COMPARING CANADIAN AND AMERICAN LAW RE SSM: Joanna Grossman

...Since 1999, throughout Canada, same-sex couples have been able to enter, by contract, into common-law marriages (marriages by consent without the benefit of solemnization or a license).

More recently, within the last eighteen months six Canadian provinces (Ontario, British Columbia, Quebec, Manitoba, Nova Scotia, and Saskatchewan) and the Yukon territory have each ruled that banning same-sex marriage violates the Canadian Constitution. Only one provincial government (Alberta) officially opposes same-sex marriage. And commentators predict that the remaining jurisdictions, if asked in an appropriate case, will join the majority of seven. ...

Nevertheless, some argued to the Canadian Supreme Court that the Canadian Parliament's power over marriage, though broad -- does not give Parliament authority to redefine marriage to include same-sex couples. They have said that would violate Canada's fundamental law, its Charter of Rights and Freedoms -- which trumps Parliament's laws, just as the U.S. Constitution trumps federal statutes.

According to this view, the definition of marriage is constitutionally fixed to mean whatever it did in 1867, when the Constitution Act was passed. And at that time, the definition of civil marriage was bound to its religious roots, and was defined as the "voluntary union for life of one man and one woman, to the exclusion of all others."

But the Canadian Supreme Court refused to see Canada's fundamental document as encompassing only "frozen concepts"; it saw it, instead, as a "living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life." Such an approach ensures, the Court reasoned, "the continued relevance and, indeed, legitimacy of Canada's constituting document." ...

Many American conservatives have suggested that same-sex marriage would be less objectionable if mandated by a legislature. We will soon see if their Canadian counterparts hold the same view.

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posted by Eve at 9:03 PM VOTE

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