The Civil Marriage Act (
French: Loi sur le mariage civil) is a federal statute legalizing
same-sex marriage across Canada. At the time it became law, same-sex marriage had already been legalized by court decisions in all Canadian jurisdictions except
Alberta,
Prince Edward Island, the
Northwest Territories, and
Nunavut.
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.
Outline of the Act
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.[1]
The
short title (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.
As a government
bill, C-38 represented the official position of
Paul Martin's
Liberal government and the
cabinet were thus bound to vote in its favour. Liberal
backbenchers and members of the
Conservative Party and
Bloc Québécois had a free vote. In accordance with its party policy on
LGBT rights, the
New Democratic Party (NDP)
whipped its members in favour.
Bev Desjarlais defied the whip and was removed from her critic position. (She was not nominated for the next election by her
riding association, and subsequently chose to sit as an independent for the remainder of the session.) Conservatives tended to vote against the Act, while Bloquistes tended to vote in favour. At least two cabinet ministers stepped down to vote against the bill.
Joe Comuzzi resigned just hours before the final vote on the Act, and Martin lamented his leaving. As expected, Comuzzi voted against the Act.
The composition of Parliament was such that the prevailing opinion among political commentators indicated the
bill would likely pass the House (see a detailed analysis at
members of the 38th Canadian Parliament and same-sex marriage). Although there was some challenge to it, this opinion was verified with a 158–133 vote at third reading in the
House of Commons on June 28. The bill passed in the
Senate on July 19, with a 47–21 vote, with three abstentions.
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 three abstentions and received
royal assent (thereby becoming law) on July 20.
A summary of the legislation's progress is given below.[2]
February 8, 2005 – The
Calgary-based Canada Family Action Coalition[3] seeks to boycott
Famous Players Theatres because of a ten-second ad that urged moviegoers to contact their
MPs to say they support same-sex marriage. They refused to buy an ad when they learn it was paid for by
Salah Bachir on behalf of
Canadians for Equal Marriage.[failed verification]
May 4, 2005 – Bill C-38 passes
second reading in the House of Commons with a final vote of 164–137 for.
May 5, 2005 – Bill C-38 has its 1st special legislative committee meeting to study the bill, to listen from witnesses both against and for the bill, as well as propose amendments.
May 19, 2005 – Paul Martin's
minority government survives a close (153–152)
motion of confidence; with the Liberals still in power and Stephen Harper's Conservatives hinting that they'll back off future votes of non-confidence. Bill C-38 showed a strong promise of being made law (after a third reading and vote) sometime before
Parliament adjourns for the summer as the Prime Minister indicated MPs may sit in the summer, and the Senate would deal with the bill in July.
June 15, 2005 – Paul Martin's
minority government survives no fewer than 16 confidence votes in the House of Commons. A defeat on any of them would have forced an election. But in the end, there was no repeat of the single-vote squeaker win of May 19.
June 16, 2005 – The special legislative committee studying C-38 reported back to the House of Commons, with an amendment designed to help further protect religious officials who are against performing a same-sex marriage.
June 23, 2005 – MPs of the Liberal, Bloc and NDP parties vote to extend the sitting time through the following week to pass Bill C-38 in third and final reading. The same night, the budget bill (Bill C-48) passes after a late night snap vote is called, ending the threat by Bill C-38 opponents to derail the bill by defeating the budget thereby
bringing down the government and forcing a general election.
June 27, 2005 – A late night motion for
time allocation is passed 163 to 106 limiting further debate on Bill C-38 to nine hours: one before concurrence on the report and eight thereafter. The sitting, which extended until the early morning hours of the next day, ends with a series of votes on proposed amendments in which nine amendments proposed by same-sex marriage opponents are defeated. The report is then concurred in. This closes the amendment stage and frees the House to begin final debate on
third reading.
June 28, 2005 – Bill C-38 passes its final reading a few minutes after 21:00 EST, 158–133, through the House of Commons. Liberal cabinet ministers were ordered by Prime Minister
Paul Martin to vote for the legislation, while it remained a free vote for Liberal backbench MPs.
Joe Comuzzi, a traditional opponent of same-sex marriage, resigned from Cabinet and voted against the bill. Almost all
New Democrat and Bloc Québécois MPs voted in favour of the bill, while the Conservative MPs were virtually unanimous in voting against it (three voted in favour). Conservative Leader
Stephen Harper made a controversial claim that "the law lacks legitimacy because it passed [only] with the support of the
separatist Bloc party." NDP MP
Bev Desjarlais voted against the bill and was stripped of her position in the NDP's
shadow cabinet as
Transport and the
Canadian Wheat Board critic. She later lost her
riding association's nomination for the riding of
Churchill. The Bloc and the Conservatives declared C-38 a free vote.
Senate
June 29, 2005 –
First reading of Bill C-38 occurred in the
Senate.[5] Debate on
second reading was then scheduled for July 4 and the forthcoming days.
July 4, 2005 – The debate on second reading begins with Senator
Serge Joyal as mover of the bill. Senator
Gerry St. Germain argues against the bill and Senator
Jack Austin concludes the first day of debate arguing for the bill's adoption.[6] The government introduces a
notice of motion for
time allocation that would restrict debate on the bill to six hours.[7] Debate on second reading is to continue the next day.
July 5, 2005 – Debate on second reading continued, although the actual debate occurred only for a few minutes. This was then followed by a long and heated debate on whether to invoke
closure (rather than on the main bill).[8] Closure was invoked by a margin of 40 to 17 with 2 abstentions.[9]
July 6, 2005 – The Senate passed Bill C-38 on second reading by a margin of 43 to 12. The Bill went to the Committee on Legal and Constitutional Affairs.[10]
July 14, 2005 – The Committee on Legal and Constitutional Affairs finished seeing witnesses, and performed a
clause-by-clause consideration.[11]
July 18, 2005 – The Committee reported back to the Senate without amendment, and the final debate was then scheduled to start the next day. Unanimous consent required to proceed directly to a vote on third reading was denied.[12]
July 19, 2005 – Debate on third reading of Bill C-38 began in the Senate. An attempt to delay third reading of the bill by six months was defeated 19 to 52, and an amendment to the bill that would have declared "traditional marriage" as being between a man and a woman and "civil marriage" as between two persons failed, 24 to 46, with 4 abstentions. Shortly after 11 p.m., the Senate passed Bill C-38 on third and final reading by a margin of 47 to 21, with 3 abstentions.[13]