Canada: The Constitution and same-sex marriage Peter W. Hogg* Equality rights for same-sex couples—Reference Re Same-Sex Marriage—Civil Marriage Act expanding definition of marriage to include same-sex couples 1.

Civil Marriage Act The Parliament of Canada, on July 20, 2005, enacted the Civil Marriage Act,1 which legalizes same-sex marriage. Canada thus became the fourth country to take that step. Spain had legalized same-sex marriage less than a month earlier,2 following the Netherlands (2001) and Belgium (2003). The act provides, under section 2, that ‘‘Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.’’ It is the reference to ‘‘two persons,’’ replacing ‘‘one man and one woman’’ in the former definition, that opens up marriage to persons of the same sex. The enactment of this law was highly controversial. Yet, despite its introduction in to Parliament as a bill of the Liberal Party’s minority government and despite the vote being free—the members of the Liberal caucus were liberated from their normal obligation to support government measures—the Civil Marriage Bill passed in the House of Commons by a solid majority, thanks to the support of members from other parties. The bill was then passed by the Senate and received royal assent by the Governor General on July 20, 2005. It is clear that the Civil Marriage Act is legally valid, because the Government of Canada obtained advance clearance regarding its constitutionality from the Supreme Court of Canada in Re Same-Sex Marriage (2004).3 The Government of Canada had in 2003 directed a ‘‘reference’’ to the Supreme Court of Canada, asking the Court for an advisory opinion as to whether the Parliament of Canada, which has legislative authority over ‘‘marriage,’’4 had the power to legalize same-sex marriage. The Court answered yes, thus paving the way for the new law. My purpose in this article is to explain the developments in Canadian constitutional law that made this decision, and the legislative step that followed it, more or less inevitable.

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