Table of Content
Part A: Narrative Chronology of the Policy Process
Part B: Stakeholder Profiles
Part C: International Comparison
Part D: Discourse Analysis/ Conclusion
Part E: Works Cited
Part F: Works Consulted
Part A: Narrative Chronology of the Policy of Same Sex Marriage
May 1999: The Supreme Court of Canada in Ontario publishes a landmark decision: same-sex couples should has equal rights treatment under the constitution of Canada, and challenges the opposite-sex definition of “spouse” in a section of the province’s Family Law Act (Library Parliament, 2010, p 6).
2000: The Supreme Court of Canada enacts Bill C-23, which “advocates for extending the marriage option to same-sex couples” and renew equality rights constitution (Library Parliament, 2010, p.12).
January 14, 2001: After the Supreme Court ruling in support of same-sex marriage in Canada, the first legal same-sex marriage wedding was performed at the Metropolitan Community Church of Toronto, Ontario. Kevin Bourassa and Joe Varnell became the first legalized same-sex couples in Canada (Elliott, 2004, p.591).
June 2002: Poll by Strategic Counsel and Focus on Family Canada asked the question: “whether homosexual couples should be allowed to become legally married in Canada or not, Do you, personally, believe that homosexual couples should or should not be allowed to marry? … 46% of Canadians favoured same-sex marriage; 44% disagreed” (Robinson, 2005).
June 10 2003: Current Senator Hon. Gerry St. Germain announced and determined the decision from the Ontario Court of Appeal that “same-sex marriages should be legal under the Canadian Charter of Rights and Freedoms and called upon Parliament to change the definition of marriage accordingly” (Official Report (Hansard), 2003).
May, 2003: The British Columbia Court of Appeal reversed the Supreme Court judgment and upheld the common-law rule barring same-sex marriage (Library of Parliament, 2005).
July 8, 2003: B.C. Court of Appeal passed the Supreme Court judgment and became “the second province to end marriage discrimination against gay and lesbian couples” in Canada (Equal Marriage, 2003, para1).
March 16, 2004: Quebec Court of Appeal decided to enable “same-sex couples to marry legally in the province with immediate effect”. Later on, in the same year, provinces of Yukon, Manitoba, Nova Scotia, Saskatchewan, Newfoundland and Labrador also subsequently approved the judgment from the Supreme Court in July, September, November and December, respectively. (Library Parliament, 2010, p 14)
June 23, 2005: New Brunswick became the eighth province to legalize same-sex marriage when a Court of Queen’s Bench Charter ruling redefined civil marriage in the province in gender neutral terms. (Library of Parliament, 2005)
July 20, 2005: After both House of Commons and Senate passed Bill C-38 to the Canadian Royal Assent, The Civil Marriage Act Bill C-38 became a law in Canada. It represented Same-Sex marriage ( The rights in Canadian provinces and Territories) in Canada, which included the last four provinces and shows that the court in provinces of Alberta, Prince Edward Island, Nunavut territory, and the Northwest Territories also passed the same judgment regarding same-sex marriage. (Library of Parliament, 2005)
December 7, 2006: The House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a Conservative government motion to examine the matter again. The result for this vote is that “The motion had asked the government to introduce legislation to restore the traditional definition of marriage without affecting civil unions and while respecting existing same-sex marriages”. This was the third vote for supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years (MPs defeat bid to reopen same-sex marriage debate, 2006).
Part B: Stakeholder Profiles
Bill C-38 is also known as “The Civil Marriage Act”. The bill itself intends to legalize same-sex marriage in Canada. Before Bill C-38 was officially passed by the House of Commons and the Senate on June 20, 2005 (Library of Parliament, 2005), there were 21 committee meetings that were held by the House of Commons Committee to discuss the legitimacy of Bill C-38. Besides the members of parliaments, various stakeholders were also invited to join the debates. The table below lists all the stakeholders that have presented in the committee meetings:
| SECTORS | STAKEHOLDERS |
| GOVERNMENT | – Department of justice
– Law Commission of Canada |
| CORPORATE | N/A |
| NGOS | – Egale Canada
– Canadians for Equal Marriage – Canadian Conference of Catholic Bishops – Christian Legal Fellowship – Jubilee Centre for Christian Social Action – Catholic Civil Rights League – Canadian Labour Congress – Parents, Families and Friends of Lesbian and Gay Persons (Canada) – World Sikh Organization of Canada – The United Church of Canada – REAL Women of Canada – Canadian Bar Association – Islamic Council of Imams-Canada – McGill Centre for Medicine, Ethics and Law – Canadian Islamic Congress – Canadian Psychological Association – Pentecostal Assemblies of Canada – Chinese Canadian National Council – Canadian Unitarian Council – Roman Catholic Diocese of Calgary – Vaad Harabbonim of Toronto – Coalition québécoise pour la reconnaissance des conjoints et conjointes de même sexe – Coalition of Canadian Liberal Rabbis – Defend Marriage Coalition – Barreau du Québec – Home School Legal Defence Association – Christian Reformed Churchs in Canada – Ontario Gurudwara’s Committee – Focus on the Family Canada – Centre for Cultural Renewal – Crossroads Christian Communications |
| OTHERS OR UNKNOWN | Individuals: Stanley Hartt (Meeting 20); Hugo Cyr, Professor, Faculté de science politique et de droit, Université du Québec à Montréal and Bruce Ryder, Professor, Osgoode Hall Law School (meeting 19) ; Gerald Chipeur and Bill Johnstone (Meeting 18) ; Kevin Kisilowsky; David Novak, University of Toronto (Meeting 17); Bruce Goertzen and Katherine K. Young, Professor, McGill University (Meeting 16); Peter D. Lauwers (Meeting 15); Diz Dichmont, Doug Farrow, Ted Morton and Cecil Patey (Meeting 14); Joseph Ben-Ami (Meeting 13); Alan Brudner; Daniel Cere, Professor, McGill University (Meeting 12) ; David M. Brown, Barrister and Solicitor(Meeting 11); |
The stakeholders can be organized into three different groups – Government, NGOs, and Individuals. (Legislative Committee on Bill C-38, 2004 – 2005).
Government
The governmental stakeholders, Department of justice and the Law Commission of Canada mainly provided statistical data regarding marriage, as well as identify the meaning of “marriage” from a legal point of view.
The goals of the Department of Justice are to approach and balance the Canadian justice systems as well as legally represent the Canadian government during the debates. (Department of Justice, 2011). In meeting 3, the Senior Counsel of Department of Justice, Lisa Hitch noted that the statistics that are tracked by the province annually shows that there are over 3,000 homosexual couples have been married in Canada from court decisions. Among them, 65% to 70% were Canadians. The specific statistics are clear to show that same-sex marriage has become more and more common in Canada. (Legislative Committee on Bill C-38, May 12 2005).
Later on, during the 9th meeting on June 1, 2005, the President of Law Commission of Canada, Nathalie Des Rosier, presented an important summary from a report called “Beyond Conjugality”. The report aims to “to determine the issues of concern to Canadian society, and the question of the diversity of family structures in relation to the legal framework emerged at that time”. In short, Nathalie, acting on behave of the Law Commission of Canada, suggested that “In fact, the idea was to extend access to marriage to same-sex spouses. This solution, which I’m submitting to you, is still the best”. (Legislative Committee on Bill C-38, June 1 2005).
In the 21st meeting, Lisa Hitch from the Department of Justice defined the meaning of marriage that “Marriage is for civil union of two persons to exclusion of all others”, which can protect people who believe that marriage has an opposite–sex requirement. Also, Hitch explained how ‘incapacity’ for marriage should be interpreted. (Legislative Committee on Bill C-38, June 15 2005).
NGOs
On the other hand, some non-governmental, nonprofit organizations have also appeared and presented their positions regarding Bill C-38 in the committee meetings. There were a total of 31 NGO stakeholders and each of them provided different opinions regarding Bill C-38.
For example, Crossroads Christian Communications founder David Mainse and Lawyer Ian Purvis discussed the religious perspective of Bill C-38. Finally, they agreed with the position of Bill C-38 and think that “in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex” (Legislative Committee on Bill C-38, June 14 2005).
Furthermore, the nation-wide organization Parents, Families and Friends of Lesbian and Gay Persons (Canada) also presented in committee meetings. The mission of this organization is to provide support, education, and resources to individuals or families that dealing with sexual orientation and gender identity issues. Bill Siksay, a member of the PFLAG described his personal experiences in the meeting and advocated in favour for same-sex marriage. (Legislative Committee on Bill C-38, May 31 2005).
Additionally, a member of the National Executive of the Chinese Canadian National Council and President of its Ottawa chapter, Jonas Ma, noted that “the Chinese Canadian National Council is a national non-profit organization … to promote the equality rights and full participation of Chinese Canadians in all aspects of Canadian society”. Representing the Chinese Canadian National Council in the committee meeting, Ma stated that the “Council has worked towards the protection of equality rights for all Canadians, including different minority groups such as the gay, lesbian, bisexual, and transgendered communities. There are also gay, lesbian, bisexual, and transgendered Chinese Canadians. Over the past decades, the council has worked with them, their families, and other supportive groups to promote the understandings and to fight against to the homophobia within our community and in the general public”. Hence, this statement clearly shows that the Chinese Canadian National Council is in support for Bill C-38. (Legislative Committee on Bill C-38, June 6 2005)
Others/ Individuals
Besides government and NGOs, various individuals, often experts in the field of law and politics, were invited to the debate. Most of these individuals are professors from various universities, such as Université du Québec à Montréal, Osgoode Hall Law School, and McGill University. For example, in meeting 19, Professor Hugo Cyr from the Université du Québec à Montréal, representing 133 of his colleagues, wrote a letter to the Hon. Stephen Harper, Leader of the Opposition to Bill C-38. In the letter Mr. Hugo Cyr used engage tone to refute the leader of the Opposition’s opinion that “intends to propose amendments to limit the definition of marriage to only opposite-sex couples”. As an expert in Canadian law and political system, Hugo Cyr, also acting on behave of 133 of his colleagues, said to Steven Harper that, “As law professors, we strenuously disagree. You must be completely honest with Canadians about the unconstitutionality of your proposal, which will only guarantee that same-sex marriage ends up back before the courts as opposed to being resolved by Parliament”. He also commented that in British Columbia, Saskatchewan, Manitoba, Newfoundland, Ontario, Quebec, Nova Scotia and the Yukon are now unanimously of the view that the definition of marriage that excludes same-sex couples is unconstitutional. (Legislative Committee on Bill C-38, June 6 2005).
After that, the Osgoode Hall Law School professor Bruce Ryder also supported Bill C-38, and explained how the bill fulfills Parliament’s constitutional responsibilities to respect equality rights and to render uniform the definitions of marriage across the country and how the bill poses no threat to religions. (Legislative Committee on Bill C-38, June 6 2005).
Also, Professor Katherine Young from McGill University proposed amendments to Bill C-38. She discussed an article she published in The Globe and Mail, which “is relevant to her discussion of academic freedom between same sex issues”. Moreover, she redefined the meanings of marriage to include same-sex couples. Young also commented that, “Modern western democracies have recognized that children are the most vulnerable group of all because they lack the maturity to give their informed consent” (Legislative Committee on Bill C-38, June 13 2005). Based on this view, with the new marriage legislation being proposed, people not only need to study about the longitudinal and the generations, but also compared with the children born through reproductive technologies or reared by two married social parents of the same sex with children reared by their married biological parents.
Beside those stakeholders, there is some other stakeholder Groups that did not make presentations during the legislative committee on Bill C-38, but have relevant interests in policy, such as HEU Lesbian and Gay Standing Committee and Service Canada. For HEU Lesbian and Gay Standing Committee, it is a hospital employees’ union organization, that “works to improve and enhance awareness of lesbian, gay, bisexual, transgendered, two-spirited, intersex, queer and questioning members of union [, and] provides a networking support system to guarantee HEU members have a safe, positive and harassment-free workplace” (Pink Triangle Standing Committee).
On the other hand, Service Canada is a governmental body that is responsible for issuing marriage certificates within Canada (Service Canada, 2011). With the allowances of same-sex couples, Service Canada will have to adjust its marriage certificate requirements to reflect the change that was bringing upon by Bill C-38.
Part C: International Comparison between Canada and United States
Bill C-38 was proclaimed into law by the Canadian Royal Assent in July 20, 2005, which means that the same-sex marriage is now allowed by legislation. How about our neighbor country, the United States? Does the US have the same policy as Canada? What law does the US government have for gays and lesbians? Comparing the US with Canada, both of Canada and the United States are located in the North America and their governments are all based on a democratic system, but they hold different positions while they are facing the same-sex marriage issues. Therefore, the international Comparison section will examines the similarities and differences between the treatments of same-sex couples in Canada and the United States.
Firstly, Bill C-38 redefined the definition of “marriage” with the inclusions of same-sex partners in Canada. In contrast, the Defense of Marriage Act in the United States holds the opposite opinions to Bill C-38 (Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 2012, para 7). Moreover, homosexual marriage in Canada is legally allowed nationwide. Differently, only a small number of states in America currently allow same-sex marriage, such as New York City, Connecticut, Iowa, New Hampshire, Vermont and Washington, D.C. (Same-Sex Marriage, Civil Unions, and Domestic Partnerships, 2012, para 2).
Secondly, the scope of same-ex marriage is different between Canada and the United States. In Canada, on January 14, 2001, the first legal same-sex marriage wedding was held at the Metropolitan Community Church of Toronto after an Ontario Court of Appeal’s ruling that decided to legalize same-sex marriage within the Ontario province (Douglas, 2004, p.591). Afterwards, other provinces like British Columbia, Quebec, and Yukon, also legalized homosexual marriage in each of their respective provinces. Even before Bill C-38 was officially passed, the trend was that the same-sex marriages were becoming legal throughout the whole Canada. However, in the United States, Massachusetts Supreme Court ruled that same-sex marriage becomes legal in 2004 because it was required under the equal protection clause of the state’s Constitution and Vermont became the first state in the nation to legalize same sex-marriage through legislative action without a judicial order to do so (The Vermont Legislature, 2002).
Part D: Discourse Analysis
Same-sex marriage has always been a controversial topic in Canada. The debates surrounding Bill C-38 highlights the fact that each major political party has very distinctive values and beliefs when compared with each other. On one side, we have the Liberal Party of Canada, which is the one responsible for introduction Bill C-38 legislation. In order to gain more supports, the Liberals have teamed up with the National Democratic Party (NDP) and the Bloc Quebecois (Bloc) to fight for the passing of Bill C-38. On the other side is the Conservative Party of Canada (Tories), the major opponent to Bill C-38 and its supporters (Political Parties of Canada 2012).Therefore, the standoff can be divided as such:
Proponent(s): Most of the members of the Liberals, NDP, and Bloc Quebecois
Opponent(s): Most of members of the Tories
The Liberals, NDP, and Bloc are all left-winged parties in Canada, and therefore they are more willing to “give up” traditional Christian values that used to dominates Western cultures and support individual freedom and choices.
The Conservatives, as the name suggests, has a strong respect for traditional values, in particular, Christian values or beliefs. These values are conflicting with Bill C-38 because gay rights are often not accepted in traditional Christian culture.
The Liberals, NDP, and Bloc support Bill C-38 because they put more emphasis on individual rights. They believe that all individuals should have the right to make their own choices, and everyone in the society should be treated equally, regardless of their sex-preferences. Therefore, they support that homosexual couples should have the same rights and privileges as heterosexual couples.
The Conservatives believe that traditional Christian values should be preserved in society. As same-sex marriage was never acceptable in the past, therefore same-sex marriage should not be acceptable in present time as well.
Under these two very different perspectives, the debates for the passing of Bill C-38 are very intense. On one hand, withholding traditional values as morally acceptable guidelines is important; on the other hand, respecting equality and individual freedom is also essential in Canada. For the Liberals, NDP, the Bloc, and other supporters of Bill C-38, the Civil Marriage Act represents an achievement in the movement for individual freedom and equality as guaranteed by the Canadian Charter of Rights and Freedoms. For the Conservatives and other opponents of Bill C-38, the Civil Marriage Act represents a deviation from the traditional morals that Canada was founded on. While Bill C-38 has officially passed by the Parliament, the debates regarding the rights for gays, lesbians, and transvestites will carry on for many years. Steven Harper, the leader of the Conservatives in 2005, even promised to the media that he will revisit the Civil Marriage Act in the near future (Same-sex marriage law passes 158-133, 2005).
Conclusion
To sum up, the chronology of the policy, The Civil Marriage Act of Bill-C38, shows the process of law making and the reason Bill C-38 was officially passed by the House of Commons, the Senate and the Royal Assents. By review the presentations from the stakeholders in the community meetings, each stakeholder presented their takes on the issue to the committee, which contributed to the overall democratic legislative process for Bill C-38. Comparing the current same-sex marriage policy in Canada and United States, Canadian and United States’ governments recognize same-sex marriage differently. With the passing of Bill C-38, the Liberals and the Conservative party hold very distinctive opinions on Bill C-38. In the end, after Bill C-38 was passed, the same-sex marriage is now legally recognized nationally in Canada.
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