Mouvement laïque québécois

Civil Marriage

YES to the Good Intentions of the Minister of Justice
NO to the Proposed Legislation as Currently Drafted

(Statement of the Mouvement laïque québécois [Quebec Secular Movement] Concerning Proposed Marriage Legislation, September 2003)

The Mouvement laïque québécois (MLQ, Quebec Secular Movement) strongly supports the expressed intention of the government of Canada to make civil marriage accessible to same-sex couples as well as its desire to respect the freedom of religious groups to establish their own definition of religious marriage in accordance with their particular convictions. The MLQ nevertheless disagrees with the text of the proposed legislation as drafted by the Minister of Justice in order to achieve these two goals. Firstly, the proposed definition of marriage is not in fact a definition. Secondly, and more importantly, the proposed legislation encroaches upon exclusive provincial jurisdiction with regard to the celebration of marriages and thus would, in its current form, give federal sanction to the right which provinces have granted to religious authorities to celebrate civil marriages.

The MLQ proposes that the Quebec definition of civil union be used as a model to define marriage. It opposes any mention whatsoever, in federal legislation, of the right of churches to celebrate marriage. It asks that the Quebec government restrict the performance of civil marriage to civil officers specifically mandated as its representatives.

The Essential Distinction between Marriage and Legitimate Fertility

The civil institution of marriage does not require that the wedded partners be fertile. Furthermore, no law forbids fertility among unmarried couples. Marriage is not compulsory for anyone. It exists essentially to protect the freedom of couples who wish to use this institution to obtain official recognition of their consensual union and to invite society as a whole to respect their life choice. The definition of marriage which the federal legislator much establish in order to conform to the Charter of Rights and Freedoms must be consistent with this approach and must not compromise the freedom of persons and couples in matters of fertility.

Of course many couples get married (or form an unmarried union) with the intention of founding a family. This is as it should be, and will continue to be the case. Government policies must assist such couples (married or not) in the task of raising children and adequately meeting their needs, without however imposing any constraints on the institution of marriage. It is our opinion that society as a whole must assume a collective responsibility in this area.

Married couples can be very good parents, just as they can also be very bad parents. The same observation can be made with respect to unmarried couples, the majority of whom fulfill their parental responsibilities with diligence and love. In the course of the last thirty years, we have witnessed an increasing separation, both in word and deed, between marriage and parenting. Legislators must take account of this evolution. Marriage is no longer defined as the only place or the compulsory nexus for the procreation and education of children. It has become the expression of two adult persons’ free choice to seek official recognition of their desire to live together and to declare publicly their mutual commitment. In light of this, there is no reason to deny the accessibility of civil marriage to couples of the same sex who wish to make a mutual commitment to respect the rights and obligations implied by their choice of becoming life partners.

The Definition of Marriage

As for the definition of marriage, we are, of course, in complete disagreement with current provisions, which, like the legislation proposed by Minister Martin Cauchon, say practically nothing about the nature of marriage and which, in addition, have the serious flaw of being discriminatory by restricting marriage to heterosexual couples only.

A great deal of patience and a well honed ability to read between the lines are required in order to find in federal legislation any substantive definition of marriage. The only federal bill (L.C. 1990, ch. 46) currently in effect, whose abbreviated title is “Bill on Marriage”(with, parenthetically, the stipulation “prohibited relations”), contains neither a definition of marriage, nor any attempt at a definition, nor any indication that marriage should be restricted to couples consisting of one man and one woman. It is only in a bill whose title does not even contain the word marriage (2000, ch.12), and whose intent is to modernize programs of benefits and responsibilities in Canadian legislation, that we have been able to hunt down at least the beginnings of an auxiliary definition of marriage as “the legitimate union of a man and a woman to the exclusion of all others.”This embryonic definition should normally apply only to the bill in which it appears, given the limited scope of that bill. Nothing in any federal legislation indicates what criteria should be used to evaluate the legitimacy of a union which is required by this bill to be legitimate. The full judicial competence of the persons who commit to each other in a marriage and their ability to make independently and autonomously this long term commitment are not mentioned as conditions of validity or as criteria of legitimacy. The age required to undertake marriage is not mentioned. No mention either is made of the solemn and public nature of the commitment which results from the marriage contract. Nothing indicates that marriage must be celebrated civilly (in conformity with provincial or territorial legislation) in order to be valid. Nothing specifies the particular character of the union called “marriage.”If we limit our considerations on the subject of marriage strictly to what is explicit in federal legislation (taking into account both the Bill on Marriage and the auxiliary definition referred to above), then we can conclude that anything that unites a man and a woman (in whatever way) legally constitutes a marriage, provided that that union is not illegitimate (?) and provided that it does not involves persons who are too closely related.

In the proposed bill submitted by minister Martin Cauchon, the words “a man and a woman”have simply been replaced by “two persons”in the definition of marriage in L.C. 2000, ch.12. This is perhaps a step in the right direction, but it is rather inadequate. The Mouvement laïque québécois asks that a substantial definition be included in the bill; it therefore proposes that the federal legislator model its definition of marriage on that of civil union given in article 521.1 of the Quebec Civil Code. Furthermore, the new marriage legislation should indicate clearly that a marriage is not valid until it has been performed in accordance with the relevant laws of the appropriate province or territory. The result would be similar to the following:

1. Marriage is a civil union contract between two adult persons who express freely their mutual informed consent to become life partners as well as their commitment to respect the rights and obligations implied by that condition.
2. A marriage contract may be established only between persons who are free of any former marriage ties (or any ties which are civilly equivalent to marriage) and provided that neither of the two persons is a descendant, ancestor, brother or sister of the other.
3. A marriage is only valid after having been performed in accordance with the relevant laws of the appropriate province or territory. A failed marriage may be dissolved by a court on the request of one or both of the two persons.

Freedom of Religion and Civil Marriage

Addressing the Canadian Bar Association last August 18, the Minister of Justice Martin Cauchon, referring to the second article of his proposed bill, stated that it “protects the right of religious groups to refuse to perform marriages which are inconsistent with their beliefs.”This is an admission of an attempt by federal legislation, in this case the marriage bill, to encroach upon an area of exclusive provincial jurisdiction. What especially worries the MLQ in this respect is that such a provision could be interpreted as an implicit confirmation and official sanction of the right, given by provinces to religious authorities, to continue to perform civil marriages whenever those authorities are willing to do so. We continue to defend freedom of belief and freedom of religion as guaranteed by the charters of rights and freedoms of both Canada and Quebec. But these guarantees do not imply the right of religious authorities to perform civil marriage.

The Mouvement laïque québécois considers that real religious freedom requires a clear separation between matters of civil law and civil authority on the one hand, and matters of faith and religious authority on the other. In this context, the MLQ supports the principle of a complete separation between the civil performance of civil marriage and the religious celebration of religious marriage. As long as the religious celebrant is authorized to perform both civil and religious marriages, there exists a conflict of interest and of conviction for those who must deal with two distinct institutions (civil marriage and religious marriage) which are based on two different definitions and have different effects (civil, material and temporal effects in one case; religious and spiritual effects in the other). The best way to protect the freedom of conscience of religious celebrants with regard to civil marriage is to assign the performance of that ceremony to civil officers designated by the state as its representatives. It is, no doubt, beyond the responsibility of federal legislation to establish the clear separation between civil and religious marriage that the MLQ supports. Nevertheless, the federal government should restrict itself to matters which are clearly in its own domain and thus abstain from giving directives to provincial legislators in areas of exclusive provincial jurisdiction. We are of the opinion that Quebec legislation should impose that complete separation, and we are concerned that it not be prevented from doing so.

The article of the proposed bill, which deals with religious freedom, could, on first reading, appear unobjectionable. The article stipulates that “this bill has no effect on the freedom of religious authorities to refuse to perform marriages which are inconsistent with their religious beliefs.”A legal provision is never just a simple statement of fact; it always has some impact on decisions and standards. At the very least, this particular provision indicates that the federal legislator wishes the bill to have no effect on the freedom of religious authorities with regard to the performance of civil marriages (and thus, the federal legislator wants provinces to respect that freedom). The interpretation given by the Minister of Justice goes beyond this. According to his statements, this provision is not merely an inducement directed at the provinces: it “protects the right (…) to refuse to perform (…).”But the right to refuse presupposes the continuation of the practice for which this right was granted; in other words, it implies the right to accept. This implies, for example, that Quebec legislation would have to maintain the freedom of religious authorities to accept or refuse, on a case-by-case basis, the performance of a civil marriage, based on whether or not that marriage is consistent with their beliefs and compatible with their religious celebration of marriage. If the courts ratified this interpretation of the federal Minister of Justice, then Quebec could not, in future, decide to restrict the performance of civil marriage to civil officers.

If the federal legislator wishes to protect religious freedom while still remaining within its own jurisdiction, then the following formulation, for example, would be appropriate:

This bill has no effect on the freedom of religious groups to define religious marriage as they wish and consistent with their particular convictions. However, the bill recognizes, for civil purposes, only civil marriages which correspond to the definition given in this bill and are performed in accordance with provincial and territorial legislation.

In Conclusion

The federal legislator can no longer base its considerations purely and simply on Common Law when defining an institution such as marriage which has undergone profound modifications over the centuries. We need a substantive legal definition, which corresponds to the mentality and aspirations of the men and women of today. We require a legislative definition, which respects the letter and the spirit of the Charter of Rights and Freedoms. We want federal marriage legislation that respects the limits of federal jurisdiction and in particular which does not prevent the provincial legislator from assigning exclusive responsibility for the performance of civil marriage to civil officers.