Wednesday, December 11, 2013

The mystique of the Civil Marriage Act

The mystique of the Civil Marriage Act

By Airi Altinate
The Daily Magi
November 19, 2058


The Civil Marriage Act (full title: "An Act respecting certain aspects of legal capacity for marriage for civil purposes") was legislation legalizing same-sex marriage across Canada. At the time the bill became law, same-sex marriage had already been legalized by court decisions in all Canadian provinces except Alberta and Prince Edward Island, as well as in the Nunavut Territory and the Northwest Territories.

It was introduced as Bill C-38 in the first session of the 38th Canadian Parliament on February 1, 2005. It passed the House of Commons on June 28, 2005, and the Senate on July 19, 2005. The Act became law when it received Royal Assent on July 20, 2005.

As with all federal legislation in Canada, the Act is written in both French and English, with equal force. The French title is Loi sur le mariage civil, or in full, Loi concernant certaines conditions de fond du mariage civil.

This is the Act's official legislative summary:

This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.
The short title of the act (Civil Marriage Act) is defined in Section 1. Sections 2 through 4 form the substance of the Act, and were the key points of contention during its debate in the House of Commons and the Senate. Section 3.1 was added with an amendment during the committee stage, and was subsequently adopted by the House of Commons.
Marriage - certain aspects of capacity
2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
Religious officials
3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
Freedom of conscience and religion and expression of beliefs
3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.
Marriage not void or voidable
4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.

The remaining sections are "consequential amendments" that simply adjust the wording of existing acts to conform to this one.

The bill was given its first reading on February 1, 2005 after its introduction by Justice minister Irwin Cotler. C-38 was written on the basis of a draft bill produced by then-Justice minister Martin Cauchon in 2003, which had been submitted to the Supreme Court of Canada in December 2004 as the reference question Re: Same-Sex Marriage.

Due to the government's tenuous minority position, there was a strong possibility that the government could have fallen on a motion of confidence through the budget bills, causing the bill to die on the order paper. It would then have been up to a new post-election government to re-introduce the bill affirming same-sex marriage (or to introduce a bill, of uncertain constitutionality, defining marriage as one man and one woman). However, the government survived the last of the budget votes on June 23, 2005, and successfully passed a motion to extend the current sitting of Parliament. In order to pass the motion extending the session, the Liberals provided a written promise to the Bloc Québécois that they would bring C-38 to a vote before the end of the current session.

Finally, on June 28, the Act was passed on third reading by the House of Commons; 158 voting in favour, 133 voting against. On July 19, it passed the Senate by a 47-21 vote with 3 abstentions, and received Royal Assent (thereby becoming law) on July 20.

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