Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?
The AGC points out that the new legislation would change one aspect of the legal capacity to marry for civil purposes, by stating that marriage “is the lawful union of two person to the exclusion of all others.” The legal capacity to marry is Parliament’s exclusive domain. The Constitution Act (1867) gives Parliament jurisdiction over “capacity”, such as “prohibited degrees of consanguinity or the existence of a prior marital relationship. The provinces have jurisdiction over pre-ceremonial requirements and the qualifications of the person performing the ceremony.” Contrary to the claims of faith-based opposition, marriage has always been evolving, and the AGC illustrates in its Factum examples where Parliament has modified the terms of capacity. “In 1882, for example, Parliament passed legislation repealing the prohibition against marriage between a man and the sister of his deceased wife. In 1990, Parliament replaced the old law on prohibited degrees of consanguinity with the Marriag
The Court said that the “living tree” approach to the Constitution and the Charter must be applied here because it “ensures the continued relevance and, indeed, legitimacy” of both (para. 23). The meaning of marriage is not fixed at the time the Constitution was enacted in 1867. Rather, marriage must be viewed as part of the evolution in Canadian society since that time, including the fact that Canada is a pluralistic country and the fact that same-sex marriage has now been recognized in seven Canadian jurisdictions and two European countries (para. 25). The Court also clarified that the Government’s proposed legislation is only about “civil marriage as a legal institution”, and that it does not affect religious marriage (para. 42). Marriage and civil unions are separate legal concepts, and each must comply with the Charter. The Court added that “civil unions are a relationship short of marriage and are, therefore, provincially regulated” (para. 33). The definition of marriage is withi
The AGC points out that the new legislation would change one aspect of the legal capacity to marry for civil purposes, by stating that marriage “is the lawful union of two person to the exclusion of all others.” The legal capacity to marry is Parliament’s exclusive domain. The Constitution Act (1867) gives Parliament jurisdiction over “capacity”, such as “prohibited degrees of consanguinity or the existence of a prior marital relationship. The provinces have jurisdiction over pre-ceremonial requirements and the qualifications of the person performing the ceremony.” Contrary to the claims of faith-based opposition, marriage has always been evolving, and the AGC illustrates in its Factum examples where Parliament has modified the terms of capacity. “In 1882, for example, Parliament passed legislation repealing the prohibition against marriage between a man and the sister of his deceased wife. In 1990, Parliament replaced the old law on prohibited degrees of consanguinity with the Marriag
Related Questions
- Must a Catholic oppose gay rights legislation, such as legislation that permits civil marriage for same-sex couples or allows adoption by LGBT persons?
- Is the proposed legislation within the exclusive legislative authority of the Parliament of Canada?
- Why is it so important to legalize same-sex marriage through a legislative or popular vote?
