The Supremes Speak

[bcholmes]

While people seem to be touting this as a victory, it actually looks pretty wishy-washy. They haven't said that refusing to allow same-sex couples to marry is unconstitutional. The Globe (which may require subscription) has a pretty good summary.

Background: Chétien asked the Supreme Court three questions (which Paul Martin later amended to four) to figure out how the government should proceed with respect to same-sex marriage. The Supreme Court essentially said, "here are some lines that you can't cross (like you can't force Catholic churches to perform same-sex marriages) but Parliament should be setting policy."

The four questions are:

1. Does the federal government have the authority to define marriage?
   (Full question: 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 so, is our proposed bill constitutional?
   (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. Can religious groups constitutionally refuse to perform same-sex marriage?
   (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 is constitutional to consider marriage a union of one man and one woman?
   (Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?)

The answers appear to be:

1. Yes and no
2. Yes
3. Yes
4. We ain't sayin'