Re Same-Sex Marriage
| Reference Re Same-Sex Marriage | |
|---|---|
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| Hearing: October 6–7, 2004 Judgment: December 9, 2004 |
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| Citations | [2004] 3 S.C.R. 698; 2004 SCC 79 (CanLII) |
| Docket No. | 29866 |
| Holding | |
| Parliament has the authority to legislate in regard to same-sex marriage. | |
| Court Membership | |
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Chief Justice: Beverley McLachlin Puisne Justices: John C. Major, Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron |
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| Reasons given | |
| Unanimous reasons by | The Court |
Reference Re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79, was a reference question to the Supreme Court of Canada regarding the constitutional validity of same-sex marriage in Canada. The ruling was announced December 2004, following arguments made two months prior.
Prior to this case the issue regarding the constitutional validity of same-sex marriage had been considered by several of the provinces' appellate courts, all of them holding that it was constitutionally valid. In response to this, the Government of Canada submitted three questions to the Supreme Court regarding the validity of the proposed same-sex marriage legislation.
Later, an additional question was added:
The court responded to the questions as such:
The Court began by considering the argument that the questions are not justiciable (i.e. the court did not have the authority to answer) based on it being a political question. The Court resolutely dismissed this claim for the reasons it gave in the Quebec Secession Reference.
The first question required the court to determine which head of power the law falls under. It was clearly determined that the pith and substance of the law was federal as it concerned marriage which is in the absolute federal jurisdiction under section 91(26) of the Constitution Act, 1867.
The Court then considered the impact of the common law definition of marriage on the new law. The applicable definition was from Hyde v. Hyde (1866) a polygamy case where Lord Penzance stated:
What, then, is the nature of this institution as understood in Christendom?...If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
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