marriage


Seventh day adventist church1

Seventh-Day Adventist Church


Reference case scc 79 same sex marriage1

Reference Case SCC 79:Same-Sex Marriage

Brendan, Nathan, Daniel


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