What was the Reference re Same-Sex Marriage (2004)?

The Reference re Same-Sex Marriage is a 2004 advisory opinion of the Supreme Court of Canada confirming that the federal Parliament had constitutional authority to redefine civil marriage to include same-sex couples and that such redefinition would not violate the religious-freedom rights of religious officials who declined to perform same-sex marriages. The opinion paved the way for the Civil Marriage Act, which received Royal Assent on July 20, 2005 and made Canada the fourth country in the world to legalise same-sex marriage nationally.

The reference followed a wave of provincial appellate decisions that extended civil marriage to same-sex couples on Charter equality grounds. Halpern v. Canada (Attorney General) (Ontario, June 10, 2003) was the first such ruling, followed by EGALE Canada v. Canada (British Columbia, July 8, 2003), Hendricks v. Quebec (Quebec, March 19, 2004), and similar decisions in Manitoba, Saskatchewan, Nova Scotia, Yukon, and other provinces by 2005. Prime Minister Paul Martin's government drafted the federal Civil Marriage Act and referred four questions about its constitutional validity to the Supreme Court before introducing the bill in Parliament.

The court answered three of the four reference questions. First, the federal Parliament had exclusive jurisdiction under section 91(26) of the Constitution Act, 1867 (marriage and divorce) to redefine civil marriage; the provincial section 92(12) jurisdiction over the solemnisation of marriage was not affected. Second, the proposed extension of civil marriage to same-sex couples was consistent with the Canadian Charter of Rights and Freedoms. Third, the religious-freedom protections in section 2(a) of the Charter and the section 27 multicultural-heritage provision protected religious officials who declined to perform same-sex marriages. The court declined to answer whether the common-law definition of marriage (man and woman) was constitutional, since the matter was already overtaken by lower-court decisions.

The Civil Marriage Act passed third reading in the House of Commons by 158-133 on June 28, 2005 and in the Senate by 47-21 on July 19, 2005, receiving Royal Assent the next day. Canada became the first country outside Europe to legalise same-sex marriage nationally and the fourth in the world after the Netherlands (2001), Belgium (2003), and Spain (2005). The Civil Marriage Act amended the federal Marriage (Prohibited Degrees) Act to include the extended definition and provided protection for religious officials. Subsequent litigation including Halpern, Reference re Marriage Commissioners Appointed under The Marriage Act, 1995 (Saskatchewan, 2011) and Trinity Western University v. Law Society of Upper Canada (2018) addressed the balance between same-sex equality and religious freedom in adjacent contexts.