Canada and Same-Sex Marriages

The headline reads, “Canadian High Court OKs Same-Sex Marriage.” In the story, carried by the Associated Press (AP), we find that the most likely outcome of the Canadian Supreme Court’s ruling will be the introduction of legislation to approve same-sex marriages on a national level. The legislation, to be introduced early in 2005, is expected to pass without difficulty, making Canada the third nation, with Belgium and the Netherlands, to make same-sex marriages legal.

The head of the ruling Liberal Party, Prime Minister Paul Martin, has reportedly said that party members in Parliament are free to vote their consciences; but that all Cabinet members must support the legislation. I suppose that this resonates with me, in that it calls to mind the situation that developed in the Episcopal Church in the mid-1990’s, leading us to make the move to become Orthodox. The House of Bishops met in September, 1995, to consider the recommendations of a committee that had been established by the 1994 General Convention, charged with the task of finding a way to keep both those who favored and those who opposed the ordination of women within the church. This committee proposed the amendment of the canons to require that any leader of the church, lay or ordained, who spoke against the ordination of women be removed from their position. Knowing that if I spoke my mind about what the Church has always taught and believed could lead to my being defrocked, I saw that this proposed change, adopted in a straw vote by the bishops, and subsequently by ECUSA as a whole at the 1997 General Convention, would be the metaphorical “bullet in the back of the head” for persons such as me. It was the “trigger event” that led us to make the change we had been longing for – to become Orthodox.

It should be noted that the court decision states that religious officials cannot be required to perform such marriages against their beliefs. Presumably, the legislation that will be offered will have the same safeguard. Here again, however, there is an ECUSA connection. When, in 1974, the ordination of women, originally performed in violation of the Constitution and Canons of ECUSA, was considered at the 1976 General Convention following the “ordinations,” it was determined that, in effect, the ordinations were not “invalid”; they were instead, “irregular.” With an amendment to the Canons of the Church, the situation was “regularized.” In 1977, the House of Bishops adopted what came to be known as the “conscience clause”; the concluding paragraph of the “Statement of Conscience” adopted at their meeting in Port St. Lucie provided that:

In the light of all this and in keeping with our intention at Minneapolis, we affirm that no Bishop, Priest, Deacon, or Lay Person should be coerced or penalized in any manner, nor suffer any canonical disabilities as a result of his or her conscientious objection to or support of the 65th General Convention’s action with regard to the ordination of women to the priesthood or episcopate.

In the debate leading up to the 1997 change in the canons, the argument was advanced, to the effect, that “opponents of women’s ordination have had almost twenty years to come to grips with it. It’s time they either get with the program, or get out.” Thus, while it appears on the basis of today’s court decision that there is a “conscience clause” regarding churches and a protection from a requirement to perform same-sex marriages, who is to say that this cannot, and will not, be changed in the future? The groundwork is already there…

There is another significant element of the AP report that is not immediately obvious from the headline and opening paragraphs. The decision rendered by the court was apparently set in motion by a request made by former Prime Minister Jean Chretien, who asked the court to respond to these three questions:

• Does the federal government have exclusive authority to define marriage?
• Does the charter protect religious groups from having to perform gay weddings against their beliefs?
• Is the proposed same-sex marriage law constitutional?

Prime Minister Martin added a fourth question: Is the traditional definition of marriage - between one man and one woman - also constitutional? (The court declined to respond to the fourth question; at least, for now.)

I’m wondering what prompted the fourth question? Is there some quirky provision in Canadian law that is open to diverse interpretations? Or is this looking for another way to “open the door” for more than just same-sex marriages?