The Canadian Supreme Court has ruled that same-sex marriage is constitutional (also see the New York Times article). The decision was unanimous, 9-0. Prime Minister Paul Martin has declared that he will introduce same-sex marriage legislation in January.
Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
The mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.The Court was responding to four reference questions posed with respect to a draft bill. Regarding the bill, they said:
...we note that s. 1 embodies the government's policy stance in relation to the s. 15(1) equality concerns of same-sex couples. This, combined with the circumstances giving rise to the Proposed Act and with the preamble thereto, points unequivocally to a purpose which, far from violating the Charter, flows from it.Here, "s. 1" refers to Section 1 of the bill, which declares "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others," and "s. 15(1)" refers to Section 15 of the Canadian Charter of Rights and Freedoms, which establishes equal rights before the law. In the above, the Court answers the critics who have argued that same-sex marriage laws would violate the freedom of religion established by Section 15.
Arguing against the position that "the institution of marriage escapes legislative redefinition," the Court referred to the 1930 case that addressed whether or not women should be qualified for appointment to the Senate:
Lord Sankey acknowledged, at p. 134, that "several centuries ago" it would have been understood that "persons" should refer only to men. Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.