What was the Civil Marriage Act of 2005?

The Civil Marriage Act, S.C. 2005, c. 33 was a federal statute passed by the Liberal government of Paul Martin on July 20, 2005 that made same-sex marriage legal across Canada by defining marriage as 'the lawful union of two persons to the exclusion of all others'. The Act came into force on July 20, 2005 upon royal assent. Canada was the fourth country in the world to legalise same-sex marriage nationally (after the Netherlands in 2001, Belgium in 2003, and Spain on July 3, 2005) and the first in the Americas. The Act formalised what was already legal in eight provinces and one territory through provincial court rulings.

The Civil Marriage Act emerged from provincial court rulings since 2003. The Halpern v. Canada (Attorney General) decision of the Ontario Court of Appeal on June 10, 2003 struck down the common-law opposite-sex definition of marriage as violating section 15 of the Charter of Rights and Freedoms. The Court declared marriage to include 'two persons'. Similar decisions followed in British Columbia (July 8, 2003), Quebec (March 19, 2004), Yukon (July 14, 2004), Manitoba (September 16, 2004), Nova Scotia (September 24, 2004), Saskatchewan (November 5, 2004), Newfoundland and Labrador (December 21, 2004), and New Brunswick (June 23, 2005). By the time the Civil Marriage Act passed, same-sex marriage was already legal in eight provinces and one territory through provincial court rulings, covering about 87 per cent of the Canadian population.

The federal government had referred the constitutionality of same-sex marriage to the Supreme Court of Canada in 2003. The Reference re Same-Sex Marriage decision of December 9, 2004 ruled that the federal Parliament had jurisdiction to enact same-sex marriage and that civil same-sex marriage was constitutional. The Court declined to rule on whether the common-law opposite-sex definition was discriminatory (allowing the issue to be addressed by Parliament rather than imposed by the judiciary). Religious officials retained the right to refuse to perform same-sex marriages contrary to their religious beliefs.

The Civil Marriage Act passed the House of Commons on June 28, 2005 by 158 to 133 votes (with most Liberals supporting and most Conservatives opposing; the vote was a free vote on conscience matters). The Senate passed the Act on July 19, 2005. Royal assent followed on July 20, 2005. About 47 per cent of MPs in the new Conservative government of Stephen Harper (elected January 23, 2006) had opposed the Act. Harper introduced a motion in the House of Commons on December 7, 2006 to revisit the definition of marriage; the motion was defeated 175 to 123, and Harper subsequently declared the issue settled. Canada is now widely regarded as one of the most LGBTQ-friendly countries in the world. The Act has been upheld in subsequent court challenges and remains a foundational civil-rights statute.