(As published in the Toronto Star)
When the House of Commons passed the Civil Marriage Act 10 years ago this week, Canada was only the fourth country in the world – and the first outside Europe – to legalize same-sex marriage. Now, with last week’s Supreme Court ruling in the United States, and with the successful referendum in Ireland this spring, same-sex marriage is recognized in more than 20 countries, and that number will continue to grow.
As Minister of Justice in 2005, I was proud to introduce the Civil Marriage Act, legislation anchored in two fundamental Charter principles: the right of every Canadian to equality without discrimination, and the right to religious freedom. It protected the rights of same-sex couples without removing rights from anyone else, and without subordinating one right to another.
For three reasons in particular, it is remarkable to think back to the debate that was taking place in Canada on this issue a decade ago.
First, the debate’s occasional acrimony can be difficult to remember or fathom today. Indeed, I said at the time that if we enact this legislation, we will see in 10 years that the sky will not fall.
Second, the debate was a unique and compelling constitutional conversation. The legislation was the result of a four-way conversation between Parliament, the people, the courts and the government.
It was a parliamentary initiative – the Charter of Rights and Freedoms – that enshrined in our Constitution the rights to equality and to freedom of religion, and that vested the courts with the authority to protect those rights. It was individuals and groups who exercised the remedies guaranteed them by the Charter to assert their rights, successfully arguing against the opposite-sex restriction on civil marriage before courts in eight provinces and one territory. And it was the government that referred the matter to the Supreme Court for an advisory opinion on the constitutionality of same-sex marriage.
All of which leads to the third remarkable feature of the same-sex marriage debate: it was a wide-ranging, inclusive – if heated – national discussion on an issue of national importance. Such discussions are remarkable today for their rarity.
It was, for example, out of respect for the plurality of options being argued that, following the lower and appellate court rulings, I asked the Supreme Court for a decision not only on the constitutionality of same-sex marriage, but also on the possibility of civil unions as a valid option.
Once the court ruled unanimously that same-sex marriage was not only permitted by the Charter, but in fact flowed from it, and that civil unions would not suffice, I tabled legislation that would receive extensive scrutiny in the House of Commons, in the Senate, and throughout Canada.
Fully 28 groups and individuals argued the full range of opinions on this matter before the Supreme Court. A special committee struck by the House of Commons to examine the Civil Marriage Act met 21 times and heard from 72 witnesses, including representatives of 35 different organizations.
The Senate committee studying the bill held an additional six meetings and heard from 33 witnesses.
Moreover, the Canadian public at large was very much involved. Canadians considered the matter from all angles in their communities, voiced support and raised concerns with public officials, and attended demonstrations both in favour of and against the legislation.
By the time the Civil Marriage Act took effect in July 2005, all aspects of the issue had been debated in depth and in public. Generally, this national conversation was intense but respectful, and undeniably democratic.
With regard to matters of such significance, and which give rise to such passions, this kind of inclusive and engaged process is essential not only to ensure that, in the end, the chosen legislative approach is thoroughly vetted – and an appropriate balance achieved – but also to help bestow democratic legitimacy upon the legislation, even among those Canadians who disagree with it.
Regrettably, not all major public policy issues in Canada are addressed in this way. Too often, as we have seen recently, bills are rushed through Parliament with limited debate, critics are demeaned and attacked, and certain significant measures are buried in omnibus legislation.
It is all the more important, therefore, to mark the 10-year anniversary of full marriage equality in this country both by celebrating this instance of Canadian leadership in matters of equality, freedom, and justice and by remembering the virtues of debating serious issues in a manner becoming of a vibrant and open democracy.